
    RICHARDSON v. STATE.
    (No. 7293.)
    (Court of Criminal Appeals of Texas.
    March 7, 1923.
    Rehearing Denied June 13, 1923.)
    1. Criminal law <©=5633(1) — Refusal to have jury retire while aged witness was being assisted to and from stand1 not violation of defendant’s rights.
    The court’s refusal to have jury retire while defendant’s and deceased’s aged and infirm mother, who testified for the state, was being assisted to and from the witness stand by deputy sheriffs, was not a violation of any rights of defendant.
    2. Homicide <©=>163(2) — That deceased had been away for several years djd not render inadmissible testimony as to.his general reputation.
    - That deceased had only been back at his old home-for a few months, following a prolonged absence of several years, was not good ground for rejection of testimony of qualified witnesses knowing his general reputation was that of a peaceable, law-abiding citizen.
    3. Criminal law <©=>695(2) — Objections to evidence as immaterial and irrelevant too general.
    Objections to testimony that deceased’s general reputation as a peaceable, law-abiding citizen was good, as immaterial and irrelevant, were too general.
    4. Criminal law <©=>1043(1) — 'Trial court’s rulings reviewed from standpoint of objections actually made.
    Appellate court will review action of trial court in rejecting or admitting testimony from standpoint of the objections made, and not from standpoint of objections which might have been made.
    5. Homicide <©=5300 (7) — Charge that jury were judges of the facts proper, though there was evidence which, if true, raised presumption of deceased’s intent to kill.
    Though there was evidence for-defendant of deceased’s possession and use of pistol, raising presumption under Vernon’s Ann. Pen. Code 1916, art. 11Ó6, of his intent to kill defendant, the court properly charged that the jury were the exclusive judges of the facts and the weight of the testimony.
    6. Homicide <©=>276 — Whether deceased had pistol properly left to jury on conflicting evidence.
    Where the evidence was conflicting as to whether deceased had a pistol, so as to raise presumption of his intent to kill, under Vernon’s Ann. Pen. Code 1916, art. 1106, the court properly left the question to the jury.
    On Motion for Rehearing.
    7. Homicide @=mi90(IO) — Evidence of deceased’s character admissible when threats proved though not communicated.
    Where defendant introduced evidence of attack or apparent attack on him by deceased and of prior threats to kill or injure him, evidence of deceased’s good reputation for peace and quietude was admissible under Yernon’s Ann. Pen. Code 1916, art. 1143, though such threats had not been communicated to defendant.
    8. Homicide <§=»190(10) — Evidence that deceased’s reputation for peace and quietude good admissible when threats proved; “peaceful;” “peaceable.”
    Under Yernon’s Ann. Pen. Code 1916, art. 1143, providing that when proof of threats has been made it shall be competent to introduce evidence as to whether deceased was man of violent or dangerous character or man of quiet and inoffensive disposition, evidence that deceased’s general reputation for peace and quietude was good was admissible; as one is “peaceable” who is not. quarrelsome, and a “peaceful” man is one who is. quiet and harmless in his behavior.
    9. Homicide <®==>i90(10)— Proof of general reputation of deceased admissible when threat proved; “reputation”;, “character.”
    Though Yernon’s Ann. Pen. Code 1916, art. 1143, provides that when proof of threats has been made it shall be competent to introduce evidence of deceased’s “general character,” this does not confine such evidence to proof of general character as distinguished from general reputation.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Character; Reputation.]
    10. Homicide <s=x>348— Instruction .as to presumption from deceased’s possession of pistol held not ground for reversal.
    Though instruction that, if deceased had a pistol under circumstances reasonably indicating intention to murder or inflict bodily injury on defendant, then the law presumed that he intended to murder or inflict serious bodily injury on defendant, was not in language of Yer-non’s Ann. Pen. Code 1916, art. 1106, it was not reversible error, under Vernon’s Ann. Code Cr. Proc. 1916, art. 743, relative to errors not calculated to injure accused, where court also charged that, if from deceased’s words or acts, viewed from defendant’s standpoint, it reasonably appeared that he was in danger of death or serious bodily harm, he should be acquitted.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge. '
    Frank Richardson was convicted of murder, and he appeals.
    Affirmed.
    See, also, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249.
    Gentry & Gentry, of Tyler, Stanford, Sanders & West and C. D. Hubbard, all of Canton, and E. M. Greer, of Wills Point, for appellant.
    Butler, Price & Maynor, of Tyler, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Van Zandt county of murder, and his punishment fixed at 30 years in the penitentiary.

