
    ROBERTS v. STATE.
    (No. 10509.)
    Court of Criminal Appeals of Texas.
    Feb. 2, 1927.
    State’s Rehearing Denied June 8, 1927.
    I.Homicide &wkey;>203(3) — Evidence held sufficient proof of sanity to render dying declarations admissible.
    Evidence that deceased was conscious of approaching death, that his declarations were voluntary, and not in response to leading questions and testimony of two physicians, that he then appeared to be of sound mind, held, sufficient proof of sanity, in absence of controverting evidence to render the declarations admissible.
    2. Criminal law <&wkey;ll70l/2(l) — Refusing to require prosecutors to> show to defendant’s counsel, during testimony, written statement taken from witness held not error, in view of subsequent tender and permission to recall witness.
    Refusing to require prosecuting attorneys tg show to defendant’s counsel a written statement taken from defendant’s daughter while she was on the witness stand was not error, where thereafter the statement was tendered to counsel with permission to recall the witness, which was declined.
    3. Criminal law <&wkey;670 — Refusal to permit cross-examination of witness relative to controversy between him and deceased held proper, in absence of showing defendant knew of facts sought to be elicited.
    Refusal to permit, cross-examination of state’s witness, a city marshal, to prove that an independent controversy between witness and deceased had been started by deceased, held proper, where it was not shown that defendant was cognizant of any of the facts sought to be elicited.
    4. Witnesses <&wkey;379(4) — Sworn statement of defendant’s daughter to county attorney soon after homicide, contradictory to testimony for defendant, was admissible for impeachment.
    Sworn written statement made by defendant’s daughter to the county attorney soon after the homicide, contradictory to her testimony on defendant’s behalf, the statements of which the county attorney testified were made by the witness to him, was admissible for the purpose of impeachment.
    5. Witnesses <&wkey;203 — Prosecuting attorney’s testimony to rebut defendant’s evidence of conversation between him and defendant held admissible against objection of privilege.
    Testimony of one of private prosecuting attorneys that defendant made no statement to him relative to the homicide on calling him to jail was admissible against objection that it was a privileged communication between attorney and client, where defendant had testified to a contrary state of facts.
    6. Witnesses &wkey;>405 (2) — Prosecuting attorney’s testimony held admissible to rebut defendant’s evidence of conversation between him and deceased against objection it was on collateral issue.
    Testimony of one of private prosecuting attorneys that defendant made no statement to him relative to the homicide on calling him to jail held admissible against objection that, if offered for purposes of impeachment, it was on collateral issue.
    On Motion for Rehearing.
    7. Criminal law <&wkey;449(2) — Reception of testimony as to deceased’s reason for going to defendant’s home, not referring to any conversation, objected! to as conclusion, held not error.
    Reception of testimony that deceased went to defendant’s home for purpose of inducing him to withdraw certain complaints, over objection that it was conclusion of witness, in absence o£ reference to any conversation with deceased, held) not erroneous, since.conclusion not resting on hearsay may be primary evidence.
    8. Criminal law <3=1043(3) — Testimony of deceased’s reason for going to defendant’s home held not .reversible error as containing undisclosed motive, where objection made was on other insufficient ground.
    Admitting state’s testimony that deceased went to defendant’s home for purpose of inducing him to withdraw complaint held! not reversible error on ground that it contained undisclosed motive of deceased, where objection made at the trial was only on 'another insufficient ground, since correctness of trial court’s rulings will be construed on grounds presented to trial court.
    9. Criminal law <§=1043 (3)— Court of Criminal Appeals determines correctness of rulings on grounds urged in trial court.
    Court of Criminal Appeals determines correctness of trial court’s rulings in light of matter as presented to .the trial court, and will not supply reasons against admission of testimony not called to attention when the ruling was made.
    •10. Homicide <§=276 — Evidence that deceased called at defendant’s home, abusing him and wife, and threatening violence, held for jury in homicide prosecution.
    Evidence that deceased called at defendant’s home, calling him and his wife vile names, and threatening to kill him, held for jury in prosecution for homicide.
    II. Criminal law <§=729, 730(15) — Prosecutor’s calling defendant “damn liar” while latter was testifying held error, notwithstanding apology and instruction, where prosecutor also testified testimony was untrue.
    Private prosecutor’s denunciation of defendant as “damn liar” in response to defendant’s .testimony that he had told him deceased had a pistol held} prejudicial error, notwithstanding apology and court’s instructions to .disregard the remark, where the same prosecutor later testified in effect that defendant’s testimony on the point was untrue, and the question whether deceased carried a pistol was a vital issue.
    Commissioners’' Decision.
    ■ Appeal from District Court, Dynn County; Gordon B. McGuire, Judge.
    . Add "Lee Roberts was convicted .of manslaughter, and-he appeals.
    Reversed and remanded.
    Vickers & Campbell, of Lubbock, B. P. Maddox, of Tahoka, and T. L. Price, of Post, for appellant.
    Sam D. Stinson, State’s Atty., and Kobt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of manslaughter,, and his punishment assessed at 5 years in the penitentiary.

