
    FINCH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Appeal and Ebror (§ 971*) — Witnesses (§ 40) — Appeal — Discretion of Trial Court.
    In a ci'iminal prosecution, the determination of the competency of children to testify is a matter left largely to the discretion of the trial court, who can judge from the demeanor and manner of the witness on the stand, and his determination will not be disturbed on appeal unless an abuse is shown.
    [Ed. Note. — For other cases, see Appéal and Error, Cent. Dig. §§ 3852-3857; 'Dec. Dig. § 971;* Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    2. Witnesses (§ 282) — Examination—Heading Questions.
    The allowance of leading questions is not improper in cross-examination of a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.]
    On Motion for Rehearing.
    3. Witnesses (§ 40) — Competency.
    Under Code Or. Proc. 1911, art. 788, providing that children who do not appear to have sufficient intelligence to relate the transaction or do not understand the obligation of an oath are not competent witnesses, a child of six years of age may testify if he understands the obligation of an oath and can relate the transaction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    4. Homicide (§§ 110, 300) — Defense—Self-Defense.
    Where deceased after some conversation caught accused by the throat and when accused freed himself deceased arose with his hand at his side saying he would kill him, the right of self-defense wa.s perfect, and hence no limitations of the' right need be considered in the charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 140-142, 614, 616-620, 622-630; Doc. Dig. §§ 110, 300.]
    5. Homicide (§ 300*) — Trial—Instructions.
    In a prosecution for homicide, where the charge on self-defense was not limited, a charge on the right of accused to take arms with him to the place of the affray is unnecessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    6. Homicide (§ 300) — Triái>-Instructions. ■
    In a prosecution for homicide, where the evidence was that accused and deceased agreed to meet unarmed, a, charge that accused had the right to bear arms should not be given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    7. Homicide (§ 309) — 'Telal—Instructions.
    In a prosecution for homicide, where the provocation was the pain caused by deceased’s assault, a charge on manslaughter limiting the cause to that of an assault causing pain is not too restrictive.
    [Ed. Note. — For other cases, see Homicide, .Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    Appeal from Criminal District Court, Har-rié County; C. W. Robinson, Judge.
    E. R. Finch was convicted of murder in the second degree, and he appeals.
    Affirmed.
    W. G. Love, E. T. Branch, and Brockman, Kahn & Williams, all of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Kep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder in the second degree and his punishment assessed at 20 years’ confinement in the penitentiary.

The first bill of exception complains of the action of the court in refusing to permit the six year old son of appellant to testify in the case. It is shown by the bill the testimony of this witness would have been material in reducing the offense from murder in the second degree to manslaughter, if he would have testified as is alleged in the bill. In the case of Anderson v. State, 53 Tex. Cr. R. 346, 110 S. W. 57, it is said: “It has been uniformly held by this court and is, as we understand, the rule which obtains- everywhere that the matter of passing on the competency and understanding of the witness is left largely to the sound discretion of the trial court. The demeanor and manner of the witness on the stand is often as pertinent a factor in determining the mental capacity and competency of a witness as anything else.” Taking this rule into consideration, we cannot say that the court abused his discretion in rejecting the testimony of this six year old child.

In the only other bill of exception in the record it is claimed that the court erred in permitting the state to ask Mrs. Della Finch certain questions which are alleged to be leading. The record shows that appellant introduced Mrs. Finch as a witness, that she was formerly his wife, and had her testify to certain facts in the case; and we think the questions were perfectly legitimate in cross-examination of said witness, especially so under the qualification of the court appended to this bill, which is accepted by appellant without objection and filed as a part of the record in this case. These are all the bills of exception in the record; no special charges were requested; but the remainder of the motion complains of the charge as given. Without taking up each ground in the motion, we will state we have read the charge as given and the grounds of objection, and we are of the opinion that the charge fairly submitted each issue raised by the evidence. By selecting one paragraph alone and criticis-ing it, the objections might appear tenable, but, when read as a whole, no grounds for such objections exist. The charge fairly submits manslaughter and self-defense under the evidence adduced, and we must consider the evidence in each case in passing on the charge, and, under the evidence adduced in this trial, the objections made present no error that should call for a reversal of this case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he assigns four grounds as reasons why he thinks this court was in error in not reversing and remanding this cause.

The first is that error was committed in not permitting the six year old son of appellant to testify. The rule has always been in this court that this is a matter within the sound discretion of the trial court, and, unless the record disclosed that he abused his discretion and acted arbitrarily, we would not review the matter. The trial judge sees the child, hears him testify on his examination, and while we always loathe to exclude any legitimate testimony, and if this child was a competent witness his testimony would be admissible, yet our Code of Criminal Procedure provides in article 788 that children who do not appear to have sufficient intelligence to relate the transaction, or who do not understand the obligation of an oath, are not competent witnesses; and in Williams v. State, 12 Tex. App. 127, it held that the method of testing the qualifications is confided to the trial judge, and whether or not a child is competent is committed to his sound discretion. While we thoroughly agree with the rule of law as announced in the cases cited by appellant in his brief, yet again, after carefully reading the answers of this child to the questions propounded to him, we are not prepared to hold that the court acted arbitrarily in the premises or abused his discretion in holding the child an incompetent witness under our statute. In the case of Zunago v. State, 63 Tex. Cr. R. 66, 138 S. W. 713, the rule is correctly stated and authorities cited. If appellant was not satisfied with the ruling of the court, he should have asked that the jury be retired and had said child examined as to his ability to relate the transaction, and that he in fact understood the obligations of an oath by the answers given, and then we would be more capable of passing on the question. The-bill does not purport to give the testimony of the child as to the transaction, but a mere statement that he would have testified that deceased “choked his papa first before his papa shot.”

We agree with those decisions cited by appellant wherein it is held that “the trial court should not ignore the phases of manslaughter which may arise on account of imperfect self-defense.” Brown v. State, 54 Tex. Cr. R. 126, 112 S. W. 80. But they have no application to this case.

It was perfect self-defense if the jury accepted the testimony of defendant. He testified that after some conversation deceased jumped at him and caught him by the throat; that he knocked him loose, when deceased arose with his right hand out of sight and said, “Xou son of a bitch, I will kill you;” that he then reached and got his pistol and shot. This presented perfect self-defense, and the court so instructed the jury, telling them: “A reasonable apprehension of death or great .bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said Bert Boatner, but further believe that at the time of so doing the deceased had made or was making an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant killed the deceased, then you should acquit him.”

The court in his charge, in applying the law to the case, placed no limitation on appellant’s right of self-defense, and those cases which hold that, where the court places a limitation on self-defense, he must then instruct as to what offense he would be guilty under such circumstances have no application. If the court had, in his charge, limited this right under any condition or circumstance, the cases cited by appellant would apply. ,

Appellant asked no special charge in regard to his right to taking arms with him to the place, and under such circumstances it has been held not to be error to fail to so instruct the jury, where the court gives a charge on perfect self-defense unfettered and unlimited.

But in this case, had such request been made, it should not have been given, for the testimony of Mrs. Finch would show “an agreement to meet in their shirt sleeves unarmed.” Deceased did go to the meeting, unarmed, in his shirt sleeves, while appellant carried a pistol, and yet there had been no prior trouble between them.

The charge on manslaughter is not too restrictive. It instructed the jury that “an assault causing pain” would be adequate cause, and this is the adequate cause raised by the testimony.

The motion for rehearing, is overruled.  