
    CANNON v. STATE.
    (No. 5229.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law <©=>682, 703 — Trial—Rig nr to Require State to Make a Statement of Its Case.
    An accused may demand of the state to make a statement of its case before the introduction of testimony, and require it to develop its case upon the original showing, so that defendant on his defensive propositions would have the state’s full case to meet.
    2. Homicide <§=3300(7), 301 — Self-Defense— Instructions.
    Where in beginning of difficulty accused’s father alone was in danger when defendant shot at prosecuting witness, and where later father was not present when defendant again shot at the prosecuting witness, it was reversible error not to limit charge as to self-defense to the second difficulty.
    3. Assault and Battery <©=354 — Homicide <§=346 — Statutory Manslaughter — Aggravated Assault.
    Where person shoots at one who tells his father in his presence that his mother and his father’s wife was sustaining illicit relations with another person, he would only be guilty of manslaughter if he killed him, and in the absence of a killing only of an aggravated assault.
    4. Criminal Law <§=>723(4) — Argument of State’s Attorney.
    In prosecution for assault to murder, it was improper for prosecuting attorney in his argument to state that “you ought to convict this defendant; * * * the time has come * * * when the citizens will rise up and say, ‘we won’t have our citizens butchered.’ ”
    5. Criminal Law <§=>723(4) — Argument of Prosecuting Attorney.
    In a prosecution for assault to murder, argument of prosecuting attorney, “Gentlemen of the jury, if you suspend this man’s sentence, and let him go out, he may kill you or me,” was improper.
    6. Criminal Law <§=>719(1) 722½ — Argument of Prosecuting Attorney.
    Inflammatory argument of prosecuting attorney,. in a prosecution for assault to murder, not based upon evidence, held error.
    7. Criminal Law <§=>730(7) — Argument of Counsel — Duty of Court.
    The court should promptly suppress illegitimate argument, based upon facts not introduced in evidence.
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    J. P. Cannon was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    F. J. & C. T. Duff, of Beaumont, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for assault to murder; the punishment being assessed at five years’ confinement in the penitentiary.

There are several questions suggested for revision. The state introduced an eyewitness whose name was Herring. He testified to the facts and circumstances of the difficulty. His testimony would show a sudden trouble, and a shooting in consequence of it, that might suggest an assault to murder, or not more than an aggravated assault. The evidence tends to show that a conversation occurred between the father, of defendant and the alleged assaulted party, McLaughlin, about some papers, money, etc., that McLaughlin claimed that the elder Cannon surreptitiously took from the estate of J. W. Davis, deceased. At this juncture he says appellant, who was in an adjoining room, stepped into the door and fired, a couple of shots at McLaughlin, breaking his arm. These shots were fired with a shotgun. He further states that McLaughlin left the house and fled into the street; that appellant secured a pistol' from somewhere •about his bed and undertook to follow McLaughlin ; that he (Herring) tried to prevent it, but finally appellant succeeded in freeing himself and followed McLaughlin, and fired several times at him with the pistol. The state rested its case, whereupon appellant moved the court to require the state to place the witness McLaughlin on the stand. The bill of exceptions shows that the demand was made to the effect that the state complete its case upon is original showing, and not develop part of it at the beginning, and then, under the theory of rebuttal testimony, develop a case, under the state’s contention, that would show premeditation in getting McLaughlin to the place where he was shot for the purpose of killing him. Without going into a detailed discussion of this matter, we are of opinion defendant may demand of the state to make a statement of its case before the introduction of testimony, and require it to develop its case upon the original showing, so that the defendant on his defensive propositions would have the state’s full case to meet. This much is said in view of another trial. The statute gives defendant the right to have the state malee a statement of its case, and a refusal to make such statement, if probable injury is shown, or probably resulted, would constitute ground for reversal.

