
    SHRUM v. STATE.
    (No. 5712.)
    (Court of Criminal Appeals of Texas.
    April 21, 1920.
    On Motion for Rehearing, June 16, 1920.)
    1. Homicide &wkey;>340(3) — Failure to mention defendant’s right to shoot, from viewpoint of manslaughter, if he suffered pain from being shot, not erroneous.
    In a homicide case, where defendant’s testimony tended to show that he shot in self-defense, and manslaughter was brought in issue by testimony indicating that defendant was the aggressor, defendant cannot complain, where the court correctly charged on his right of self-defense, that it did not specifically mention that he had the right to shoot, from the viewpoint of manslaughter, if he suffered pain, etc., on being shot, for such an instruction would have been an undue limitation on the right of self-defense.
    2. Criminal law <&wkey;823(6) — Where court gave instruction as to right to picket, etc., failure of main charge to treat the subject not error.
    In a prosecution for homicide, where defendant, a striker, killed a guard, defendant cannot complain that the main charge failed to treat of his right to picket, etc., where his request dealing with the subject was given.
    3. Homicide &wkey;>300(7) — Evidence sufficient to present issue of provoking difficulty.
    In a prosecution for homicide, evidence tending to show that defendant provoked difficulty held sufficient to authorize the court to limit the right of self-defense by charging on the provoking of the difficulty.
    On Motion for Rehearing.
    4. Criminal law &wkey;?l 124(4) — Where affidavit as to newly discovered evidence did not appear in the record, the matter will not be reviewed.
    Where an affidavit containing alleged newly discovered evidence claimed to be attached to the motion for new trial did not appear in the record, denial of defendant’s motion on the ground of newly discovered evidence will not be reviewed on appeal.
    5. Criminal law <&wkey;424(5)— Acts of defendant’s companions after murder held admissible.
    Where defendant accompanied by two other strikers went to a point where persons in the master’s employment were at work, and as result of a difficulty killed a guard, testimony by a police officer that when he arrived at the scene he arrested one of defendant’s companions, who had the big end of a billiard cue in his hand, was admissible as part of the res gestae, despite defendant’s contention that he and his companions went to scene of homicide for purpose of peacefully picketing, and that they were assaulted; the state being entitled to introduce contradicting evidence that defendant’s companions attacked person working with bludgeons.
    6.Criminal law <&wkey;424(5) — Evidence that, when police arrived, defendant’s companion was armed with club, admissible.
    Where defendant, who with other strikers had gone on an alleged picketing expedition, etc., 'shot deceased, a guard, the fact defendant’s compaaion had dropped the billiard cue, and picked it up just as police arrived, did not render inadmissible testimony that the companion had the cue in his hand; it being the state’s version that defendant and companions went to the scene of the difficulty and began attacking persons at work.
    7. Criminal law <&wkey;423(3) — Testimony that defendant’s companion began attacking persons at work held admissible.
    Where defendant, a striker, killed a guard, testimony that defendant’s companion, who accompanied him to the scene of the difficulty, on arriving there attacked persons at work with bludgeons, was admissible.
    8. Criminal law &wkey;M09l (8) — Bill of exceptions must show that there was not testimony justifying remarks of counsel.
    Bills of exceptions, complaining that remarks by counsel were unsupported by the evidence, must show that there was no evidence which justified the remarks, and are insufficient, where the statements of counsel were not verified, otherwise than by statement of court that he instructed jury not to consider the remarks; the mere objection that the testimony did not justify the remarks not being sufficient.
    9. Criminal law <&wkey;4l3(2) — Where defendant fled from scene testimony that he offered to allow a friend to surrender him inadmissible.
    Where, after the shooting, defendant left the scene of difficulty, going to his parents’ home, some miles distant, and defendant explained his flight by testimony that his mother was ill, testimony that he told the friend who was carrying him away that he would allow the friend to surrender him and collect the reward was properly rejected as a self-serving declaration.
    Appeal from Criminal ¡District Court, Dallas County; C. A. Pippen, Judge.
    A1 Shrum was convicted of manslaughter, and he appeals.
    Affirmed.
    Mike T. Lively, Puckitt, Mounts & New-berry, Oscar H. Calvert, and Baskett & De Lee, all of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atfy. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for manslaughter; the term of punishment being assessed at three years in the penitentiary.