Serious complaint is made of the refusal of appellant’s request that the jury be retired while the aged mother of appellant was being assisted to and from the witness stand during the trial of this case. The matter is made the subject of a bill of exceptions, in which it is made to appear that said witness was aged and infirm and that it was apparently necessary that she he assisted to and from the witness stand, and that in fact she was brought into the courtroom and to the witness box and assisted in leaving same by two deputy sheriffs. This court does not know how to properly appraise a complaint such as this. Necessarily large discretion is confined in trial courts in matters of procedure, and in order to call same into review by us on appeal it seems universally held that there must be an' affirmative showing of injury, or a flagrant abuse of the discretion of the lower court. We have been unable to find any authority holding upon the same or a similar state of facts that injury must be inferred from a refusal such as this. While the trial court might have well granted the request of appellant and thus avoided any possible claim of injury, we are not able to conclude that his refusal of such request was a violation of the rights of the appellant from which reversible error appears.

A number of witnesses for the state were permitted to testify over objection of appellant'that the reputation of deceased for peace and quietude was good. All the bills of exception complaining of this matter will be considered together. The record before us shows proof of threats made by deceased immediately preceding the homicide and also prior thereto. Appellant’s witness Steele swore that just before the shooting occurred appellant asked deceased what he was doing at the house and that deceased replied, “I will show you what I am doing hereand that he went and procured and presented a pistol, and then called out to the mother of himself and appellant, “Move, ma, and I will show him what I am doing here;” that in a minute or two appellant shot and killed deceased. Other witnesses, including Charles Jones, Alto Jones, one Marmar, and Hon. N. A. Gentry, all testified to threats made by deceased at other times; no proof appearing of the communication of these prior threats. Appellant objected to the proof of the good reputation of deceased on tiie ground that it was immaterial, irrelevant, and prejudicial and bore on no issue in the case, and that deceased had been away from the county on a prolonged absence until a few months prior to the homicide, and that the witnesses could not therefore have formed an opinion provable in court. The bill of exceptions as presented to the trial court contained the further ground of objection that there was no proof of communication of threats to appellant. The trial court refused to approve the bill with this statement in it, and appends thereto a qualification in which he states that no objection was offered on the ground that the threats had not been communicated.

That the deceased had only been back "at his old home for a few months, following a prolonged absence of several years, would not seem good ground for the rejection' of testimony of witnesses who qualified that they knew his general reputation for being a peaceable, law-abiding citizen and that it was good, but would seem rather to go to the weight of such . testimony. Objections that the testimony is immaterial and irrelevant are too general. There are numerous decisions holding that" this court will judge of the action of the trial court in rejecting or admitting testimony from the standpoint of the objections made, and not from the stand-, point of objections which might have been made but were not. Fluewellian v. State, 59 Tex. Cr. R. 334, 128 S. W. 622; Ward v. State, 66 Tex. Cr. R. 313, 146 S. W. 931; Irby v. State, 69 Tex. Cr. R. 619, 155 S. W. 544.

If the objection was specific enough, we still doubt the application and soundness of the rule sought to be invoked by appellant, that is, that evidence of the good character of the deceased will not be admitted except where the proof shows communicated threats. The only case in which the doctrine is directly held is Arnwine v. State, 50 Tex. Cr. R. 254, 96 S. W. 4. In a companion case, Arnwine v. State, 50 Tex. Cr. R. 477, 99 S. W. 97, the correctness of this holding as announced in the prior and companion case was vigorously assailed. We have searched in vain for authorities approving the holding in the first Arnwine 'Case. In Jirou v. State, 53 Tex. Cr. R. 18, 108 S. W. 655, while this court was graced by the presence of the eminent jurist who wrote the opinion in the first Amwine Case, this court, speaking through Judge Ramsey, after quoting the statute, article 1143, Vernon’s P. C. (then article 713, P. C.), says:

“The statute makes no distinction in the rule laid down authorizing the introduction of proof of deceased’s reputation, between threats communicated or uncommunicated, nor would there seem to be any reason why, as to communicated threats, a different rule should obtain between cases where the threats were communicated to a defendant and believed by him, in a case where they were made to him by the deceased in person.- To sustain appellant’s contention we would have to ingraft an exception on the statute, which the statute itself has not made. We think, therefore, that this proof under the statute and decisions was dearly admissible.”

