
    COMBS v. STATE.
    (No. 7564.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.)
    Criminal law &wkey;4!9, 420(4), 1169(1) — Testimony of statements by defendant’s daughter as to conduct-of her sister-held hearsay im>-properly admitted and prejudicial.
    Where defendant sought to reduce his offense to manslaughter by showing passion produced by defamatory statements of deceased about his daughter, examination of another of defendant’s daughters as to alleged statements made by her concerning her sister’s conduct in staying out late at night with a neighbor boy and her efforts to suppress knowledge of the fact and testimony by others that jhe made such statements held hearsay, improperly admitted and prejudicial to defendánt as tending to discredit his theory of sudden passion, especially when not limited to impeaching purposes.
    <&wkey;For other cases see same topic and KE¥-NUMBER In all Key-Mumhered Digests and Indexes
    Appeal from District Court, Lampasas County; M. B. Blair, Judge.
    P. C. Combs was convicted of murder, and he appeals.
    Beversed and remanded.
    T. S. Alexander and W. H. Browning, both of Lampasas, for appellant.
    B. G. Storey, Asst. Atty. Gen., for the State.
   MOBEOW, P. J.

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

Some time antecedent to the homicide, the appellant resided upon the farm belonging to the deceased and upon which he also lived. Appellant had two daughters, namely : Mrs. Buth Shirley and Pay Orabb. Mrs. Shirley, who resided in Port Worth, made a visit to her father, and while there, attended a gathering of young people at the home of a neighbor by the name of Jones, whose residence was about Sy2 miles distant from that at which her father resided. After the gathering, she returned to her home in company with Pascal Jones, a son of the host and hostess. They traveled alone in a buggy. The evidence is conflicting touching the hour at which the entertainment ceased. Some of the witnesses fixed the time at 10 o’clock; others at about midnight.

On the morning after the entertainment, appellant’s daughter Pay, who was at that time unmarried, went to the home of the deceased. While there the deceased requested her to tell her father that he wanted to see him. 'Besponding to this request, appellant went to the deceased and a conversation took place. According to the appellant, the deceased told him in this conversation that he had something to say which might offend him, but that he (appellant) was a friend of his and that there was no use to be offended. Deceased then said: • “What time did your daughter get in last night?” Appellant said: “It wasn’t late.” Deceased said: “Well, have you any idea what time she came in?” Appellant said: “She came in before midnight.” Deceased said: “No; she didn’t; she did not get in until after 4 o’clock. Mr. Pascal Jones stayed out all night until 4 o’clock or after, up there in the pasture with her.” Appellant, said that he did not believe it. Deceased said that he was a friend of the appellant, and did not want to get him into trouble. He remarked that the other girls in the neighborhood were good, and asked the appellant if he was going to let his daughter remain there. Appellant said that he did not believe his daughter had remained out with Jones, and the deceased said that he would not mention the matter to any one. Later, according tq the appellant, de-. ceased told him that his younger daughter was going to the bad and stated some circumstances upon which he based this opinion. Appellant said that he did not believe that his daughter had done anything subjecting her to just criticism. After these conversations, appellant remained upon the premises of the deceased for some months. They were not on unfriendly terms. Appellant was engaged by a man named Griffith to work for him, and told him that the deceased had made scandalous remarks touching Griffith’s wife. Griffith talked to the deceased about the matter, and it was denied by him, but said that he would see the appellant. He sent word to the appellant that the deceased wanted to see him, and the homicide took place at the meeting which followed. The deceased was plowing in his field. Appellant rode up to the fence outside of the field and called to the deceased. Appellant thus described what followed:

Deceased stopped his team, left his plow, came to the fence and said: “Good morning, Combs.” Appellant said: “Good morning, Summerville.” Deceased said: “Combs, I have been wanting to see you.” Appellant said: “That is what I understand you have been wanting to see me.” Deceased said: “What is this mess you have been telling about Mrs. Griffith to Mr. Griffith that I had said about Mrs. Griffith?” Deceased then repeated what purported to be a statement imputed to him, and appeared to .be getting angry. Appellant told him that he had not come for trouble. Deceased then said: “You and Griffith don’t know who in the hell you are fooling with. I have put one man under the sod, and I might put another one.” Appellant began moving back from the fence. Deceased had a whip in his hand and said: “You ain’t told me yet what you have said. I want you to tell me what I have said about Mrs. Griffith.” Appellant said: “I moved back and I told him,, T said I could tell you,’ and I told him what he said. He said: ‘You are a God damned lying son of a bitch,’ and he put his hand on the wire fence, raised his whip like that and said, ‘You are a God damned lying son of a bitch.’ I jerked my six-shooter and put it in his face, and I said, ‘Take it back,’ and he dropped his hands and said, T will take it back.’ When he said this, he said, ‘I don’t talk about my neighbors;’ and I said,- ‘You don’t talk about your‘'neighbors? You don’t talk about my girls all over the country?’ and he said, ‘Yes; I did;’- and I said, ‘You said she was crooked, didn’t you; that her character was no account;’ and he said, ‘Yes; I did and I still say-it.’ ” Deceased turned around and walked about four steps. During this time he had his shirt pushed over. Appellant was standing right against the fence, and deceased “walked about four or five steps and he throwed his hands around - and when he throwed his hand around like that, I shot him; shot at him. I believed that he was going after a pistol and at that moment I shot him in my own self-defense because I believed that he was going after a pistol to shoot me, and I knew he would shoot me if he had a pistol and I believed he had one. I shot at him three times, and I don’t know which of those shots hit him.”

