
    WRIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Ceiminal Law (§ 1056) — -Appeal—Reservation or Grounds off Review — Exceptions.
    Under Code Or. Proc. 1911, art. 743, as amended by Acts 33d Leg. c. 138, providing that the judgment in a criminal action shall not be reversed for immaterial errors, and that all objections to the charge shall be made at the time of the trial, errors in the instructions cannot be reviewed, unless excepted to at the time of the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec.. Dig. § 1056.]
    2. Criminal Law (§ 1056) — Appeal— Scope off Review — Constitutional and Statutory Provisions.
    Code Cr. Proc. 1911, art. 743, as amended by Acts 33d Leg. c. 138, relating to harmless error and objections to instructions, is valid and binding on the Court of Criminal Appeals, and restricts the question reviewable by that court, since the Constitution gives the right of appeal only under such conditions and restrictions as may be provided by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    3. Criminal Law (§ 396) — Evidence—Admissibility.
    On a trial for homicide, where accused’s wife testified in his behalf that the relations between their family and deceased’s family had been very unpleasant; that deceased’s wife about two weeks before the homicide cursed accused, and called him a vile name; that shortly before the homicide she saw deceased cleaning his gun; that deceased’s wife told her that he had his gun in the house loaded, and that if M. turned the hydrant off again deceased would kill him; that she told her husband about this conversation, and that she thought deceased cleaned his gun to kill accused — the state was properly permitted to introduce testimony that accused’s wife made none of the statements testified to, that the relations between the two families were friendly and that M. never cut off the hydrant, in order to show that the conditions as shown by accused did not exist, and that the killing took place under the circumstances testified to by the state’s witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    4. Criminal Law (§§ 364, 413) — Evidence— Self-Serving- Declarations.
    A statement by accused long after he had left the scene of the homicide was not res ges-tae, but a self-serving declaration, and properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818, 928-935; Dec. Dig. §§ 364, 413.]
    5. Homicide (§ 338) — Appeal — Harmless Error — Admission off Evidence.
    Where, on a trial for homicide, accused on the cross-examination of a witness, wbo testified that he resisted arrest, sought to show that, he gave as his reason for refusing to give up his gun the mistreatment and threats to lynch him when he was previously arrested thus showing the fact of such previous arrest, the admission of testimony if his threats against the men who arrested him before, if erroneous, did not require a reversal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    6. JIomicide (§§ 231, 241) — Murder with Implied Malice.
    On a trial for homicide, accused testified that he told deceased that if he did not tear a playhouse and fence from his fence he would do so himself; that deceased said if he did, he would kill him; that after eating his supper he decided .to tear the playhouse and fence loose from his fence, and with his son went into deceased’s yard and began to tear them loose; that they heard deceased coming home, and returned to their own yard; that when deceased came along he told him that he had torn the outfit down, and did not want it nailed back, that deceased then remarked, “Yes, and G-d d-n you, I will get my gun and fill you both full of lead,” and started to the house; that he did not think it would do to let deceased get his gun; and that he raised his gun and shot deceased. Held, that his own testimony did not justify his conduct, nor reduce the offense below murder upon implied malice if it did not show express malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 479, 504; Dec. Dig. §§ 231, 241.]
    On Motion for Rehearing.
    7. Ckiminal Daw (§ 1056) — Statutory Provisions — Reservation ox Grounds or Review-Exceptions.
    Acts 33d Leg. c. 138, amending Code Cr. Proc. 1911, arts. 735, 737, 743, relate to submission of instructions to attorneys for examination before giving them to the jury, and provide that convictions shall not be set aside for harmless errors. Held, that these sections as so amended apply to trials subsequent to the taking effect of that chapter for offenses committed prior to its taking effect, since they relate to mere matters of procedure which are governed by the law in force at the time of the trial
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    S. Criminal Law (§ 946) — New Trial-Waiver op Objections.
    Under such sections, where on a trial for an. offense committed prior to the taking effect of such amendatory chapter the trial court submitted the charge to accused’s counsel for criticism and objection, and allowed him a reasonable time to examine it, and he failed to object thereto or to suggest amendments, objections to the charge could not be made in the motion for a new trial, though the trial judge at the opening of the trial announced that accused would be tried under the law and procedure in force at the time of the commission of the offense, unless accused filed a written request that he be tiled under the law and procedure in force at the time of the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2353; Dec. Dig. § 946.]
    Appeal from District Court, Midland County; S. J. Isaaeks, Judge.
    Jim Wright was convicted of murder and he appeals.
    Affirmed.
    Ross & Hubbard, of Pecos, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant/ was prosecuted and convicted of murder, and his punishment assessed at 30 years’ confinement in the state penitentiary.