The record discloses that the appellant was indicted for murder, being charged with shooting and killing Calvin Petty with a shotgun on or about March 28; 1925. It appears from the record that prior to the homicide the appellant had made complaints against Oscar Petty, brother of deceased, and Prank Eubanks, charging them with adultery. It was the contention of the state that the deceased and Earl McNurman had gone to the'residence of the appellant on a friendly mission, and for the purpose of seeing appellant and requesting him to withdraw said complaints; and that, while at the residence of the appellant, and while deceased and McNurman were unarmed, the appellant, without provocation, killed the deceased by shooting him twice with a shotgun. The appellant defended upon the ground that the deceased had accosted him on the morning of the homicide in the town of O’Donnell, and demanded that he withdraw said complaints, threatening him with death before sundown in the event he failed to do so; that in the afternoon deceased and McNur-man appeared at his residence in an automobile; that, after deceased had cursed the appellant, and accused his wife of being unchaste, deceased and McNurman grabbed him (appellant), and were attempting to throw him in their car when the appellant’s wife appeared upon the scene with a gun, whereupon the appellant then broke loose from the parties, ran into the house, and secured his gun; that he observed the deceased getting out of his automobile with a drawn pistol, and heard ’him tell McNur-. man, “Throw the son of a bitch in the car,” and stated that he (deceased) would kill the appellant if the complaints were hot withdrawn, at which time appellant shot and killed deceased.

The record discloses nine bills of exception. Bill No. 1A complains of the manner of summoning the venire. The disposition we have made of the appeal precludes the necessity of discussing this bill, as this question is not likely to arise again upon another trial.

Bill of exception No. 1 complains of the action of the court in permitting the state’s witness McNurman, on direct examination by the state, to testify, over appellant’s objection, that he knew the reason why the deceased went to appellant’s house just prior to the homicide, and that the deceased’s purpose was to try to get appellant to withdraw, the complaints that had been filed against Eubanks and deceased’s brother, Oscar Petty. The objection urged to this testimony was that it was admitting the undisclosed motives of the deceased, which were unknown to the appellant, and which were hearsay. We think the learned trial judge fell into error in the admission of this testimony, in the absence of a showing that the appellant was apprised of said motives of the deceased, and especially where the téstímony impinged on the defense,' as in this case. Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 484; Dennis v. State, 101 Tex. Cr. R. 454, 276 S. W. 715. Also see Branch’s Ann. P. C. § 1930, citing Brumley v. State, 21 Tex. App. 238, 17 S. W. 140, 57 Am. Rep. 612, and many other authorities.

Bill No. 2 complains of the action of the court in permitting the witnesses Dr. Campbell and Bert Bailey to testify to the dying declarations of the deceased, on the ground that there was not a sufficient predicate laid to show that the deceased was sane at the time of making such declarations. We are unable to agree with this contention. The testimony of said witnesses shows that the deceased was conscious of approaching death, and the doctor testified, “I judge he was of sound mind.” The witness Bailey testified to hearing the deceased make a statement, and that same was voluntary, and not under persuasion, or in response to any leading questions, and then testified, “He seemed to be of sound mind.” We are of the opinion that this evidence was a sufficient predicate for the admission of the dying declarations of the deceased, especially in the absence of any controverting evidence thereto.

