
    RIORDAN v. STATE.
    (No. 7837.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;l 144(2) — Overruling of plea to jurisdiction averring improper return of indictment implies averments were false.
    Where record shows no evidence in support of averments, in plea to jurisdiction after change of venue, that grand jury returning indictment had adjourned and had not reassembled, order of trial court overruling it implies that averments were not true.
    2. Criminal law &wkey;>142 — Improper indictment by grand jury must be raised before change of venue to another county.
    Where judge, under Yernon’s Ann. Code Or. Proc. 1916, art. 626, had transferred case to another county, fact that grand jury, returning indictment, had adjourned and had not reassembled, should have been raised- in county where indictment was originally filed, and bill of exceptions there reserved to adverse ruling, under article 630.
    3. Criminal law <&wkey;l 169(2) — Improper examination by state’s counsel of own witness, establishing fact shown by accused’s testimony, if error, held harmless.
    That, in prosecution for murder, counsel for state asked own witness improper questions tending to establish same fact shown by accused’s testimony, if error, was not of enough consequence to warrant reversal.
    4. Criminal law <&wkey;l 144(12) — In absence of showing by surrounding circumstances in bill of exceptions that question answered by witness was improper, ruling of trial court will be assumed to be correct.
    In prosecution for murder, where witness was allowed to answer in negative as to whether deceased was in habit of carrying pistol, in absence of surrounding circumstances or setting in bill of exceptions, Court of Criminal Appeals will assume that ruling of trial court was proper, as burden was on accused to show it was not.
    5. Criminal law <&wkey;396(I)— Evidence as to continuance of civil case between deceased and accused, about which accused had testified, admissible.
    In prosecution for murder, evidence by attorney for deceased, in civil suit that was pending with accused, as to facts of continuance of case immediately before murder, 1leld admissible, where accused had also testified about continuance.
    6. Criminal law <&wkey;673(3)— Failure to charge as to proper use of evidence not error, where testimony was inconsequential.
    Failure to charge that answer of sheriff to question as to whether he had not testified - at habeas corpus trial that accused appeared apparently rather calm could only be used for purpose of impeachment, he having testified differently at trial, held, not error, since testimony was of inconsequential nature.
    7. Criminal law <&wkey;>l038(3) — Charge as given held proper, where record shows no special charge requested embracing further matters.
    In prosecution for murder, charge as given held, proper, where record shows no special charge requested by accused embracing more detailed catalogue of items of evidence which it is contended might appropriately have been called to attention of jury.
    8. Criminal law &wkey;>l 056(1) — Error cannot be predicated on failure of court to charge-, where accused failed to take exceptions.
    In prosecution for murder, if charge of court, under Yernon’s Ann. Pen. Code 1916, art. 1105, subd. 1, was incomplete in opinion of accused, it was his right to have fault corrected at time of trial, under Vernon’s Ann. Code Or. Proc. 1916, arts. 735, 737, .737a, and 743, and error cannot be predicated on charge as given ott failure to take exceptions at time of trial.
    tgzs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      On Motion for' Rehearing.
    9. Criminal law &wkey;l 169(2) — Testimony relating to stopping payment on check, given by deceased to accused held not prejudicial, where facts already were in evidence.
    In prosecution for . murder, testimony of cashier of bank of deceased that check given accused on business deal would have been paid if deceased had not stopped payment, held not prejudicial to accused, where it was already in evidence that payment on check had been stopped.
    tg=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    L. C. Riordan was convicted of murder, and appeals.
    Affirmed.
    J. E. Cunningham, of Abilene, and W. A. Anderson and Upton & Upton, all of San Angelo, for appellant.
    W. A. Wright, of San Angelo, and Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

Appellant and the deceased, Moon, had a business transaction in which Moon purchased from the appellant a number of cattle and executed two checks in payment therefor. Moon had the cattle shipped to Fort Vorth with the intent to sell them there. Finding the market unsatisfactory, he decided to ship them to Missouri. The checks not having been paid, appellant objected to Moon’s action, and a quarrel and ill feeling resulted. Appellant took posses>sion of the cattle. Failing to realize from them the amount that Mo-on had contracted to pay, a civil suit ensued in which the appellant was plaintiff and Moon and another were defendants. On the day of the homicide the ease was continued upon the application of Moon and his codefendant. Moon .and appellant were leaving the courtroom about the same time and the tragedy occurred at and near the courthouse. A number of shots were fired by the appellant, one of which took effect in the back of Moon, who at the time seems to have been fleeing. Moon was unarmed.

