
    BURNS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.
    Rehearing Denied Nov. 13, 1912.)
    1. Criminal Law (§ 424) — Evidence—Res Gestas.
    On a trial for a homicide^ for which accused and his brother were jointly indicted, but separately tried, evidence that as the brother left the scene of the crime at full speed he waived his gun and holloed was admissible as part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 1002-1010; Dec. Dig. § 424.]
    2. Criminal Law (§ 933) — 'Verdict—Form and Language — Mistakes in Spelling.
    A verdict was returned, finding accused guilty of manslaughter and assessing his punishment at three years in the penitentiary. By direction of the court it was amended to find him not guilty of murder in the second degree, guilty of manslaughter, and to assess his punishment by confinement in the penitentiary for three years, and in the amended verdict the word “three” was misspelled “thee.” No objection to the verdict was made at the time, and judgment was entered thereon fixing the penalty at three years’ confinement in the penitentiary. Held, that the court did not err in refusing to grant a new trial on account of the misspelling of the word “three”; accused not having been injured thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2283-2292; Dec. Dig. § ■933.]
    3. Homicide (§ 300) — Instructions—Applicability to Evidence.
    Where the evidence showed that, after a •difficulty between accused and deceased, deceased gave accused until 6 o’clock to meet him at K., and that accused went home, got his brother and two loaded guns, and went to K., where he and his brother shot deceased, instructions that accused could not claim self-defense, if he and deceased mutually agreed to fight, but that if he or his brother abandoned the mutual combat, and gave deceased notice ■of such abandonment, his right of self-defense would then not be forfeited or in any way •abridged, were not erroneous, on the ground that there was no evidence of mutual combat.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616 — 620, 622-630; Dec. Dig. ■§ 300.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Walter Burns was convicted of manslaughter, and he appeals.
    Affirmed.
    W. W. Meachum and T. P. Buffington, both •of Anderson, A. F. Brigance, of Navasota, and Dean, Humphrey & Powell, of Huntsville, for appellant. E. A. Berry, Dist. Atty., •of Madisonville, Hill & Elkins, of Huntsville, •and 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
    
   PRENDERGAST, J.

Appellant was convicted of manslaughter, and his penalty fixed at three years in the penitentiary.

Originally appellant and his brother, Reason Burns, were jointly indicted for murder. They were first tried jointly, and convicted. On appeal, the judgment was reversed. The case is reported in 58 Tex. Cr. R. 463, 125 S. W. 901. Afterwards a severance was had, and the venue properly changed from Grimes to Walker county. Reason Burns was there first tried, and convicted, and on appeal that conviction was affirmed. 145 S. W. 356. In the reports of the other trials a sufficient statement of the case is made. The testimony by the state on the trial of appellant was substantially the same on this as on the trial of the Reason Burns Case. In that trial Reason Burns testified, but Walter did not; in this, of course, Reason did not, but Walter did, testify.

There was material evidence by Walter, appellant, in this, that was not in the Reason Burns Case. In this it was shown that a state of hostility existed between appellant and deceased about some hogs for a considerable time, more than or about a year and a half before the killing. Several clashes had occurred between appellant and deceased during this time. Each was mad at the other. On the evening of the killing, appellant and deceased were both at a neighborhood preaching point. In meeting on the grounds, deceased, either accidentally or on purpose, ran against appellant, striking his shoulder against appellant’s. At the moment neither said anything to the other. Very soon afterwards appellant, reflecting on the' matter, determined to ascertain whether it was accidental or an affront. He quietly approached deceased, called him off several steps, and asked him why he did him that way, and what did he do it for. Deceased replied, “God damn you, if you don’t like it, you don’t have to take it.” Appellant said, “I suppose you said, if we bothered your hogs or penned them, we just as well buy our black box.” Deceased replied, “Yes, God damn you, and I meant it,” and appellant stepped back and said, “I have no weapons, not even a pocket knife.” Deceased pulled out his watch, and said that it was something past 4 o’clock and he gave appellant until 6 o’clock to meet him at Keith. Appellant told him he would try and do so. Appellant saw deceased’s pistol at this time, when he threw his coat back and said, “I am ready right now.” That is how appellant came then to say he had no weapons, not even a pocket knife. At once after this appellant left the grounds for his home, riding rapidly all the way. In going to his home he had to pass a sister’s. He borrowed a loaded double-barrel shotgun from her, then, continuing to ride rapidly, went to his father’s. After consultation with his father and his brother Reason, they determined to go on to Keith and meet deceased; appellant claim-sing that their mission in going to meet him was a peaceable one, and for the purpose of ■settling their difficulty amicably. However, before leaving, he sent for another loaded ■gun for his brother Reason. When debating between the father and the two sons whether Reason should take a shotgun with him, his father told them, “Yes, to take the gun; that that fellow [deceased] will get you down there and kill you like a bunch of hogs.” In going from where this difficulty at the •church had occurred between appellant and ■deceased, appellant saw one of the state’s witnesses, who asked him if he was in a hurry. He replied, “Yes; I am in an awful big hurry.” He was then asked what was the matter, and replied, “I have had a spat since you left.” He was asked, “Who with?” He replied, naming deceased. He was then asked what was the matter, and said, “He has been cursing me, and I ain’t going to take it, and I am going off after some buckshot,” and appellant “lit out.” He went off up the road in a lope. Immediately after this trouble between appellant and deceased at the church, and after appellant had left for his home to arm himself and meet deceased at Keith, deceased, with companions, also left the church for Keith, which was some six miles distant. Deceased, with his companions, arrived at Keith some time before appellant and his brother reached there, and waited about there until Walter and his brother appeared on the scene. They at once met, and the killing immediately followed. Deceased was armed with a six-shooter, and on the occasion fired at least one, if not more, times at the appellant or his brother. Immediately after the killing, appellant and his brother mounted their horses and rode rapidly under whip away from the scene towards their home. At a distance of about 100 yards from the killing, both appellant and his .brother repeatedly holloed; his brother, just in front, waving his gun back and forth ■over his head at the time.