In bills 3, 4, and 5 complaint is made to the action of the private prosecuting attorney, G. E. Eockhart, with reference to his manner and conduct in interrogating the appellant while on the stand, but, in view of the court’s ruling and the disposition that we have made of this case, it becomes unnecessary to discuss these bills, as the issues contained therein are not likely to arise, again upon another trial.

Bill No. 6 complains of the refusal of the court to require the private prosecuting attorneys to deliver to appellant’s counsel a written statement taken by the county attorney from the appellant’s daughter, Miss Claudie Roberts, while she was being questioned by the state relative to said written statement. The qualification of this bill by the court shows that, although he refused to require the state to permit appellant’s counsel to see said written statement while said witness was upon the stand, he did thereafter tender said statement to appellant’s counsel and advised them that they could call the witness back to the stand for further examination, if they desired to do so, which offer was declined by them. In view of this qualification, we are of the opinion that the bill fails to show such error as would require a reversal of the case.

Bill No. 7 complains of the refusal of the court to permit the appellant, on cross-examination of the state’s witness Wimbley, a city marshal, to prove that the deceased started a difficulty in which said officer and deceased were engaged, and that said diffi-eulty'arose :«ut of a complaint made’by one Boldin against the deceased for ’ disturbing the peace, upon which a 'warrant/of arrest had been issued, and- that the- officer was attempting to execute'same at said- time; and, further, that deceased attempted to • make Boldin withdraw said complaint. Appellant’s contention is that this testimony was admissible for the purpose of showing the dangerous character of dec'eased, and for the purpose of showing that he (deceased) began the difficulty with "appellant in the instant case. This bill fails to show that the appellant was cognizant' of any of the facts sought from said witness, nor are there any facts set out in said bill authorizing the admission of such testimony. Branch’s Ann. P. 0. § 2094, citing Patterson v. State (Tex. Cr. App.) 56 S. W. 59; Willis v. State, 49 Tex. Cr. R. 142, 90 S. W. 1100, and many other authorities.

Bill No. 8 complains of the action of the court in permitting the state to introduce in evidence, over the appellant’s objection, a written statement made and sworn to by the appellant’s daughter shortly after the homicide to the county attorney, which statement was, in effect, contradictory to her testimony upon the stand in- behalf of her father. The county attorney testified that the statements in this affidavit were' made by the witness to him. We are of the opinion that this testimony was admissible for the purpose of impeaching said witness; and' that there was no error in the. refusal' of / the court to exclude same from the jury. ■ .•■,

Bill No. 9 complains' of the action of the court in permitting the state'to show by G. E. Lockhart, one of the private prosecuting attorneys, that the appellant made no statement to him relative to the homicide at the time appellant called him .to the jail for the purpose of talking to him. It 'is contended that this testimony- was inadmissible because it was a privileged' communication between attorney and client, and, if offered for impeachment purposes, It'-was on a collateral issue. We are of the opinion ’ that this bill, as-presented, shows no error.- The appellant had testified to a contrary state of facts, which authorized the state to rebut appellant’s testimony by the introduction of the evidence; complained of in this bill;

For the error above mentioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered. ■

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court/ '

On Motion for Rehearing.

HAWKINS, J.