According to his testimony, appellant was disappointed when the case was continued, left the courtroom,- went to the lower floor of the courthouse, and, while standing there, Moon walked up behind him and used hostile words and gestures, putting appellant 'in fear of death, whereupon in his own protection he fired and continued to do so while, from his standpoint, the danger was apparent.

It appears from the transcript, duly certified by the district clerk of Sterling. county, that the grand jury of that county returned the indictment against the appellant; that the venue was changed to Tom Green county by order of the district judge upon his own motion in accord with article 626, G. O. P. The averment in the plea to the jurisdiction filed in Tom Green county to the effect that the grand jury returning the indictment had adjourned and had not been reassembled is not, so far as the record reveals, supported by any evidence, and the order of the trial court overruling it implies that the averment is not true. Moreover, this is a matter which the statute requires to be' determined in the oounty in which the indictment is originally filed and that a bill of exceptions be there reserved to any adverse ruling. In the present case, this is not shown to have been done. See article 630, O. O. P. (Vernon’s Tex. Grim. Stat. vol. 2, p. 339).

It was the theory of the state that the appellant and deceased were both in the courtroom at the time the civil case was continued and that as" soon as Moon left the courtroom he was followed by the appellant. Upon this subject the witness Ray, for the state, in describing the locality of the seats in the courtroom occupied by appellant and deceased, said that he did not know that the appellant was looking at any certain person; that .he might have been looking at Moon, but the witness was not positive; that Moon went out and that appellant aft-erwards went out, but whether out the same door through Which the deceased went, or another, the witness could not say. The shots were fired very soon after the,parties mentioned left the courtroom. The witness had been a juror in another case .and had seen the appellant and deceased about the courtroom awaiting the calling of the case in which they were interested. The witness noticed that the appellant usually took the same seat each morning and read a newspaper, though he was not positive whether or not appellant was reading the newspaper on the morning of the homicide. State’s counsel, on redirect examination, propounded to the witness this question:

“Did you know that you told me he was not looking at his paper but was looking at Moon at the time? ”

To which the witness replied:

“That he could have been; he came in there every morning reading his paper.”

Counsel then said:

“And you know that you told me that, don’t you? ”

To which'the witness replied: “Yes, sir.”

Objection was made that the state was endeavoring to impeach its own witness. The bill fails to show a conversation between the witness and counsel out of court. The inquiry was not improper if it related to testimony given by the witness while he was under direct examination by state’s counsel. In the absence of an authenticated statement showing the contrary, the presumption obtains that the ruling of the court was not improper. However, considering the testimony of the witness and the other parts of the record, if there was error, it was not of such consequence as would require a reversal. Prom the appellant’s own testimony, it appears that he and Moon were both in the courtroom at the time the case was continued and that the encounter occurred very soon thereafter.

Graham, a witness for the appellant, testified that Moon and appellant were sitting near each other in the courtroom and that, when the case was continued, Moon got up and walked out. Prom the testimony of the witness we quote:

“I don’t know what Mr. Riordan did when he got up; he was sitting by me with a newspaper he had been reading, and about the time Mr.' Moon got opposite us, or a little past, Mr. Riordan looked up and saw him, and got Up and laid his paper down and walked out. * * * When Mr. Moon got further down the south aisle about opposite us, Mr. Riordan turned his head and saw him and got up immediately. It is hard to tell how long after that it was until I heard the first shot; it was possibly in the neighborhood of one to three minutes.”