The Jirou Case is approved in Canon v. State, 59 Tex. Cr. R. 407, 128 S. W. 141, in an opinion written by the learned judge who wrote, in the first Arnwine Case; also in Williams v. State, 61 Tex. Cr. R. 364, 136 S. W. 771, the same learned judge affirms the admissibility of similar evidence and makes no reference to the Amwine decision. Reference to the three authorities cited in the first Arnwine decision, supra, and an examination of them raises doubt of their applicability. Rhea v. State, 37 Tex. Cr. R. 138, 38 S. W. 1012, and Sims v. State, 38 Tex. Cr. R. 637, 44 S. W. 522, two of the cases cited in the Arnwine opinion, were both written by Judge Henderson, and neither of them lay down the rule that evidence of the good reputation of deceased will not be admitted except in cases of communicated threats, nor do we think either of them to contain any expression tending to support said conclusion. In the instant case appellant proved by his witness Steele a threat apparently accompanied by a demonstration on the part of deceased, immediately preceding the killing, and also introduced the testimony of several other witnesses of uncommunicatéd threats preceding the killing. Proof of prior threats has always been held admissible in cases of self-defense. If accompanied or followed by testimony of. a demonstration on the part of deceased, such evidence may afford justification for the killing. If the issue be as to who began the difficulty in a case wherein self-defense is set up, proof of un-communicated threats is held to aid in solving the issue. The statute makes no distinction between the admissibility of such testimony in a case of communicated and one of uncommunicated threats. The plain, pointed, and unequivocal terms of article 1143, supra, are as follows:

“In every instance where proof of threats has been made, it shhll be competent to introduce evidence of the general character of the deceased.”

When the language used in a statute is not plain or its meaning not clear, resort may be had to rules of construction; but when it is plain the courts have no right to add to or take from the statutory utterance its unmistakable meaning. The admission of the testimony as to the general character of deceased was not erroneous.

In the charge of the court appears the following :

“You are further -instructed that, if you find and believe from the evidence that at the time the defendant shot and killed the deceased, if he did, that the deceased had a pistol in his hand, under circumstances which reasonably in•dicated an intention' to murder or to inflict serious bodily injury upon bim, then the law presumes and you shall presume that’the deceased intended to murder or to inflict serious bodily inj'ury upon the defendant.”

It is urged, this was not a proper application of the law of article 1106, P. 0. In Kendall v. State, 8 Tex. App. 569, Judge Clark discusses article 1106, andi states how same should be given to the jury in application thereof to the facts of a given case. We quote from Judge Clark’s opinion:

“The provisions of this article were directly applicable to certain phases of the evidence, and of paramount importance to the rights of the defendant. If the jury believed from the evidence that, at the time the fatal shot was fired by the defendant, the deceased, Brown, was making a violent attack upon Brook's, under circumstances which reasonably indicated an intention upon his part to murder or to maim Brooks, and the weapon used by Brown, and the manner of its use, were such ás were calculated to produce either of those results, then the law presumed that Brown designed to murder or to maim Brooks, and the jury should have been so informed in the most explicit terms.”

Appellant has also an exception to that part of the court’s charge wherein they are told that they are the exclusive judges of the facts and the weight of the testimony, contending that in a case such as this, and where the law of article 1106 may be demanded, the charge ought to instruct the jury that where the law creats certain presumptions arising, from facts the jury are not the exclusive judges of the facts. We are unable to agree to this. The state’s theory, supported by its proof, was that deceased had no pistol and that he was not attempting murder or any other crime when killed. Appellants’ testimony was to a contrary effect. Upon this condition of dispute as to whether in fact there was a pistol in the hands of deceased when killed, and as to whether he was attempting to kill appellant, no one 'could pass in judgment save the jury. Unless they found upon the facts, dependent on what the witnesses said and which of them the jury believed, that it was true that deceased had a pistol at the time he was shot, and was making a violent attack on appellant under circumstances reasonably indicating an intention on his part to kill, then no presumption of law could arise. It is figuratively Said, but is actually true, that a fountain cannot rise higher than its source; the presumption of law cannot arise until its facts be determined. These being in dispute, no one could settle them but the jury. In settling them the jury must be told in due and ancient form that they are to decide which of the witnesses told the' truth. How else would appellant have the learned trial'judge proceed? How else could this court decide? Appfellant’s witnesses swore that deceased had a pistol. The state’s Witnfess’es with’ equal positiveness denied this fact.- If the trial judge had taken the settlement of this disputed issue away from the jury and decided it aga-inst appellant, we would promptly reverse the case. If he had decided it in favor of appellant, the rights of the state would have suffered irreparable injury. He should and did leave it where it belonged, in the hands of the jury for their decision.