.The .state insists that our judgment reversal was wrong, and we have again carefully reviewed the record. Bill of exceptions No. 1, when considered together with the qualification placed thereon by the court without objection, shows that the state witness McNurman was asked by the prosecuting attorney if he knew why deceased went to the house of appellant on the occasion of the homicide, and that he answered without objection that he did. He was further asked by the prosecution to state why. This was objected to solely on the ground that it would be a conclusion of the witness, and that any conversation between witness and deceased, not in the presence of appellant, would not be admissible. This objection was overruled, and the witness answered that the reason deceased went to said house was to try to get appellant to withdraw a complaint filed by him against Frank Eubanks and a brother of deceased. We are unable to find anything in the answer given which contained any conversation theretofore had between the witness and deceased, and that part of the objection directed thereat was groundless. The objection to this testimony that it was a conclusion avails nothing. The conclusion, unless resting upon such matters as hearsay, may be primary evidence, and entirely competent. It may be the expression of what is known to the witness, and, in fact, this witness testified that he did know said reason. For aught we learn from the bill or otherwise, the witness may have himself suggested to deceased that he go and see appellant, and get him to dismiss the complaint, or he may have known such fact from matters arising prior thereto, which did not involve any conversation with deceased. We find an argument in the able brief of appellant to the effect that he was objecting to this testimony because it contained the undisclosed motive of the deceased; but, when we examine the bill of exceptions to see what was ruled out by the court below, we note that there was no suggestion that the question called for any undisclosed motive. On appeal we pass on the correctness of the rulings of the trial courts in the light that the matter was presented to' them,, and we cannot here supply reasons why testimony should not have been admitted which were not advanced or called to the attention of the lower courts when the ruling was made. Upon more mature consideration we have concluded that we erred in reversing this case for the admission of this testimony. Tait v. State (No. 10058, opinion on rehearing May 11, 1927) 294 S. W. 557.

The objection to the venire, which appears in one of the bills of exception, is not briefed, and we find nothing therein subject to the complaint.

The record discloses that the killing came up over some complaints appellant had filed against one Eubanks and a brother of deceased. McNurman and deceased had gone to appellant’s home, where, according to appellant, inquiry regarding the complaints was further pursued by deceased. On his direct examination appellant related the circumstances immediately incident to the killing as follows:

“I told him (deceased) that I was the man that filed the complaints, and, when I told him I was the man that filed the complaints, he asked me why I filed the complaints, and I told him because they went and stayed all night with my wife’s sister, and slandered my home, and he says: ‘Slander your home; hell, your wife’s nothing but a whore, and you’re a pimping son of a bitch for her,’ and, when he told me that, Calvin grabbed hold of me, grabbed by the arm,' and McNurman grabbed me, and then Betty got his gun, which was laying on the seat between him and McNurman, got his gun in his right hand, and we scuffled backward and forward with the gun, and then my wife came out with her shotgun and threw it on them, and McNur-man turned his hold aloose. If my wife said anything, I didn’t understand what she said, and, when McNurman turned his hold aloose, I backed off something like three steps with my hands up, and Betty says, ‘Get out and throw the son of a bitch in here; he is going to withdraw those complaints, or I’ll kill him.’ At that time Calvin had the gun throwed down on me. McNurman pushed open the door 'and got out and started toward me, and I ran in the house just as quick as I could and got my shotgun, and fired two shots at Betty’s body.”

