
    HENRY v. STATE.
    (No. 5737.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Criminal law &wkey;>539(2) — Defendant’s testimony on a former trial admissible.
    Evidence as to the testimony given by defendant on a former trial is admissible.
    2. Criminal law <&wkey;l09l (4) — Bill of exceptions to testimony of failure to find weapon on deceased’s body held insufficient.
    In homicide prosecution, bill of exceptions complaining of sheriff’s testimony that he found no weapon on the body of deceased at the time that he reached the scene of the homicide, without showing at what time he reached the body, held not to present error.
    3. Homicide <&wkey;474(6)— Sheriff’s testimony as to whether he found weapon on body of deceased admissible.
    In homicide prosecution, sheriff may generally testify as to whether he found a weapon on the body of deceased upon reaching the scene of the homicide, especially if apparent danger is the basis of self-defense; objections to such testimony, upon ground as to length of time that had elapsed since the killing and the opportunities for others to take weapons away, affecting the weight, and not the admissibility,, of such testimony.
    4. Witnesses <&wkey;269(!3) — Cross-examination in homicide prosecution held proper.
    In homicide prosecution, cross-examination of defendant’s wife as to certain trouble between herself and the wife .of deceased held admissible, in view of defendant’s examination with reference to such trouble.
    5. Witnesses <&wkey;277(5), 405(2) — Cross-examination of defendant as to statement by him as to chastity of deceased’s wife held proper.
    In homicide prosecution, cross-examination of defendant as to a statement claimed to have been made by him with reference to the chastity of deceased’s wife, objected to as extraneous matter, held proper to show the relation between the parties, and as impeaching testimony, in view of defendant’s denial.
    6. Homicide &wkey;l63(2), 188(2) — Testimony as to reputation of deceased admissible, where apparent danger and threats in issue.
    In ho'mieide prosecution, testimony as to the reputation of the deceased is generally not introducible as original testimony, but, if there have been previous threats by deceased, communicated to defendant, and there is an issue of apparent danger in connection with the threats, the reputation of deceased could be shown by the state, except where the threats are part and parcel of the immediate difficulty.
    7. Homicide <&wkey;>!63(2) — Reputation of deceased admissible, where put in issue by defendant.
    In homicide prosecution, the state would be entitled to' show good reputation of the deceased, where such reputation has been put in issue by defendant.
    Appeal from District Court, Cooke County; C. R. Pearman, Judge.
    John Henry was convicted of murder, and he appeals.
    Reversed and remanded.
    Graham & Logsdon, of Marietta, Okl., and Culp, Culp & Culp, of Gainesville, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and the jury awarded him eight years in the penitentiary.

A bill of exceptions recites that the sheriff of the county was permitted to reproduce the testimony of appellant, given on a former trial to the effect, that he (appellant) shot deceased twice with a shotgun. This testimony was not subject to the exception that the state could not reproduce the testimony of defendant given on a former trial. The decisions hold the other way. This holding is without exception in the jurisprudence. At what stage of the trial this testimony was introduced is not shown by the bill of exceptions. As the bill presents the matter, there is nothing to justify a reversal.

A bill of exceptions was also reserved to evidence of the sheriff with reference to his not finding any weapon on the body of deceased at the time he reached the scene of the homicide. The hill does not show at what time the sheriff reached the body. As a general proposition this character of testimony is admissible, and especially so if apparent danger is the basis of self-defense. If there be intervening reasons why a witness would not be permitted to testify, as was done by the sheriff in this matter, they are not stated in the bill. Length of time and opportunities for others to take away weapons might possibly, under some circumstances, operate as a reason why such testimony should be rejected; but usually this would not be true. This would go more to the weight than to the admissibility of the testimony. But the bill as presented does not show any reason why the court committed error in this matter.

Appellant’s wife testified. A bill of exceptions sets out the questions and answers. In substance she was, over objection of appellant, required to testify as to trouble between herself and the wife of deceased at the residence of deceased. It seems that she had gone to the residence of deceased, and a conversation had occurred between her and her sister, who is the widow of deceased, with reference to some reports that had been circulated as to her chastity, and during the difficulty the widow of deceased knocked her down with a “churn stick.” The objection is that she was the wife of defendant and was testifying about matters not brought out. by defendant from his wife. That is stated as a ground of objection, and not as a matter of fact. If this matter was introduced by defendant through his wile, it was subject of cross-examination by the state. We are cited to the statement of facts by the Assistant Attorney General, showing that defendant asked with reference to this matter, ■ and the state’s questions were but cross-examination on the original matter brought out by defendant. If the defendant brought out the matter, the state was entitled to cross-examine the witness. The bill does not show this as a matter of fact, but the statement of facts does show this was brought out by defendant. The bill as presented does not show reversible error.

Another bill recites that, while defendant was on cross-examination as a witness, he was asked with reference to a report that he may have circulated and a statement made ,with reference to the chastity of the wife of deceased and her relation with a man named Foster. Appellant denied this. He stated he had never made such statement. Objection was urged on the ground that this was an extraneous matter and could only injuriously affect defendant. We are of opinion this testimony was admissible. It showed the relation between the parties, or tended to do so. If appellant made the statement, it would be a circumstance to be shown by the state of the relation existing between himself and the family of deceased, and one that would naturally bring about trouble between them. Appellant denied it, and from that viewpoint would hardly be injured; but, as he denied it, the state introduced evidence to the effect that he 'did make the statement. We think that it was admissible, 1 either as original or impeaching testimony, and it was permissible to show these statements, whether appellant denied them or did not deny them. It .bore upon bis feeling towards deceased and bis family, and tbe ill will be may bave bad toward them.

There were exceptions reserved to tbe admission of testimony showing tbe reputation for peace and quietude of deceased. The bills are not as definite, perhaps, as they should be; but in view of another trial we would state that as a general rule tbe reputatipn of tbe injured party is not introducible as original testimony. If there bad been previous threats made by deceased and communicated to appellant, and there was an issue of apparent danger in connection with the threats, then the reputation of deceased could be shown by the state. This seems to be well settled by quite a line of Texas cases. If such threats had not been previously made by deceased and communicated to appellant, then this character of testimony would not be admissible as original evidence.

Had defendant put in issue the reputation of deceased, then the state would be entitled to show good reputation. But where threats are part and parcel of the immediate difficulty, then, as we understand the rule, the reputation of deceased would not be an issue. It is only where threats had been previously made — that is, prior to the difficulty — and communicated • to the accused, and the issue was that-deceased was seeking to carry into execution these threats, that the state would be permitted to introduce the good reputation of deceased as an independent or original fact. We make the above observations in view of another trial.

There is a question raised as to the swearing of the jury at the time that body was impaneled to try the case. This same question came in two other cases from the same county, tried at the same term of court. Crisp v. State, 220 S. W. 1104, and Hewey v. State, 220 S. W. 1106. The writer of this opinion deems it unnecessary to go into a discussion of the illegality of the oath administered to the jury. It is fully discussed by Judge Lattimore in the case of Crisp v. State, and by Judge Morrow in the Hewey Case, this day decided. The conclusion in those cases the writer thinks is correct.

The judgment will be reversed, and the cause remanded. 
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