We have weighed all the contentions made. The case has been here before. Richardson v. State, 91 Tex. Cr. K. 318, 239 S. W. 218, 20 A. L. R. 1249. The errors complained of, but not here discussed, have been considered. Appellant killed his brother. The shooting was in the presence of their mother. She was the state’s main witness. She had made her home with appellant for years before the homicide. Other witnesses testified. The evidence was fully developed. The law seems to have been fairly submitted, and in its light and upon the facts the jury have decided the case against appellant.

An affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

The complaint of the receipt of evidence to the effect that the deceased bore a good reputation for peace and quietude is not sound. Appellant, admitting the homicide and endeavoring to excuse it upon the ground of self-defense, introduced evidence of an attack or an apparent attack by the deceased at the time he was killed and that prior thereto he had made threats to kill or do injury to the person of the appellant. It was competent for the state to meet such testimony by the evidence of the reputation pientioned. The expressions in the Arnwine Cases, 50 Tex. Cr. R. 254, 96 S. W. 4, and 50 Tex. Cr. R. R. 477, 99 S. W. 97, to the contrary turned upon the construction of the statute from which we quote:

“Where a defendant accused of- murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that, at the time of the homicide, the person killed by some act then done manifested an intention to execute the threat so made. In every instance where proof of threats has been made, it shall.be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made.” Article 1143, Renal Oode.

Reference, however, is made to some decisions of this court. One of these, Russell v. State, 11 Tex. App. 289, makes no reference to uncommunicated threats. It simply held that, Russell claiming to have acted in the defense of Ms life against the aggression of the deceased, and having introduced evidence that the deceased had made threats against the life of the appellant, of which the accused was informed, the trial court was in error in excluding the evidence of the character of the deceased. Sims Case, 38 Tex. Cr. R. 642, 44 S. W. 522, if we properly comprehend it, was not one in which communicated threats were relied upon as a justification for the receipt of evidence of the reputation of deceased. Quoting from the opinion, it is said:

“It is shown by the bill that said testimony was admitted after defendant had introduced evidence of threats made by the deceased against him. We think the action of the court in this respect was proper.’,’

In Rhea’s Case, 37 Tex. Cr. R. 139, 38 S. W. 1012, also cited in Arnwine’s Case, it was held that proof of the good character of the deceased was accepted on the ground that the appellant had proved that a previous difficulty had taken place and that threats had been made against the appellant by the, deceased. We observe nothing in the case which indicates that the threat mentioned was communicated. The statute, as it will be noted, is subdivided. The first paragraph doubtless is restricted to communicated threats, and the right to justify the homicide because of them limited to occasions upon which the person killed, by some act then done, manifests an intention to execute the threat. The other subdivision, however, is general, and appears unrestricted in the statement that in every case where proof of threats has been made it shall be competent to introduce evidence of the' general character of the deceased. This latter statement may, we think, furnish a statutory' b¿sis for the receipt of evidence of the good character of the deceased where uncommunicated threats are proved; whether so or not, it does not, in our judgment, restrict the common-law rule relating to the receipt of evidence of threats and the character of the deceased in homicide cases. While uncommuni-cated threats do not afford justineation, proof of them is held admissible in cases of self-defense where there is an issue as to who was the aggressor. Communicated threats afford aid to the, jury in determining the state of mind of the accused so that the matter may be viewed from his standpoint. TJncommunieated threats bear upon the disposition of the deceased towards the accused and are usable to aid the jury to solve a controverted issue touching who began the difficulty, when such issue is material. The court in this case informed the jury of the purpose of the uncommunicated threat. On the subject under discussion we quote from Wigmore on Evidence, § 110:

“Where, on a charge' of homicide, the excuse is self-defense, and the controversy is whether the deceased .was the aggressor, the deceased’s threats against the accused are relevant. The deceased’s design to do violence upon the defendant is of some value to show that on the occasion m question he did carry out, or attempted to carry out, Ms design. Moreover, it is the fact of Ms design, irrespective of its communication to the defendant, that is evidential.”

From the same author we quote section 63:

“When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action. * * * There ought, of course, to be some other appreciable evidence of the deceased’s aggression, for the character evidence can hardly b.e of value unless there is otherwise a fair possibility of doubt on the point.”

As pointed out in the original opinion, the declaration in question in Arnwine’s Case is out of harmony with both prior and later decisions. See Jirou v. State, 53 Tex. Cr. R. 18, 108 S. W. 655, and the other cases to which reference is made in the original opinion.