The court charged upon murder, manslaughter, self-defense, and provoking a difficulty. The charge on self-defense was from the standpoint of apparent and real danger as presented to defendant’s mind at the time of the occurrence. This included, not only the danger from an attack by deceased, but also another party who was with him. The jury was informed that, if defendant’s life was in danger from either standpoint, he would be entitled to his protection under the law of self-defense. The charge to the jury .was not limited to the act of deceased, but included those who were acting with him, if such facts were shown. The theory of the defense was that he was shot at and shot by two men, deceased being one and aided by another party, both firing shotguns; that they were in a truck owned by the electric company, for -whom the deceased and others were working; that these parties had been employed by the company, and in such employment were working in the business of the company; and that their employment arose out of the fact and on account of a strike by those who had been theretofore employed by the company. There was a strike by other employés, and what defendant terms a sympathetic strike by others engaged in same character of work, but not embraced among the strikers, and that those who were favoring the strike, and aiding and engaged in it, did what they called “peaceful picketing” ; that is, they would go to the employés of the company, who had taken the places of the strikers as employés, and talk with them and persuade them if they could — at least, sought to persuade them — to quit working for the compány and join in the strike. There had been some trouble arising between the employés of the company who were substituted for strikers and the strikers. The company also employed parties who are denominated guards, and they were armed.

On the morning of this trouble appellant and two others went to the scene of the difficulty for the purpose of engaging in this peaceful picketing. Defendant carried a shotgun, and it seems from the record the other two carried bludgeons. Upon arriving at the scene of the trouble, and where the employés were at work, two of the parties left the car, 'in which they accompanied appellant, ancl engaged in trouble or difficulty with one or more of the employés, striking with a club. This seems to have precipitated the difficulty, and the shooting began; several shots being fired. Appellant was standing at his car at the time of the difficulty, and his contention is, supported by his evidence, that while standing there he was shot at by deceased and another man, who was in a truck owned by the company, that they struck him in two or three places, and that he returned the fire, killing the deceased, and that there were a number of shots fired. The theory of the state was that appellant, as soon as he reached the point where his car was stopped, just across the street from the truck and the employés of the company, lumped from his auto and shot deceased, and the shooting became general, and that ■ the two other men who went down the street engaged in a difficulty with another employé of the company; that these three men went from a point in the city to where these parties were at work, and immediately upon arriving there this series of difficulties occurred — the state’s theory 'being that they went for that purpose, and that they were all participants or conspirators in what was done. Appellant testified he carried his gun to protect himself in case of trouble, as there had been trouble between the guards employed by the company and some of the “peaceful picketing” strikers, and that he carried this gun to defend in ease an attack was made upon him by those people.

An exception whs reserved to the court’s charge on manslaughter, because it did not specifically mention that appellant had the right to shoot, from the viewpoint of manslaughter, if the shots of the others produced pain or bloodshed. We are of opinion this contention is without merit. If, as appellant contended, he was fired at by the other two parties from the truck with double-barrel shotguns at close range, and he fired in return to protect his life, the question would be purely self-defense, and to have carved out of this testimony as a fact that he was struck several times, and make that the cause of manslaughter, would have resulted, upon exception, in a reversal of the case, if the court had limited his right of self-defense by such charge on manslaughter. There was no question of the fact that the shooting occurred. The issue between them was, Who began this shooting? The state’s evidence clearly shows appellant began shooting at once upon reaching the scene, and the emploj'és or guards shot in self-defense. His theory was that, when the difficulty occurred down the street where his two comrades struck the employé with a billet, this producea the occasion of the shooting, and that he was then acting in self-defense; that he was not engaged in nor acting in concert nor agreement with those who struck the men down the street. His defensive theory seems to exclude the idea of assault on him for any other purpose except that of killing him by shooting him with a couple of shotguns. This was a direct attempt from his viewpoint to take his life, the parties being in such relation to his person that it could be done, and but for the protection of the auto he would have been killed. This would-exclude aggression on the part of appellant, and place it entirely upon deceased and his companions. If the state was right, it would place the aggression on the part of appellant in connection with their purpose in going out there, and this difficulty between his two companions and the men engaged in the trouble'when théy were struck with the clubs. The court, however, charged on manslaughter, favorably to defendant, and tbe jury found in bis favor, acquitting bim of murder. The charge on self-defense, in this connection, was based upon tbe proposition and theory that appellant was shot by deceased and bis companions at close range, and with shotguns, and that they continued to shoot, and did fire several shots. It occurs to us, if the charge specified pain and bloodshed under such circumstances, it would have been an unsafe limitation upon appellant’s right under his theory, and would practically have ■deprived him of his self-defense theories.

