
    LAAKE v. STATE.
    (No. 6537.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1922.
    On Motion for Rehearing, Dec. 13, 1922.)
    1. Criminal law <&wkey;68l (2) — Evidence admissible on promise of later showing of materiality.
    It is not error to admit evidence by the state under promise by’the state to show later the connection and materiality thereof, where such promise is later made good.
    2. Criminal law <&wkey;i 361(1) — Evidence of whereabouts of deceased’s wife held admissible.
    In a murder trial, where the claim, of self-defense was sought to be met by showing that deceased was crippled by injury to his leg at the time, proof by the state that deceased’s wife was in California at the time of the trial was admissible to account for her absence as' a witness as to her husband’s physical condition.
    3. Homicide <&wkey;300(5)— Charges as to provoking difficulty held not contradictory.
    In a murder trial, special charge asked by the state, presenting the law of provoking the difficulty, held not to contradict a charge given at accused’s request on the right of self-defense of one who, after provoking the difficulty, abandons the difficulty and is retreating.
    
      On Motion for Rehearing.
    4. Homicide <@=>187 — Evidence of deceased’s crippled leg admissible on issue of self-die-fense.
    In a murder trial, where accused claimed he shot in self-defense when deceased was coming toward him dragging an axe by the handle, evidence was admissible that a recent severe injury had crippled deceased in his leg so that he was hardly able to move about.
    5. Witnesses <&wkey;>52(7), 269(4) — Question to accused’s wife held not objectionable as not germane to examination in chief or as giving evidence against her husband.
    In a murder trial, where it appeared accused was displeased with evidence given by deceased against accused a few days previously in the justice court, and the state contended that when deceased first came to where accused was he had said to accused that it was time for him (accused) to be going down to court, and accused’s wife gave evidence for him that she saw the difficulty, but upon direct examination denied hearing anything that was said, question to her on cross-examination, “When was it that you heard him (deceased) say it was time for him (accused) to go down, or something like that?” was germane to the examination in chief, in which' she had testified that she did not hear any conversation between them; and where, in reply to the question, she denied having heard such an expression, the question could not be claimed to have elicited from her testimony against her husband.
    6. Homicide <&wkey;300(8)— Charge on provoking the difficulty held proper.
    In a murder trial, a special charge, asked by the state, presenting the law of provoking the difficulty, held properly 'given, where it was shown that after quarreling accused walked a little way from deceased, and, as deceased came by him, again cursed deceased,- and struck him with a stick, whereupon deceased seized an axe and started toward accused dragging the axe by the handle, and accused retreated a short distance and then fatally shot deceased.
    <S=For other cases see same topic and K35Y-NUMBEK in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge. ,
    Alex Laake was convicted of manslaughter, and appeals.
    Affirmed.
    J. F. Taulbee, of Georgetown, for appellant.
    Critz & Lawhon, of Taylor, J. B. Robertson, Dist. Atty., of Austin, Dan Moody, Co. Atty., of Taylor, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Upon trial for the murder of T. D. Griffin, appellant was convicted of manslaughter with a penalty of three years in the penitentiary.

There were only two eyewitnesses to the homicide, Baker, who testified for the state, and accused’s wife, who testified in his behalf. Accused did not take the stand. Deceased had been a witness a few days before the killing in a case against appellant in the justice court Appellant was displeased with the evidence given by deceased, and the homicide was the culmination of a discussion between them over this matter. The state contended that accused provoked the difficulty by insulting language towards and an assault upon deceased with a stick, while the defense attempted to show that deceased was the aggressor throughout the trouble.

As combating the defense, the state, over objection, proved that two or three days prior to the killing deceased had received a severe injury to his leg and was able to get about only with difficulty. This condition was shown with all reasonable certainty to have been known to appellant, as deceased’s 'condition was apparent on the day of the trial in justice court where appellant was present. We can see no error in the admission of this evidence. The fact that it was admitted before the facts attending the homicide were developed, under promise of the state to show later the connection and materiality thereof, vjould not be erroneous, where the promise was made good. Likewise, proof by the state that the wife of deceased was in California at the time of the trial was admissible to account for her absence as a witness regarding the physical condition of her husband.