The form of the question put to the witnesses upon the reputation of the deceased is made the subject of discussion in the motion, though frankly we do not find the point made in the bill. However, treating it upon its merits, the question raised is that the statute on threats (article 1143, P. C.), declares that the inquiry shall extend only to whether the deceased was a man of violent or dangerous character or kind and inoffensive disposition. The language in which the proof was made was that the general reputation of the deceased for peace and quietude was good. The question was framed in language often found approved in the reports. One who is of a quiet and peaceful disposition is not of a violent and dangerous one. One is peaceable who is not quarrelsome. Webster’s Diet. A peaceful man is one who is quiet and harmless in his behavior. Cy-clopedic Diet. p. 678.

It is also suggested that, as used in the statute, the words “general character” are distinguished from and do not'mean the same as .“general reputation.” It occurs to us that it would be a harsh rule against the accused to place upon it such limitations in Ms effort to justify upon the ground of threats communicated to him. Especially in this true, bearing in mind the clause of the statute touching the defense of threats accompanied by some act indicátive of an intention to carry the threat into effect, is a part of the law of self-defense, and the evidence is to be view-éd from the standpoint of the accused. He may well know the general reputation of the deceased for violence' and be able to establish it, but to confine Mm to-the proof of the character' and give it the limited meaning contended for would put the' accused at a great disadvantage, and place limitations upon- the statute passed for his benefit which, in our opinion, were foreign to its purpose. On the subject we quote from Mr. Wharton’s work on Criminal Evidence, vol. 1, § 58:

“Character, in the sense in which the term is used in jurisprudence, means the estimate attached to the individual by the community, not the real qualities of the individual, as conceived by the witness. It is not what the individual really is, but what he is reputed to be, generally, by the society and the community in which he moves and resides. * * *
“The majority of American cases make no distinction between the use of the words ‘character’ and ‘reputation,’ using them interchangeably one for the other, though a few cases maintain that the distinction between the two words should be observed.”

The views of Mr. Wharton are the same in substance as are expressed in the text in 6 Cyc. of Law & Proc. p. 892, in support of which text numerous cases are cited. This principle is not in conflict with the rule which forbids the proof of a specific act by evidence of reputation.

The charge submitting the law touching the use of a deadly weapon is quoted in the original opinion. It is criticized in the motion for rehearing in that it contains the words “under circumstances which reasonably indicated an intention to murder or inflict serious bodily injury upon him.” Appellant insists that this is an undue restriction upon the right of the jury to apply the legal presumption intended by article 1106 of the Penal Code. Doubtless the charge would be more regular if it had used the words of the statute instead of those' quoted above. However, the injurious effect of the departure seems questionable at least. Under the statute, the presumption of the intent to kill arises when at the time of the homicide the person killed is using a deadly weapon. The charge under consideration may convey the idea that the presumption would prevail if the circumstances indicated that deceased was using a pistol. Independent of the paragraph of the charge in question, the court told the jury to acquit if from the words or acts of the deceased, as viewed from appellant’s standpoint, in the light of all the facts within his knowledge, it reasonably appeared to him that he was in danger of death or serious bodily harm, and on these matters the jury was, in the same paragraph, told to resolve any reasonable doubt they might have in appellant’s favor.

In Gunn’s Case (No. 6459) 252 S. W. 172, recently decided, thjs court by a majority opinion, upon the evidence touching the use of a deadly weapon not materially different from the present case, held that, although there was no reference "in the charge of the trial court to the presumption arising from the use of a deadly weapon, a reversal was not required. In that case the court charged, as in this one, upon the law of self-defense, embracing both real and apparent danger, but did not attempt to charge on the presumption mentioned in article 1106 of the Penal Code. In the opinion mentioned this ruling is based upon the terms of article 743 of the C. C. P., in- which a reversal is forbidden because of a fault in the charge not calculated to injure the rights of the accused nor to militate against the fairness and impartiality of his trial. The facts revealed in Gunn’s Case, supra, were not more cogent to show an absence of injury than those in this one, and in the instant case the charge was more favorable to the appellant, in that it did embrace a specific charge upon the presumption named in article 1106, supra. If there be error against the appellant in the manner in which the jury was, in the instant case, advised of the presumption arising from the use of a deadly weapon by the deceased, it was not of that prejudicial character which would, in view of article 743, supra, authorize a reversal of the judgment.

From what has been said, it follows that, in our judgment, the motion for rehearing should be overruled; and it is so ordered. 
      <©=>For other cases see same topic and KEX-NUMBER in all Key-Numbered Digests and Indexes
     
      ®m»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     