Nor do we think there was any merit in appellant’s contention that the court limited self-defense as only against the deceased. The court expressly instructed the jury that he had a right to shoot in self-defense, not only against deceased, but any other person who was engaged in shooting at him. Exception by appellant to the charge is not sustained by the expressions in the charge. The court instructed the jury that appellant had the right of self-defense if assaulted by deceased or any other person, etc.

Another exception was reserved to the charge because it did not inform the jury appellant had the legal right to go to the scene of the killing for the purpose of picketing or talking to the employés of the 'company, in order to induce them to quit work and join in the strike. The court in the main charge did not 'so instruct the. jury, but gave appellant’s requested instruction presenting not only that question, but further that he had the right to arm himself, etc., and to go to the place where the trouble occurred, and to defend himself against any attack that might be made upon him, and that such action would not abridge his right of self-defense. His theory of the case was, and he so testified, that he went there to peacefully talk to these people and to induce them to quit work, and in so doing armed himself to protect his person from any assault that might be made against him. The charge as given is in accordance with the rule laid down in Shannon v. State, 35 Tex. Or. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. This case has been followed by numerous cases. He also gave another special charge, requested by appellant, that although he went with Rob Roy and Bohanan to the place of the trouble, and that though they engaged in a combat with a employe of the company, he (appellant) would not be responsible unless such conduct was a part of the agreement to do what was done, and that if they engaged in an independent enterprise of this sort without his concurrence or knowledge, that he would not be responsible for it, and the jury should find him not guilty from that viewpoint, if they found the facts as indicated in the charge. He also instructed the jury that, if appellant shot originally in self-defense, he had a right to continue to shoot until all danger was passed. Nor do we think there was error in the court’s charge upon the issue of provoking a difficulty. We think this question was in the case, as shown by the testimony, even that introduced by the appellant. The only reason why this question was not in the case would arise from the fact that appellant was the aggressor from the beginning and pushed the difficulty to its final conclusion. This he denied, claiming that, while he went there, he did not go for the purpose of Bringing on the difficulty, but to defend himself in case it was brought upon him without legal excuse. The court’s charge on provoking a difficulty, we think, was called for by the facts, and it was a correct charge; that is, it charged both the theory of provoking a difficulty for the purpose 'of killing, or for the purpose of not killing. Upon this theory of the case manslaughter became an issue,, and not only was it an issue, but provoking the difficulty was in the case by reason of the facts pertaining to self-defense. The facts authorized the court ‘ to limit and abridge the right of self-defense by a charge on provoking the difficulty, if the jury should take that view of the testimony. The evidence suggested the issue. We are of opinion that this case was fairly tried, and without reversible error.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. It is now urged that the court committed error in various and sundry ways in the affirmance. It is not the purpose of this opinion to review the questions decided in the original opinion with reference to charges.

Appellant complains that the court was in error in not reversing the judgment on the ground of newly- discovered evidence as shown by the affidavit of Parkinson attached to the motion for a new trial. We have examined this motion for new trial, and fail to find such affidavit signed by Parkinson. This matter was examined before the original opinion was written., As we understand the original presentation of tire case to this court claimed newly discovered testimony was supported by the affidavit of Harrington. We failed to find an affidavit of Harrington in the record, and the question was not discussed.