The court charged the jury, on the law of self-defense, that if appellant shot to defend himself, or in defense of another, he would be entitled to an acquittal. This is the substance of the charge. There is no evidence in this record that appellant shot to defend himself against McLaughlin, in the first assault. McLaughlin was not making any demonstration toward him, and the self-defense theory was in the ease alone on the evidence to the effect that appellant shot because he believed McLaughlin was making, or about to make, an attack upon his father, ■with something that he held in his hand ¿t the time he believed to be a club. There is no place for a charge on self-defense of appellant, so far as that part of the difficulty is concerned in favor of himself. The self-defense proposition arises alone on this theory of the case from the fact that appellant believed that McLaughlin was attacking his father, and it was necessary for him to shoot. There is no evidence that suggested this theory. The error is considered to be reversible.

As heretofore stated, when appellant fired the shots in the house at McLaughlin, McLaughlin fled. Appellant followed him with a pistol. The issue of self-defense, if raised at all, had no connection with the father after McLaughlin left the house. The issue | of self-defense on the part of appellant and in his favor arose after they left the house. Appellant testified that McLaughlin turned toward him a time or two after they left the house as if to fight him. Whether the issue of self-defense arose or not after leaving tne house, the charge should have confined it to appellant after leaving the house, and not to the original difficulty in the house. His father was not present, and not having anything to do with the difficulty after that which occurred in the house. So the case presents itself from two standpoints of self-defense: In the house in favor of appellant, who was trying to protect his father; and after so leaving only in favor of defendant. After McLaughlin left the house there is no testimony indicating that his father was Involved in the matter as to the subsequent shooting. So we have two issues sharply drawn: One of self-defense of his father in the house, and self-defense of himself outside of the house.

Appellant further contends that he could not be guilty of an offense higher than aggravated assault. The evidence for the defendant showed that McLaughlin said to appellant’s father that appellant’s mother, and the wife of his father, had been sustaining the relation of wife both to appellant’s father and to the deceased, Davis.' This was said previously to the shooting in the house. This constituted statutory cause for manslaughter if a killing occurred, and in the absence of a killing an aggravated assault. After appellant left the house, there were two questions presented, so far as this phase of the case was concerned: First, self-defense as against McLaughlin; and aggravated assault, on account of the language immediately before leaving the house. The question of cooling time did not arise. The issue of self-defense, therefore, arose in appellant’s favor only for shooting McLaughlin in the house as against an attack on his father. This did not arise on the outside of the house, because his father was in no danger and had ceased to be a party to the transaction. The self-defense on the outside of the house arose only in connection with appellant, and the aggravated assault arose on account of the language used by McLaughlin in relation to appellant’s mother, as well as from the other facts.

Exception was taken to the language of one of the prosecuting attorneys. These are shown by bills of exception. The first bill reserved to the language of the prosecuting attorney is as follows:

“You ought to convict this defendant and send him to the penitentiary for 15 years. I say, the time has come in Hardin county when the citizens will rise up and say, ‘We won’t have our citizens butchered in any such manner.’ ”

Appellant objected, and requested the court to instruct the jury to disregard this language, which the court refused. The next bill recites that the same attorney used this language:

‘‘Gentlemen of the jury, if you suspend this man’s sentence and let him go loose, he may kill me or you; my life or your life will be in danger.”

Upon request of appellant the court refused to instruct the jury to disregard this language. The third hill recites' that the same counsel stated that—

“Everybody was telling McLaughlin that Pete Cannon had caused the death of John W. Davis, and that there was such a suspicion that they, Pete Cannon, his wife, and the defendant, J. P. Cannon, were connected with the death of John W. Davis, that shortly afterwards they left the state of Texas, and went to New Mexico to live.”

Appellant objected, because there was no evidence of any such facts, and the same was inflammatory and calculated to inflame the minds of the jury, and moved the court to instruct the jury not to regard this language, and this the court refused. This language should not have been used, and especially that stated in the third bill of exceptions. There was no evidence to sustain such argument. Upon another trial such remarks will not be indulged, and the court should promptly suppress illegitimate argument, based upon facts not introduced in evidence, and to which the attorney, if he saw proper to testify, should have taken the witness stand. There was no evidence to justify such comments.

For the reasons indicated, the judgment is reversed, and the cause remanded. 
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