It is unnecessary to give in detail the evidence on these points. From it all it clearly and sufficiently authorized the jury to believe that the parties, deceased and appellant, by agreement met at Keith for the purpose of fighting it out or engaging in a mutual combat. The state, over the objections of appellant, proved by several witnesses that Reason Burns, within about 100 .yards of the killing, upon leaving the scene at full speed under whip, waved his gun and holloed. Appellant proved this same thing by Mrs. Turner, one of his witnesses; but after she had so testified he made a motion to exclude her testimony from the jury, which the court declined to do. This testimony was clearly res gestee and admissible.

By another bill it is shown that the jury brought in this verdict: “We, the jury, find the defendant guilty of manslaughter and assess his punishment at three years in the state penitentiary”—which was read in open court; the appellant and his attorneys being present and hearing it. The court was not satisfied with the verdict, and had the jury to amend the verdict and write it in this way: “We, the jury, find the defendant not guilty of murder in the second degree; but we, the jury, find the defendant guilty of manslaughter, and assess his punishment by confinement in the penitentiary for a term of thee years”—which verdict was also read in open court in the presence and hearing of appellant and his counsel, and “thee” was read “three,” and so understood by all parties. No objection whatever was then made to this misspelling, if so, of the word “three,” and this matter was not presented until a motion was made thereafter to arrest the judgment because of it. The original paper on which the verdict was written has been sent up, properly authenticated. Both are written with a pencil, and the word “thee,” if so, can as readily be made “three" as “thee.” There was a contest over this matter in the lower court in hearing the motion to arrest the judgment. The judge heard all the evidence, and decided that this misspelling of “three” was not sufficient to require the granting of a new trial. The judgment of the court on this verdict was entered, properly adjudging the appellant guilty and fixing his penalty at three years’ confinement in the penitentiary, and so the sentence did. No possible injury has occurred to appellant by the misspelling of this word, if so. He and no one else could be misled thereby, and such misspelling neither required nor authorized the lower court to grant a new trial because thereof, and would not justify this court in reversing the case on that ground.

The court, while it gave quite a lengthy charge, gave a most accurate and complete one, covering every phase of the case authorized or justified by the evidence and the law. It is a most admirable charge. It correctly stated the case, and then briefly gave sufficiently of what murder in the first degree was, so as to properly present the other matters in the case. The appellant, having theretofore been convicted of murder in the second degree only, was under the statute acquitted of murder in the first degree, and no finding was authorized or required by this_ charge of murder in the first degree. Then the court fully and correctly charged on murder in the second degree, manslaughter, and self-defense in all of its phases, as both applicable to appellant and to his brother Reason, as raised by all phases of the testimony. He also correctly charged on principáis.

Appellant complains of several short paragraphs of the court’s charge. One of these complaints is, that portions of the charge told the jury appellant could not claim self-defense, if he and deceased mutually agreed to fight, etc. In our opinion the evidence on this point clearly and.fully tended to show a mutual combat, or, at least, the jury could have so concluded, which made it necessary and proper for the court to correctly submit that question, which it did in the charge as a whole. Another complaint of another paragraph of the court’s charge is where the court submitted the question of an abandonment of said mutual combat, with notice of such abandonment to deceased by either appellant or his brother and, if he did, then his right of self-defense would not be forfeited or in any wise abridged, because such last charge on the subject of abandonment presupposed an agreement of mutual combat, and there was no evidence of such mutual combat. Clearly this was proper, and, if it had not been submitted, appellant might have had some just cause to complain because it was not submitted. None of the complaints as to the charge of the court are well taken.

The evidence is amply and clearly sufficient to justify the conviction. In fact, it would have clearly justified a conviction for murder in the second degree.

The judgment will be affirmed.  