It appears in bill No. 12 that, while the witness Brabham was testifying upon behalf of the state, he was asked to state whether or not he knew that the deceased was in the habit of carrying a pistol, to which he gave a negative answer. In the absence of the surrounding circumstances or setting in which the matter complained of occurred (which are not given in the bill), this court is not in a position to determine that the evidence was error. It may have been proper. That it was proper, the ruling of the court implies. The burden was upon the appellant to show by the bill that it was not. See Moore v. State, 7 Tex. App. 14; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Edgar v. State, 59 Tex. Cr. R. 252, 127 S. W. 1053; Branch’s Ann. Tex. P. C. p. 132.

The witness Hill, one of the attorneys for the deceased in the civil suit to which the witness Brabham was also a party defendant, testified that in making the oral application for a continuance he had stated the substance of the testimony of the absent witness Farmer to the effect that they expected to prove by Farmer that the appellant had compelled Mr. Moon to turn over the cattle at Fort Worth and that the ’appellant had breached the contract. It appears from the court’s qualification that appellant had introduced the subject of the continuance and he had also testified about the continuance upon the theory that it bore upon his state of mind and was relevant in support of his theory that the offense was no more than manslaughter. Under these circumstances it seems that the testimony of Hill, made in the presence of the appellant, touching the reasons upon which the continuance was based, and the statement there miade upon which the court acted, was not inadmissible.

The witness Roberts, sheriff of Sterling county, while testifying upon behalf of the state, said that at the time of the homicide and shortly thereafter the appellant did not seem “overly excited.” State’s counsel then asked the witness if he had not testified at the habeas corpus trial that the witness, appeared “apparently rather calm,” to which the witness replied that, if it was written, he presumed that was his answer. It appears from the bill that the proceeding was sanctioned upon the theory that state’s counsel was surprised by the answer given by the witness. See Underhill’s Crim. Evidence, § 377.

Appellant contends that the proceeding just mentioned rendered it imperative that the court instruct the jury that the remark of the witness Roberts could be considered alone upon the question of his credibility. In this connection, we quote from the case of Maines v. State, 23 .Tex. App. 576, 5 S. W. 125, as follows:

“The general rule is that whenever extraneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might tend, if not explained, to exercise a strong, undue, or improper influence upon the. jury as to the main issue, injurious and prejudicial to the right of the party, then it becomes the imperative duty of the. court in its charge to so limit and restrict it as that such unwarranted results cannot ensue; and the failure to do so will be radical and reversible error.”

If the testimony can be used for no purpose other than that of impeachment, the-failure of the court to limit it to that purpose in' his charge is not error. Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197. On both of these propositions numerous precedents are found in Branch’s Ann. Tex. P. C. §§ 188, 189.

We think it may be safely added that, if the purported impeaching testimony is of a nature so inconsequential that no harmful use can be made of it, the failure to limit it ought not to work a reversal. Franklin v. State, 38 Tex. Cr. R. 346, 43 S. W. 85. In effect, this is embraced in the above quo^ tation from Maines v. State, supra.

In the present case, the witness Roberts testified to no important matter. His former testimony that the appellant was apparently rather calm, considered in the light of his present testimony that the appellant did not seem overly excited, is not deemed, when considered in connection with the other phases of the ease bearing upon the issue of manslaughter, of such consequence as justifies a reversal of the judgment.

In the charge on manslaughter, the following appears:

“Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in evidence in the case, both before and at the time of the killing, * * * and so in this case you will consider all the facts and. circumstances in evidence, both before and at the time of the killing, in determining the condition of the defendant’s mind at the time of the alleged killing, and the adequacy of the cause, if any, producing such condition.”

There is found in the record no special charge embracing a more detailed catalogue of the items of evidence which in the opinion of the counsel for the appellant might appropriately have been called to the attention of the jury. In the absence of such a request, the propriety of the court in refraining from undertaking such an enumeration seems obvious, for the reason that it might have been subject to the complaint of trenching upon the rule against commenting upon the weight of the evidence or misleading because of inadvertent omissions.