We are not concerned as to whether the foregoing recitals by appellant are true or not. The testimony did raise an issue which it was the province of the jury to determine, and in doing so they should be controlled solely by the evidence. If misconduct of private prosecutor occurred during the trial which probably influenced the jury to the hurt of appellant, our duty demands that we take note of it. The unfortunate incident to which we refer was introduced into the case by Mr. Lockhart, who had been employed to prosecute asking appellant on cross-examination who the first man was he had told that deceased called his wife a “whore,” to which appellant replied that it was to the attorney asking the question. Counsel replied to this by saying, “you didn’t tell me anything of the kind.” This brought an objection from appellant’s counsel, and the court admonished Mr. Lockhart not to argue with the witness. This much is shown by bill of exception No. 3. Bill 4 shows that upon further cross-examination counsel asked appellant this question, “Who told you to say that Calvin Betty (deceased) said your wife was a ‘whore?’” Before objection could be interposed, appellant answered, “He called my wife a whore.” Appellant’s counsel reserved an exception on the ground that this tended to reflect upon appellant and his counsel. The entire cross-examination of appellant as revealed by the statement of facts shows that Mr. L-ockhart was seriously questioning the truth of appellant’s statement that deceased had applied such an epithet to appellant’s wife, and also that deceased had a pistol at the time of the killing. When appellant was taken on redirect examination it is shown by bill of exception 5 that his. own" counsel asked him regarding his efforts to employ Mr. Lock-hart. and then asked if he did not say that he had first told Mr. Lockhart about deceased having a pistol. When appellant answered in the affirmative, Mr. Lockhart immediately, in the presence of the jury, denounced appellant as a “damn liar.” The court severely reprimanded counsel, and imposed a fine of ?50 upon him. After this incident, the court recessed until the following morning, at which time Mr. Lockhart apologized to the court and jury, and asked the court to instruct the jury not to consider his remark of the day before. Later in the trial Mr. Lockhart was sworn as a witness, and testified that he had no conversation with appellant relative to the facts of the case. He said appellant sent for him, and that he went to see him, but told appellant that he did not want to hear the facts or go into the case. If this regrettable incident had closed with the transaction complained of in bill No. 3 it might have been held harmless on the ground that counsel’s denial of the truth of the particular statement therein complained of related to a subject which was cognizable by the jury only on the issue of manslaughter, and, the verdict being for that offense only, it could not be said there was probability of injury. But appellant was defending on the ground that deceased had threatened to kill him if the complaints were not withdrawn; that he was armed with a pistol and had assaulted appellant with it. Whether deceased was armed with a pistol was a vital issue in the case. The conversation between appellant and Mr. Lockhart having come into the ease as heretofore related, appellant was claiming on the trial that he had told counsel that deceased did have a pistol. Whether he did or did not so tell' the attorney would not establish as a fact that deceased had a pistol, but the question for us to determine is what was the probable effect as to this issue upon the jury’s mind when counsel denounced appellant as a “damn liar.” It certainly did not tend to support appellant’s claim. The abuse of witnesses and defendants has frequently been the subject of discussion by this court. It usually occurs in argument of counsel. Many cases involving the point are collected by Mr. Branch in section 366 of Branch’s Ann. Tex. P. C. Some of the more recent cases are Harwell v. State, 61 Tex. Cr. R. 233, 134 S. W. 701; Stroehmer v. State, 100 Tex. Cr. R. 90, 272 S. W. 163; Newton v. State, 101 Tex. Cr. R. 497, 275 S. W. 1055 and Nichols v. State (Tex. Cr. App.) 290 S. W. 1093. In Stroehmer’s Case the sheriff, while testifying as a witness, so far forgot himself as to use language reflecting upon accused. In Nichols’ Case the district attorney went beyond legitimate discussion, and in argument denounced appellant’s attorney as a “black liar.” In Newton’s Case the district attorney in his argument denounced the defendant as a “big slacker.” In all of these cases the unwarranted conduct referred to was made the basis for reversal, notwithstanding in most, if not all, of them the court instructed the jury to disregard the incident. So far as probable injury is concerned, we can see little distinction whether the matter complained of occurred in argument or in the examination of witnesses. We doubt that counsel’s subsequent apology for his conduct and the court’s instruction for the jury to disregard it could obviate the harm. Counsel had denounced appellant as a “damn liar.” He apologized for it, but later took the stand as a witness, and the effect of his testimony was that his denunciation was true. Suppose he had testified denying the truth of appellant’s assertion (which he unquestionably had a right to do), and then in argument had denounced appellant’s statement to the contrary as a “damn lie.” Under all the authorities this court would have found great difficulty in sustaining the conviction. We see no practical difference where the denunciation occurred in the course of appellant’s examination as a witness. Doubtless eminent counsel was indignant at appellant’s statement, and justly so, if, as contended, the statement was false, but the truth of the matter brought into controversy was upon a vital issue in the case, and the conduct of prosecuting officers whether occupying that position by virtue of election or by employment should be such that no improper influence be brought to bear upon the jury in settling issues necessary to a proper determination of the case. We regret that such an incident came into the record, as doubtless does eminent counsel also, and no one quicker than he at a time when his mind is unruffled will recognize the unfairness to appellant.

Our original opinion is modified upon the point first herein considered, but we have reached the conclusion that, becaúse of the matter last discussed, the judgment must nevertheless be reversed, and the state’s motion for rehearing is therefore overruled. 
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