Appellant’s wife was placed upon the stand by him and gave evidence that she saw the difficulty, going into all the details, but upon direct examination denied hearing anything that was said. Upon cross-examination, state’s counsel asked her:

“When’ was it that you heard him (Griffin) say it was time for him (appellant) to go down, or something like that?”

Objection was urged that she being appellant’s wife, and not having been asked about that on direct examination, the state should not go into it. She had testified that she did not hear any conversation between them, and we think this question was germane to the examination in chief. It was the contention of the state that, when deceased first came to where appellant was, he had said to appellant that it was time for him (appellant) to be going down to court. • Especially is no error shown where the wife, in reply to the question, denied having heard such an expression. By no kind of construction could this be distorted into her giving evidence against accused.

After the court had prepared his charge embracing murder, manslaughter, and self-defense, the state requested, and the court gave, a charge in substance that if appellant used insulting words towards or made an assault upon deceased for the purpose of provoking a difficulty with him, and that such conduct was calculated to and did so provoke it, and that appellant intended thereby to do so, and thereby brought about the necessity to kill in his own defense, that he could not justify the killing, but could only reduce the grade to manslaughter. At appellant’s request, and evidently in connection with' the state’s special charge, the court instructed the jury that although a/ppellant may have provoked the difficulty by insults or an assault,. yet, if appellant abandoned the difficulty and was retreating, his right of self-defense would not be abridged. No objection was made to the state’s special charge at the time it was given, and none would seem to be tenable. As we view the ■ evidence, it was perhaps more favorable to appellant than he was entitled to from the standpoint of the state. For the first time in the motion for new trial complaint is made of this special charge, and it is urged in the brief that the two charges (the substance of which are given above) were contradictory. We cannot so regard them. One was for the protection of the state, the other to safeguard appellant’s rights, and both appear to be pertinent and called for by the evidence.

Having found no errors in the record, the judgment must be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The criticisms of the original opinion set forth in the motion for rehearing consist largely of objections to isolated expressions in said opinion. The statement in the original opinion which is as follows: “This condition was shown with all reasonable certainty to have been known to appellant, as deceased’s condition was apparent on the day of the trial in justice court where appellant was present. We can see no error in the admission of this evidence” — is criticized. The fact that deceased was badly hurt just prior to this homicide, and that he moved about with difficulty, was material in view of the testimony of appellant’s wife showing that deceased was advancing upon appellant with an axe at the time he was shot by appellant. It could hardly be claimed that a man who was well and sound and had full command of his physical powers could be in any great danger from an axe in the hands of a man who was coming towards him dragging the axe on the ground by the handle, if the party so approaching and dragging said axe was so crippled in his leg as to hardly be able to move about. It is difficult for us to conceive how this condition of deceased could fail to be known and observed by appellant. We are unable to perceive any soundness in the objection to a question asked of the wife of appellant while a witness in his behalf it being admitted that she made no answer to said question further than to deny the fact asked about. Certainly this could not be claimed as having elicited from the wife testimony against her husband of matters not embraced in her examination in chief.

In our original opinion we held that no error was committed by the giving of a special charge asked by the state presenting the law of provoking thetdifficulty. A review of the facts confirms us in our belief that it was proper for the court to submit said issue. It is shown that after the appellant and deceased had quarreléd and appellant had cursed deceased a number of times and they had been urged by a party present to desist, appellant walked off a little way, and, as deceased came by him, appellant again cursed deceased and struck him with a stick of stove wood, whereupon deceased seized an axe lying immediately in front of him and started toward appellant, dragging the axe by the handle. Appellant retreated a short distance and drew a pistol and shot and killed deceased. The books are full of cases holding that conduct such as that of appellant in this case called for the submission of the law of provoking a difficulty.

Finding no error in the original opinion, the motion for rehearing will be overruled.  