These matters were before the jury and were proper subject of argument by counsel, but not such as required special mention in the charge of the court. The cases of Williams v. State, 15 Tex. App. 617, and Lee v. State, 54 Tex. Cr. R. 382, 113 S. W. 303, to which appellant refers, are cases in which there was an assault by the injured party which raised the issue of adequate cause.

In those cases, as a matter of law, there were other facts which gave color to the assault, and which might have operated on the mind of the accused, and the charge was so worded as to exclude the consideration by the jury of these other matters. The charge in the present ease contains no such vice.

Appellant, in his testimony in describing the immediate facts attending the beginning of-the difficulty, testified to words used by the deceased as well as to his acts. According to the appellant, the deceased said:

“I guess you see we have made a damned monkey out of you twice, and the next time we will do it over.”

Appellant replied:

“God damn you; if you didn’t have your hand on your gun, you would not talk to me in such way.”

Whereupon the deceased said:

“I will talk to you as I please, and if you don’t like it, get ready now.”

In instructing the jury, the court, in subdivision (a) used this language:

“That if you believe that at the time of the killing, if any, the deceased reasonably induced the defendant to believe that deceased was about to attack the defendant, or, if by the acts of the deceased, it reasonably appeared to the defendant at the time, viewed from his standpoint, that the deceased was then about to attack the defendant, if such an attack, if any, whether real or apparent, was reasonably cal-, culated to create in the mind of the defendant, and did create in his mind, a reasonable expectation or fear of death or some serious bodily injury to himself, etc.”

The court also charged, in subdivision (b), on the law of threats, and in subdivision (o) gave this instruction:

“You are further instructed that it is not essential to the right of self-defense that real danger should exist, if from the defendant’s standpoint, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to the defendant that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger was real, and was not bound to retreat in order to avoid the necessity of killing the deceased.”

Appellant complains of this charge, and in his brief and argument insists that there are omissions in the charge which constitute prejudicial error against him and refers to subdivision 1 of article 1105 of the Penal Code, in which it is declared that:

“It must reasonably appear by the acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named.”

It has been held that where the facts show that the words of the deceased, as well as his acts, may have produced in the mind of the accused a fear of death or seripus bodily harm, the court, in instructing the jury, should refer to both the acts and the words. The authorities on the subject are reviewed in Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161, under the facts of which ease it was held reversible error to so frame a charge as to limit the jury’s consideration to the acts of the deceased.

It is to be observed that the court gave an instruction to the jury upon the law as contained in article 1105 of the Penal Code. If his choice of words rendered the instruction incomplete in the opinion of the appellant, it was his right to have the trial court correct the fault at the time of the trial. The statute (article 735, Vernon’s Ann. Code Cr. Proc. 1916) establishes the right and 'points out the procedure by which it may be' secured, namely, by exception presented to the trial court before the charge is read to the jury “distinctly specifying each ground of objection.” ,See articles 737, 737a, and 743, Vernon's Ann. Code Cr. Proc. 1916; also Walker v. State, 89 Tex. Cr. R. 76, 229 S. W. 527; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Boaz v. State, 89 Tex. Cr. R. 523, 231 S. W. 790; Parker v. State, No. 7255, 98 Tex. Cr. R. 209, 261 S. W. 782.

In tlie present case, we have failed to find that either by specific exception or by a special charge the defect was called to the court’s attention so that the correction might be- made before the charge was read to the jury.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant reasserts that errors were committed upon the trial as complained of in the various bills of exception, and also renews his attack upon the charge in several particulars. All these questions (save bill No. 15) were fully considered and discussed in our original opinion, and we believe were properly disposed of.

In bill No. 15 complaint is made because the cashier of the bank .was permitted to testify that, when they received deceased’s check for $5,000 payable to appellant, they intended to pay it, but that deceased telephoned the bank from Fort Worth telling them not to pay it until they heard further from him. The bill recites that it was already in evidence that deceased had stopped payment on thé check. The witness’ statement that it would have been paid but for deceased’s instruction to the contrary could in no way have been injurious to appellant.

The motion for rehearing is overruled.  