There is a bill of exceptions to the introduction of testimony of the witness As-kins, a police officer, who testified that he went to the scene of the killing; that it took him about three minutes after he received the call to ride to the scene of the difficulty; that when he arrived he arrested a man by the name of Rob Roy, who had on a soldier’s uniform, and also had the big end of a bil-liarcl cue in ids hand. Tlie court says lie admitted this as a circumstance to identify Rob Roy as the person who struck Allen Le Oroy with a billiard cue. The evidence shows that appellant, Roy, and Bohanan went in a car driven by appellant to the scene of the homicide, as appellant says, for the purpose of “peacefully picketing.” There seems to have been a strike on hand, and their purpose was to induce these people to join the strike. The assaulted parties were in the employ of the telephone company. Immediately upon reaching the scene, the state’s theory of the case is that Roy and Bohanan alighted from the car, went down a short distance to where Le Croy and Ballard were at work for the telephone company, and that Be Croy was struck by Roy with the butt end of a billiard cue or a club, and that Ballard was struck at by Bohanan, and at the time this occurred appellant fired upon and killed Fisher. A •few minutes afterwards Officer Askins arrived and arrested Rob Roy. He had the big end. of a billiard cue in his hand. This testimony was admissible, even as a part of the res gestae. Appellant seems to predicate his idea of the inadmissibility of this testimony upon the theory that he and his friends only went out there on a peacefully picketing mission, and not for the purpose of engaging in serious trouble, unless they were attacked by the employés of the telephone company. That was their view of the case, but it afforded no ground of objection to the state’s testimony which showed the contrary. These were matters for the consideration of the jury, and not the subject of objections to the admission of testimony.

There is also a suggestion that after Roy struck Be Croy and knocked him down, that he dropped the billiard cue, and just about the time that Askins undertook to arrest him he picked it up. We do not think ■ this affords any objection to the introduction of the testimony. It would make no difference so far as the attack upon Be Croy was concerned whether he afterwards threw the billiard cue down.

It is also urged as error that the state was permitted to show that the two parties carried by appellant in his car to the scene of the tragedy went to where Be Croy and Ballard were at work near by and assaulted them with clubs; one striking Be Croy and the other striking at Ballard. The judge would not certify to the correctness of the alleged statement set out in the bill of exceptions as shown by his qualification. He •says the evidence was 'ample to show that the matters occurred as indicated. We are of opinion there could be no valid objection to the introduction of this testimony. This was but part of the testimony relied on to show the converse of appellant’s contention of peaceful picketing. It was admissible for the state to show that these parties who went to the scene of the trouble in the car with appellant left the car immediately upon it stopping at the point it did stop, and in going to and making an assault upon these two employes of the telephone company, as evidence from whiph the jury might conclude the parties were acting together.

It is also insisted that the court erred in not reversing the judgment because of remarks indulged by counsel for the prosecution. The court qualifies this bill by stating that he instructed the jury not to consider the same. The statements imputed to counsel in the bill of exceptions are not verified, otherwise than by the statement of the judge that he instructed the jury not to consider the remarks. The bill does not verify'the statements. It is true that they urged as ground of objection that the testimony did not justify the remarks, but these are only stated as grounds of objection, and not as matters of fact. Grounds of objection will not be treated as" statement of facts. The bill must show, if it is desired to have the matter reviewed, that there was no testimony which justified the remarks imputed to counsel.

There is another matter urged by appellant. After the fatal difficulty appellant immediately left the scene, and during the day went to Cedar Hill 18 miles from the city of Dallas, he says, to visit his parents. After making this visit and en route on his return to the city of Dallas he was in a car with a Mr. Caffey. Caffey called his attention, he says, to the fact there was an offer of $500 for his arrest. Appellant then offered to prove that he told Caffey that, if he (Caffey). would take him to the sheriff’s office that he would surrender in order that Caffey might obtain the $500 reward. Caffey did not see proper to do so. Appellant desired to introduce this; the purpose for which it was sought, as we understand thq bill, was to explain his going to the country to see his parents. This would be a self-serving declaration made to Caffey, which in no way is explanatory of his going to Cedar Hill, but an offer to benefit Caffey, if Caffey would take him to the sheriff’s office. It did not explain, or attempt to explain, why he left the scene of the tragedy and went to the country. He did explain his visit to the country, which was admitted on the theory that he went to see his parents; that his mother had been sick, and he went to see her.

We have mentioned these matters, because counsel urge in their rehearing they were of moment. We did not think so upon the original hearing, and did not discuss them, and upon a review of the matters we. are still of opinion there is no merit in any of the contentions.

The motion for rehearing will be overruled. 
      <&wkey;For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     