The crime with which appellant was charged was alleged to have been committed on the 18th day of October, 1912. The trial was had in September, 1913. Appellant, in the record, admits that the court, be'fore the argument was begun, furnished him with a copy of the charge, and he read it; and he further admits that he at that time took no exception to the charge as prepared and submitted to him, and which was subsequently read to the jury, but after the verdict, in his motion for a newi trial he vigorously assails the charge of the court. His contention is that, as the offense with which he is charged was committed prior to July 1st of last year, although tried subsequent to that date, the law regulating the trial of criminal cases as passed by the last Legislature (chapter 138) should not apply, and he could still complain of the charge of the court for the first time in his motion for a new trial. Mr. Black in his work on Interpretation of Laws, says: “No person has a vested right in any form of procedure. He.has only the right of prosecution or defense in the manner prescribed for the time being, and, if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage. Statutes which relafe to the mode of procedure, and affect only the rights, are valid; and it is no objection to them that they are retrospective in their operation. It is competent for the Legislature at any time to change the remedy or mode of procedure for enforcing or protecting rights, provided such enactments, do not impair the obligations of contracts, or disturb vested rights and such remedial statutes take up proceedings in pending causes where they, find them; and, when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amenda-tory aqt.” Old article 743 reads before amendment that the “error” in the charge must “be excepted to at the time of the trial, or on a motion for a neio trial.” In amending and re-enacting this provision of the Code, the words “or on motion for a new trial” were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. By the Constitution of this state the right of appeal is given only under such conditions and restrictions as may he provided hy law; consequently this restriction as to what questions we shall review on appeal is valid and binding bn us, and we have no authority to ignore it, nor construe it out of existence. If it is considered that the provisions are too restrictive, the remedy lies in an application to the Legislature to amend the article. We are powerless to give relief from its provisions so long as it is the law; consequently we are without authority to review the charge of the court unless complained of at the time of the trial, unless fundamental error is presented.

Mrs Jim Wright, wife of appellant, testified, in his behalf, that the relations between their family and the family of Mr. Steed (deceased) had been very unpleasant for two years; that Mrs. Steed some two weeks before the homicide had cursed appellant and called him a s-n of a b-h; that for some months they had hardly been on speaking terms; that a short time before the homicide she saw deceased cleaning his gun in the yard, and that Mrs. Steed had informed her that deceased had his gun in the house loaded, and if Mr. Manahan ever turned the hydrant off again, Mr. Steed would kill him; that she had informed her husband about this conversation, and told him to be on his guard, that she thought that deceased had cleaned his gun to kill him, appellant. Mrs. Steed testified, denying all this, and said that prior to the night of the killing in so far as she knew, the feeling between the two families was friendly; denied that she had called appellant a s-n of a b-h; denied that she had ever told Mrs. Wright that the gun was in the house loaded, and if Mr. Manahan ever turned the water off again her husband would' kill him. It will be noticed that Mrs. Wright said it was on this circumstance that she had warned her husband to be on his guard, and that she believed deceased was cleaning it up to kill him, appellant.

Mrs. J. T. Camp testified that she lived a close neighbor to appellant and deceased; that she frequently saw Mrs. Wright and Mrs. Steed conversing, that the children visited, and that the relations between the two families were friendly, or so seemed to her. On cross-examination she answered that there might have been friction between the two families of which she was unaware.

Mr. Manahan was permitted to testify that he had never cut off. the hydrant at Mr. Steed’s in his life.

This testimony was objected to by appellant, but we think it clearly admissible. The previous relations, as sworn to by 'Mrs. Wright and other witnesses, were introduced by appellant as tending to show what, in the light of what he says occurred at the time of the homicide, led him to believe his life was in danger, and it was perfectly legitimate for the state to show, if it could, that these conditions did not exist, and the killing took place under the circumstances testified to by the state’s witnesses.

Appellant desired to prove by Joe Kraus what he, appellant, told him after the homicide. This was not told under circumstances to render it res gestae of the transaction, and would have been but a self-serving declaration made a long time after appellant had left the scene of the homicide; consequently the court did not err in excluding this testimony.

