
    BURNAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1911.)
    1. Homicide (§ 169) — Manslaughter — Evidence — Admissibility.
    Where accused on a trial for the murder of his father-in-law showed that decedent had made threats against him, and that he was the cause of the separation of accused and his wife, evidence that the wife had told him that she thought that, if they remained longer at the home of decedent, ’ there would be trouble, and that she thought it ’best for accused and herself to get out of the country, was admissible on the issue of manslaughter, as showing the state of accused’s mind.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    2. Witnesses (§ 383) — Cross-Examination— Collateral Matter.
    A witness for accused who testified to threats by decedent against accused, and who denied on cross-examination that he had told a third person that accused was determined to kill decedent, could not be impeached by proving that he had so stated because it related to a collateral matter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.]
    3.' Criminal Law (§ 448) — Evidence — Conclusion.
    A statement of a witness that accused had determined to kill decedent is inadmissible, as a conclusion of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    4. Homicide (§ 300) — Threats — Instructions.
    An instruction that, if decedent at the time of the killing made some overt act showing an intention to carry the threats against accused into execution, accused was justified in killing decedent, was erroneous; the language ■ of the statute being some act then done manifesting an intention to execute the threat.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dee. Dig. § 300.]
    Appeal from District Court, Wise County; J. W. Patterson, Judge.
    Roy Burnam was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    R. E. Carswell and Robt. Carswell, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   I-IARPER, J.

The appellant was indicted for the murder of John Mosier. His trial resulted in a conviction of murder in the second degree with a penalty of 20 years’ confinement in the penitentiary. The case was submitted to the jury by the court below on murder in the first and second degrees, as. well as manslaughter and self-defense. A number of questions are presented, but, on account of the disposition that shall be made of this case, it becomes unnecessary to decide many of them, as they are not likely to occur upon another trial.

In the trial of the case the testimony developed that John Mosier, the deceased, was the father-in-law of defendant, that there had been a separation of defendant and his wife, the contention of defendant being that his father-in-law had brought about this separation, and that he, defendant, was entirely blameless. The testimony on the part of defendant as proved by several witnesses shows that Mosier had made threats against the life of the defendant. One witness, Dr. Rogers, testified that the deceased sent for him at one time and asked him to prescribe for his daughter; that the deceased said he believed she was pregnant, and asked witness for medicine to produce an abortion; that Mosier stated that he had rather his daughter would “bring a child from the coal-est black nigger in the state than to bring a child from Roy Burnam,” and' that she was not going to do it if he could help it, calling defendant a damn son of a bitch. A great deal of testimony was offered pro and eon along these lines showing that the deceased was bitter toward the defendant; that he did not want his daughter to have a child by the defendant. When defendant was upon the -Witness stand, he testified that he and his wife lived with deceased at his home, but that matters grew so bad that they concluded to seek another home, that the deceased was the cause of the separation between him and his wii;e, and that his wife was in no way desirous of separating from the defendant, and he desired to prove the conversation between himself and wife after they had left the defendant’s house, in which conversation defendant proposed to swear that, while going up to McMillan’s, he stated to his wife -that he believed it would be a good idea for the defendant to take his wife and get out of the country, and asked his wife if she did not think there would be trouble, and she assented that she believed there would, and said that she thought it best for them to get out of the country, and, if they did not, they were going to have trouble; that his wife agreed to go with him. This testimony was objected to on the part of the state as being irrelevant and a conversation between defendant and his wife. This conversation was in the nature of a threat, and we think on the question of manslaugh ter, if for no other reason, this testimony was clearly admissible as showing the state of the defendant’s mind, to show that the wife had communicated to him that she thought, if they remained there longer, there would be trouble between her father and him. It was a circumstance that the jury should have received to determine the condition and surrounding of the parties before the killing, and to show that he had been advised by his wife that there would be trouble if they remained, as well as at that time. A bill of exception was reserved to the action of the court in refusing to allow the defendant to so testify. In this we think there was error on the part of the court.

Bill of exception No. 4 is to the action of the court in permitting Word Paine, over the objection of defendant, to testify that he had a conversation with one Jim Burnam the day after the killing of Hosier in Chico, and had a talk with him at Barnhill’s livery stable, and in that conversation Jim Burnam told the witness, in speaking of the defendant and Hosier: • “I begged, persuaded, and done everything I could to keep that boy from killing him, but he was determined to kill him.” This was but an expression of opinion. The court permitted this testimony to go to the jury for the purpose, as stated in bill of exception, of impeaching the witness Jim Burnam. The witness Jim Burnam had previously testified in the case at some length in which he stated several conversations that he had with the deceased in which the deceased said he intended to kill defendant, that on one occasion he took his gun and went and took a stand by the road, and would have killed the defendant had not defendant’s wife been with him. Any threat or statement of appellant would have been admissible. On cross-examination by the state he was asked if he had not told Word Paine that appellant was determined to kill deceased. He denied it. We are of the opinion that the court was in error in permitting this testimony to go to the jury; that the same was damaging and hurtful; that this was but an expression and conclusion of the opinion of this witness Jim Burnam, and that the defendant could not be bound thereby ; that it was a collateral matter, was not •original testimony in the case, could not have been introduced primarily by the state; that, when the witness Burnam answered the question, it was the end of the controversy; and that the witness could not be impeached upon a wholly irrelevant and immaterial matter. Testimony similar to this has been passed upon frequently by this court, and it has always been held that such testimony is not admissible, and it could not even serve the purpose of impeachment. It would be injecting into the case a matter highly prejudicial to the rights of the defendant. It makes the witness give a conclusion about a matter, and his judgment on his conclusion and is but substituting the issue to be tried by the jury to the witness, and making the opinion and judgment of the witness a controlling issue, and passing upon the very fact that belongs exclusively to the province of the jury. Statements or threats-' of appellant would be admissible, but not conclusions-drawn from such statements by a witness. See Drake v. State, 29 Tex. App. 269, 15 S. W. 725; Watson v. State, 95 S. W. 115, 50 Tex. Cr. R. 171; Woodward v. State, 50 Tex. Cr. R. 294, 97 S. W. 501.

As the ease will have to be reversed, we would call the attention of the trial court to an error we think in the charge on the subject of threats. While this is not complained of in the motion for new trial, yet a special charge was requested by the defendant, and refused by the court, which we think was a correct statement of the law upon the subject of threats, and should have been given. The main charge directed the jury that, if they believed that the deceased at the time of the killing made some hostile overt act showing intention to carry such threat or threats into execution, the defendant would be justified. This character of charge has been condemned by this court frequently, and should not be given. It throws upon the defendant a greater burden than the law itself; the language of the statute being some act then done manifesting an intention to execute the threat. But here the court says some hostile overt act. This, we think, is putting the matter too strong, and the special charge requested by the defendant should have been given.

For the errors indicated, the judgment is reversed, and the cause remanded.  