After he was shot, the deceased made a statement describing the occurrence. Prom the testimony of his daughter, relating it, we quote:

“He, said Mr. Combs called him tb the fence, and asked him, ‘Mr. Summerville, I heard you wanted to see me about something;’ and he said, ‘I did;’ and he said, ‘What do you want to see me about;’ and he said, T want to know what was so scandalous about Griffith’s wife that was too scandalous to talk about;’ and Mr. Combs said, ‘That is not what I want to see you about;’ and my father said, ‘What is it you, want to see me about?’ and Combs said, ‘My.girl;’ and he said, ‘Which one?’ and Combs said, My girl Ruth; I understand you say she is a bad woman;’ and papa said, T didn’t say that; I said she is a crooked woman.’ Combs said, ‘She is not a bad woman;’ and papa said, ‘Combs, she is.’ And my father turned around and walked off and Combs shot him.”

Appellant called as a witness bis daughter, Pay Crabb. She related but one fact, namely, that on one occasion the deceased caught her by the shoulder and head and tried to kiss her, but that she struggled and released herself. ‘

After the appellant closed his case, the state called Fay Crabb, and she testified:

“I did not at any time say to Mrs. Summer-ville and family about my sister being up nearly all night on the night of the party and being afraid to tell my father about it.”

After she gave this testimony, the state called Mrs. Summerville, wife of the deceased, who testified thus:

“1 remember the occasion when Pay came down and told us about her sister and this Jones boy laying out like they did on that night, and I told Pay, asked her why she didn’t go to her papa about it, and she said, ‘Well, I want him to know it, but if I go and tell it, Ruth will deny it and papa will whip me to death.’ ”

The state also called Bessie Summerville, daughter of the deceased, and she related a conversation with Pay Crabb about the re■turn of her sister from the singing. Prom her testimony we quote:

“When Ruth came in, Pay said that Ruth told her who had brought her home, and she said not to tell her papa, and Pay said that she wouldn’t. Pay told me that Ruth came in and woke her. up and told her that the Jones boy had brought her home, and she said, ‘Pay, don’t tell papa, he will get mad,’ and she came to our house and told us, and she said that she hadn’t hardly gone to sleep after that until her papa called them to get up and get breakfast.’.’

An objection was made at the time to the inquiry by the state’s counsel of the witness Pay Crabb touching her conversation with, or declarations to, Mrs. Summerville or Miss Bessie Summerville, concerning the return of Ruth Shirley in company with Jones. Objection was also made to the proof by Mrs. Summerville and Bessie Summerville to the effect that Pay Crabb did, upon the occasion mentioned, make the declarations imputed to her by them. After the court overruled the objections and received the testimony, appellant submitted a special charge requesting its limitation, which special charge was refused and reads thus:

“Now the court instructs you that you cannot consider this testimony for the purpose of determining when the said Mrs. Shirley arrived at her father’s house on that night, nor for the purpose of affecting the character or reputation of Mrs. Shirley, nor can you consider it as affecting the guilt of the defendant in the case, but it was admitted and can be considered by you only for the purpose of aiding you (if it does aid you) in determining the credibility of the witness Pay Crabb.”

We fail to comprehend upon what theory the declarations of Pay Crabb, to which we have adverted, made in the presence of Mrs. Summerville and Bessie Summerville, were relevant upon any issue of the case. The state introduced Pay Crabb as her own witness. The objection should have been sustained to that part of the inquiry of Pay Crabb by the state which sought, to elicit her declarations made at the Summerville home on the occasion mentioned. Such declarations would have been purely hearsay, and when they were subsequently introduced through the state’s witnesses, Mrs. Summerville and her daughter, they were still hearsay. They were not admissible to impeach Pay .Crabb, because they related to an immaterial matter, viz. what the witness had said, and because she was a state’s witness; neither were they admissible as original evidence to prove any fact. By them proof was made, not only of what Fay Crabb had said to Mrs. and Miss Summerville, but what Ruth Shirley had said to Fay Orabb. Having received the testimony, however, the, court should have limited it to impeaching purposes, at least it should have so instructed the jury that' it would not be appropriated as original testimony showing that Ruth Shirley, in fact, did not return to her home on the night of the entertainment until nearly morning. Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 272. The declarations are of such a nature that the jury would be very likely to use as proof the fact that Ruth Shirley, appellant’s daughter, had remained out alone with the Jones boy for an unreasonable length of time at a very late hour of the night and that she wanted her sister Fay to suppress the fact, because she was conscious of her wrongdoing, and that Fay did suppress it, because of fear of her father. Viewed in the light of the undisputed facts, coming from both the state and the appellant, that immediately before the homicide the deceased reiterated in the presence of the appellant the insulting words concerning Ruth Shirley, the improper testimony and the failure to limit it cannot be regarded as harmless.- It was calculated to induce the jury to discredit the appellant’s theory that the insulting words used by the deceased about the daughter of the appellant produced a degree of passion which would reduce the offense to manslaughter. The insulting words relied on as adequate cause to reduce the offense to manslaughter were those addressed to the appellant at the time of the homicide. The previous insulting remarks of the deceased towards the appellant’s daughter not having been acted on at the time nor at the first meeting thereafter, they could not be relied upon as adequate cause as a matter of law. They, however, with other facts, were proper subjects of consideration in the general issue of adequate cause. The case is not like that of Squyres v. State, 92 Tex. Cr. R. 161, 242 S. W. 1024, and taken as a whole, the charge on manslaughter is not subject to just criticism. Assuming that it was incumbent upon the court, under the facts, to instruct the jury upon the law applicable to uncommuni-cated threats by the deceased, the one in the court’s charge is quite sufficient. The necessity of giving such a charge at all is by no means clear. See Lancaster v. State, 66 Tex. Cr. R. 658, 148 S. W. 307.

The issue of self-defense on real and apparent danger arising from appellant’s testimony was given to the jury in a charge of which there is no complaint.

The judgment is reversed and the cause remanded.  