
    SQUYRES v. STATE.
    (No. 8841.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;l 120(8) —i Bill of exceptions, objecting to testimony of movements of deceased on day of homicide as unknown to defendant, held defective.
    Bill of exceptions, complaining that state witness was permitted to testify as to movements of deceased on day of homicide which were unknown to defendant, is defective, and will not be considered, where it does not affirmatively show that defendant did not know of such movements.
    2. Homicide <&wkey;>l63(1)—Objection to testimony as to bad character held to go to weight not admissibility of evidence.
    Where witness testified that he was acquainted with general reputation of defendant in community, and that it was bad, an objection to such testimony, in that witness admitted basing it on what he heard just prior to date of defendant’s marriage, which was seven years prior to homicide, went to weight and not admissibility of evidence.
    3. Criminal law <&wkey;>l 169(2)—Testimony of defendant’s wife, if error, held not prejudicial.
    In prosecution for homicide, testimony of defendant’s wife that she rode with him on morning of killing to her brother’s house, and went in, which was place of the homicide, if error, was not prejudicial, where other witnesses testified without objection to same effect, and wife was not testifying as to any material facts against husband, since place of killing was not denied.
    «gn^For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; Chas. B. Brachfield, Judge.
    
      Frank Squyres was convicted of manslaughter, and lie appeals.
    Affirmed.
    Davis & Davis, of Center, for appellant.
    Toon Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was charged by indictment in the district court of Shelby county with murdering one John Richards by shooting him with a pistol, and convicted in said court of the offense of manslaughter, and his punishment assessed at five years’ confinement in the penitentiary.

This is the second appeal of this case. The first appeal will be found in the case of Squyres v. State, 92 Tex. Cr. R. 160, 242 S. W. 1024.

The appellant complains of the action of the trial court in permitting the state’s witness Mrs. Alice Grubbs, sister of deceased, to testify that in the morning about 8 o’clock on the day of the homicide, when the deceased left home, “I know of my own knowledge that he was going to cut wood,” because said testimony was hearsay, and because same was unknown to the defendant. These hills do not affirmatively show that the defendant did not know of said movements and actions of the deceased at said time, and for that reason same are defective; and under the rule of this court of long standing, we are not required to consider same.

There is complaint raised in bill of exception No. 3, to the action of the court in refusing to strike out the testimony of certain witnesses for the state, who had testified on direct examination to the bad reputation of the defendant, and upon cross-examination stated they based their, testimony upon what they had heard just prior to the date of the marriage of the defendant, which the record shows to be about seven years previous to the homicide. These witnesses qualified and testified on direct examination that they were acquainted with the general reputation of the defendant in the community where he resided, and it was bad. We think this objection would go more to the weight of the testimony than to the admissibility of same. Bibb v. State, 86 Tex. Cr. R. 112, opinion 117, 215 S. W. 312.

Appellant complains of the action of the court in permitting the state, on cross-examination, to ask defendant’s wife and have her testify that she rode with the defendant on the morning of the killing to Edward Hammer’s house, the place of the homicide, because said question and answer was not germane to anything brought out by the defendant from said witness on direct examination. If this was error on the part of the court, we are unable to see where it was harmful to the defendant in this case, or resulted in any injury to him.

The testimony, as developed by the state’s witnesses Tom Hammer and Ed Hammer, brothers-in-law of defendant, and brother to the defendant’s wife, without objection was that the defendant and his wife went together in an automobile from the residence of Tom Hammer to the residence of Ed Hammer on the morning of the homicide, and both of said witnesses testified without objection that the defendant and his wife, when they reached' the residence of Ed Hammer, went into the house, the place where the homicide afterwards occurred. We are unable to see from any standpoint where this testimony in any manner could have possibly injured the defendant as disclosed by the record of this case.

In bill of exception No. 5, appellant complains of the action, of the private prosecuting attorney in asking the defendant’s wife upon cross-examination, relative to going with the defendant in a car to her brother’s, the following questions: “And you went in the house with him?” “Tou came in behind him?” “Did either one of you go in the house?” all of which questions, when asked, were objected to by defendant and sustained by the court. What we have said relative to the testimony of the witnesses Tom and Ed Hammer both applies to these questions, and their testimony clearly showed that the defendant’s wife did go with him and went in the house with him, and we see no reason for complaint of the defendant at the action of the coui-t in this particular, for the reason that the court’s ruling appears extremely lenient towards the defendant. Even if there was error in any of the particulars above mentioned, we would not be inclined to reverse this case in these particulars, as the errors appear harmless, if any committed.

After a very careful consideration of this entire record, we fail to observe any error in the trial of this case by the trial court, and are of the opinion that the defendant has had a fair and impartial trial, and accordingly affirm the judgment of the trial court.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

DATTIMORE, J.

We do not think the matters of complaint relating to the testimony of Mrs. Grubbs meritorious; nor are we willing to adopt the restrictive rule contended for by appellant regarding testimony affecting the reputation of appellant. The-authorities cited as supporting the contention that the state’s evidence related to a time too remote are decided on the facts of each particular case, and in none of them is the time referred to as near to the timé of the alleged crime as in the case before us. We think the correct rule is announced in Bibb v. State, cited in our original opinion, and that the bill presents no error.

Regarding the questions asked by the state of appellant’s wife while a witness, which are claimed to he violative of the rules, we are not in accord with this contention. The fact that the killing took place at Ed Hammer’s house was sworn to by a number of witnesses, who also testified that just before the homicide, appellant, with his wife and other parties, in a car drove up to said house. Just how it could be claimed to be erroneous for the state to ask Mrs. Squyres if she went in a car with her husband to the house of Ed Hammer, her brother, is not clear to us. The wife was.not forced to supply any material facts to the state’s case or to state anything in the least hurtful to her husband’s case. He was not denying that the killing took place at Ed Hammer’s house, but admitting it; nor was he asserting that his defense in any way depended on whether his wife drove up with him to the house in a car.

The motion for rehearing is overruled.  