By the only other bill in the record it is shown that T. X. Morehead was permitted to testify, over appellant’s objection, that defendant, some time after the commission of the offense, requested him “to get the two sons of bitches who arrested him before, in order that he might cut them down.” The connection in which this testimony was admitted is not shown by the bill, nor can we ascertain by the statement of facts the connection in which it was introduced, for no such testimony appears in the statement of facts. However, the bill of exceptions was approved, and this governs, and we conclude that the statement was testified to by the witness. The objection made by appellant was that such “statement, if made, was immaterial and irrelevant, and did not tend to prove the commission by the defendant of the offense of which he is charged, but did tend to inflame the minds of the jury against defendant by indicating that defendant had himself theretofore been arrested for an offense which the state neither sought to prove nor described to the jury.” Of course, it would be inadmissible to show that this defendant had committed any other and different offense not growing out of this transaction. But that defendant had theretofore been arrested is shown by the record by other witnesses and other testimony not objected to. Mr. Morehead was permitted to-testify that appellant resisted arrest when he went to arrest him for this offense. Then on cross-examination appellant sought to prove by this witness that he gave, as a reason for refusing to give up his gun, the way they had treated him before; that they had talked of lynching him before; that they had then threatened to lynch him and had mistreated him. It is thus seen that the fact that appellant had been theretofore arrested was not communicated to the jury by the statement above objected to, but got before the jury by reason of his resisting arrest, and refusal to give up his gun on this occasion, and appellant’s explanation, developed by his counsel, of his conduct and in seeking to explain it away. This is the only error complained of in a way we could review it, if error it be; and, under the evidence adduced legitimately and without objection, it would not be such «error as would, call for or necessitate a reversal of the case.

The evidence would show that appellant and Mr. Steed were both carpenters, residing at Pecos, in Reeves county. Only a-. short time before the homicide they ■ had been at work together on houses erected in that town. Deceased is not shown to have had any animosity towards appellant other than by the testimony of appellant and his wife, who say that deceased became angry because appellant tore loose a playhouse made for his children, and which was fastened to a fence running between their houses, while on the other hand, by the testimony of witnesses, it is shown that appellant had no kindly feeling toward Mr. Steed. All the testimony shows that Mr. Steed bore the reputation of a peaceable and law-abiding citizen. On the evening of the tragedy, according to the state’s testimony, deceased went home, talked a while to his daughter, who then went to a moving picture show; his wife told him about a neighbor who wanted to sell a store, and he went to see it, purchasing the store. His wife, as soon as the girls left, took the baby girl and went to meet him; they returning home together. His wife says deceased was walking along, with the child in his arms, playing with it, when appellant called, and says, “Steed, I have tore that G — —d d-d playhouse down, and I do not want it put up there any more, and if he did put it up, he would shoot his G-d d-d head off.” That deceased replied, “What is the matter with you, anyhow?” Appellant replied, “I mean what I say.” That deceased then remarked, “Oh, it would be like another Mexican case,” when appellant said, “G-d d-n your soul, to hell, it is not a Mexican I am after this time; you are the man I want,” and shot him. Deceased was in his shirt sleeves, and had no weapon. Appellant’s version is that he met deceased late in the evening, and told him if he did not tear the playhouse and his fence from appellant’s fence, he, appellant, would do so, when deceased replied he would kill him if he did. That he, appellant, then went .in and ate his supper. After eating his supper he decided to tear the playhouse and fence loose from his fence, and, getting his gun, he called his son and they went out there and climbed the fence over in deceased’s yard, and began to tear the playhouse and fence loose. That he heard the deceased coming home, when he and his son got back over the fence into his own yard, and when deceased came along he “told him he had tom that outfit down, and did not want it nailed back there,” when deceased remarked, “Yes, and G-d d-n you I will get my gun and fill you both full of lead,” and started to the house. That he, appellant, did not think it would do to let him go on and get his gun, and he raised his Winchester and shot him.

The dying statement of deceased would show1 an unprovoked killing. Morehead says when he got there appellant remarked: “I guess you are after the man that done that' shooting. I done it, and I am not a d-n bit sorry of it.” Thus it is seen that appellant’s own testimony would not justify his conduct, nor reduce the offense below murder upon implied malice if indeed it does not show express malice.

The judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing, in which he states that the court erred “in subjecting appellant to a trial under a system of law and procedure not in force at the time of the alleged commission of the offense.” Appellant contends “that the trial judge announced in open court, before entering upon the trial, that defendant would be tried under the law and procedure in force at the time of the commission of the offense, unless the defendant should then and there file a written request that he be tried under the law and procedure in force at the time of announcement for trial,” and for this reason he contends that he ought to be permitted to complain of the charge in the motion for -a new trial, although he, at the time it was submitted to him, made no objections to the charge as-given. Had the trial judge tried appellant under the old law and procedure, and not submitted the charge to appellant’s counsel for criticism and objection, we certainly would allow him to object thereto in the motion for a new trial. But whatever the trial court may have announced before the trial, it is certainly made clear by this record that when the testimony was introduced and closed the court then prepared his charge and submitted it to counsel as is provided in chapter 1S8 of the Acts of the Thirty-Third Legislature. Appellant then knew the court was not proceeding under the old procedure, but ¡under the new, as adopted by the last Legislature, and if the charge was erroneous, or did not present the issues made by the testimony in such way as appellant desired, why did he not then object to the charge and suggest to the court such amendments to the charge as he thought necessary to protect the rights of his client? Of course, we would not permit one to be misled to his injury if we could prevent it, but the record in this case discloses that the court prepared his charge, submitted it to appellant’s counsel, and no objection was made thereto, and no special charges requested. This case was tried on the 8th day of September of last year, and the act of the Legislature had then been in force for some months, and in this law the Legislature has provided in article 735 that the judge, before argument begins, shall prepare his charge in writing, and shall submit same to defendant’s counsel, who “shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.” Why is this required? It is that every right of defendant may be fully protected, and Ms theory of the case fully presented. It is not intended, nor will it deprive Mm of any right, but he hereafter must be timely in asserting Ms rights, and aid the court in securing a fair and impartial trial, and what else should one desire? It is further provided in article 737 that he shall also have a reasonable time, after reading the charge of the court, to present any objection or special charge he may desire to have given. If he asks none, and does not complain of the charge of the court as given, article 743 provides that the case shall not be reversed unless an error was committed calculated to injure the rights of the defendant, and not then unless the error was pointed out in objections made to the charge as given, or in refusal of special charges requested, made at the time of the trial. If it was claimed or asserted that the trial court did not allow reasonable time to examine the charge and specify the grounds of objection, we would review the charge as given, even though the objections were made after the trial. But this is the only instance in which we are authorized to review the charge where the objections were not made at the time of the trial, or unless it is made to appear that a person has not had a fair and impartial trial. The fact that this law took effect after the alleged commission of the offense does not alter the rule where the trial took place subsequent to the time the law became effective. This law is a mere matter of procedure, and governs all trials had after its provisions went into effect.. A person has no vested right of appeal to tMs court; this is given to him1 by the Constitution under such restrictions and regulations as may be prescribed by law, and in some instances a person is denied of any' right to appeal to this court although convicted of a criminal offense. We have several times discussed this question recently, but appellant insists so earnestly that the Legislature cannot change the rules of procedure in the trial of criminal eases theretofore pending, but not yet tried, we have again reviewed the authorities and text-books.

In the case of State v. Manning, 14 Tex. 402, when the Supreme Court had jurisdiction in criminal matters, that court held that the Legislature had the authority to “change the mode of conducting proceedings upon the trial in reference to past as well as to future offenses”; that this would not be an ex post facto law; it related solely to the remedy. This case has not only been followed in this state, but has been cited approvingly in Beebe v. Birkett, 108 Mich. 236, 65 N. W. 970; Sage v. State, 127 Ind. 19, 26 N. E. 667; State v. Moore, 42 N. J. Law, 233; People v. McDonald, 5 Wyo. 526, 42 Pac. 19, 29 L. R. A. 834.

In Wharton’s Criminal Law it is held: “A statute subsequent to an offense may change the mode by which it is to be prosecuted, provided the punishment attached to the Offense is not thereby increased.” Section 43.

• Mr. Cooley in his work on Constitutional Limitations says: “So far as mere matters of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that Ms case shall be disposed of-under the law in force when the act investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice in existence when the facts arose.”

The trial court would have had no right to have ignored this statute, and had he done so, appellant would then have had real cause for complaint. Neither have we the right to ignore this law, as appellant would have Us to do, for, while no appeal would lie from our action, we are but a creature of the law, and are bound by the rules and regulations prescribed by the law of the state, and to do otherwise than obey the law as written would be a usurpation of power on our part. Appellant received the punishment formerly assessed for murder in the second degree, and Ms offense, if not justifiable, was murder in one of the degrees, under the evidence adduced on this trial. The issue of self-defense was submitted to the jury, and they find against this contention. Had some of the criticisms now leveled at the court’s charge been made when the court submitted the charge to appellant’s counsel, we are satisfied the court would have amplified the charge in some respects as appellant now contends should have been done, but they are not such matters as prevented appellant from receiving a fair and impartial trial. ' We do not think appellant’s counsel noticed these matters at the time the charge was submitted to him before being read to th.e jury, for we think he is that character of man who would promptly have called the attention of the court to them, yet we have heard some lawyers say that they sat still, let the court take care of itself, in the hope they would catch the court in error that they might assign it in the motion for a new trial, in case a conviction was had. This was not fair to the trial court, and that day has passed in Texas under the recent statute. Lawyers, in fact, hereafter must consider themselves, whether lawyers for the state or defendant, as officers of the court, and lend to the court all the aid they can, to see that a fair and impartial legal trial is had. The Legislature has provided that the “practice of setting traps” for the court must cease, and we will administer the law as written. The objection to a charge must be made before the charge is read to the jury, and if a reasonable time to do so is granted, objections will not be considered on appeal made for the first time in motion for new trial. This is tfie command of tlie law, and it we will obey.

The motion for rehearing is overruled.  