
    BOND v. STATE.
    (No. 10847.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    1. Witnesses &wkey;>345(l) — Refusing to permit defendant to examine state witness as to conviction of felony 20 years before trial held not erroneous.
    In prosecution for murder, refusal to permit defendant to examine state witness relative to conviction for felony more than 20 years before trial, for which he had been pardoned, held not erroneous, in that matter was too remote.
    2. Homicide <&wkey;>!63(2)— Excluding evidence that deceased was convicted of cattle theft 20 years before homicide held not erroneous.
    In prosecution for murder, exclusion of testimony that deceased had been convicted of cattle theft 20 years before homicide held, not erroneous.
    3. Homicide <&wkey;!63(2) — Rejecting defendant’s testimony of deceased’s statements prior to homicide that he had served term in penitentiary held not erroneous.
    Rejecting testimony by defendant, in prosecution for murder, in substance that deceased had told him prior to homicide that he had served a term in penitentiary, held not erroneous.
    4. Homicide &wkey;>163(2) — Rejecting defendant’s testimony to statements by deceased to deceased’s sexual relations with women held not erroneous.
    In prosecution for murder, refusal to permit defendant to testify as to statements made to him by deceased prior to homicide relating to sexual relations with women at different places held not erroneous, in that such testimony could not have shed any legitimate light on defendant’s state of mind at time of shooting or tended to support theory of manslaughter under facts of ease.
    5. Homicide <S^163(2) — Excluding defendant’s testimony as to deceased’s statements he would rather have knife than gun in fight held not erroneous.
    In prosecution for murder, refusal to permit defendant to testify relative to deceased’s statement as to fact that he would rather have a knife than a gun in a fight, and as to having stated that, if person with whom he had trouble approached him about it, he would kill him, held not erroneous in that it was irrelevant.
    6. Witnesses <&wkey;287(3) — State’s cross-examining defendant as to securing gun at mother’s house held n'ot to authorize redirect examination that reason for stopping was apprehension and fear of deceased.
    ' Where state, in prosecution for murder, cross-examined defendant as to having got shotgun with which he killed deceased at his mother’s house after such fact had already been brought out in direct examination, the bringing out of same matter by state in cross-examination did not authorize redirect examination relative to reason for stopping at his mother’s being apprehension of danger and to protect himself from deceased.
    7. Homicide <&wkey;339 — Excluding testimony that defendant would not have hurt deceased if he had not been advancing on him held not erroneous, when already received' in different form.
    Refusal to permit defendant, in prosecution for murder, to testify that he would not have hurt deceased if he had not been advancing on him, and would not have shot him if he had stopped, held not erroneous, when same testimony in slightly different dress was already before jury, by reason of testimony that he shot deceased while he was advancing on him, and under fear that he was going to hurt him.
    8. Criminal law &wkey;>l 169(5) — Withdrawing testimony of deceased’s wife that she ha’d not advised defendant’s wife to leave home cured error of admission, if any.
    In prosecution for murder, testimony by wife of deceased that she did not ask defendant’s wife or advise her to leave home, as claimed by defendant, held not of such weight that court’s withdrawal thereof after its admission did not cure error, if any.
    9. Criminal law &wkey;HI7l(I) — State’s attorney’s statement, though improperly referring to former trial, held not to require reversal.
    Statement of state’s attorney, though improperly referring to his opinion based on former trial, held not to require reversal.
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Claud Bond was convicted of murder, and he appeals.
    Affirmed.
    Reasonover & Reasonover, of Denison, and, Freeman, McReynolds & Hay, of Sherman, for appellant.
    Roy M. Finley, Co. Atty., and Sam D. Wolfe, Asst. Co. Atty., both of Sherman, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment, 20 years in the penitentiary.

Deceased, his wife, and three children were picking cotton on the farm of one Finley on the 17th day of November, 1925. Deceased was weighing a sack of cotton beside a wagon. The others were at the end of nearby rows of cotton. Finley was tramping cotton in said wagon, which stood in the turnrow, its tongue north. Appellant, in a car headed south, drove up, stopped the car a short way from the end of the wagon tongue, left the engine running, got out, called to deceased to come to him twice, then walked part of the way down, meeting deceased, and handed him a paper, telling him to read same, and have his women folks read it; that he (Clay-brook) had torn up (or ruined) his home.. Three witnesses testified that in conjunction with this he also said he was going to kill deceased. All the eyewitnesses affirm that, after handing to deceased the paper, appel■lant backed to bis car, and got a shotgun out ■of same. The shooting was three or four minutes after appellant reached the scene. All the eyewitnesses save appellant testified that at no time after receiving the paper did ■deceased advance toward appellant. The distance between appellant and deceased when the fatal shot was fired was estimated by the witnesses from 15 to 20 feet. Appellant made no claim tha.t it was less. He expressly declined to say how far apart they were at the time. Appellant said he shot because he was afraid of deceased, and that the latter was advancing upon him, and that he had repeatedly told deceased not to come any closer. Finley, apparently a disinterested witness, said that appellant told deceased not to advance upon him, and that the latter did not •do so. All parties agree that, when shot, deceased had his left hand up, gesturing with it, and it seems beyond controversy that his right hand was upon his hip. The position ■of the right hand was described by a witness who saw it as being against the hip with the palm out. Appellant said just before he shot deceased the latter had thrown his right hand around toward his hip pocket.

There are sixteen bills of exception. It was not error for the court to refuse to give appellant the right to ask state witness Finley if he had not been convicted of a felony and served a term in the penitentiary. It was shown without controversy that Finley had been pardoned and his rights as a citizen restored. The conviction was more than 20 years before this trial. The matter was too remote.

The relevance of the rejected testimony of the wife of deceased to the effect that, at the time of the killing, she and her family were going to move to the Canadian river, does not appear from the bill of exceptions or otherwise. Appellant testified that deceased had told him they were going up near Gaines-ville and beyond, and ultimately in Oklahoma, at the time they left, some three weeks prior to the homicide.

Proof that deceased had been convicted of cattle theft in Oklahoma some 20 years before the homicide seems entirely aside from any issue in this case. Nor do we find any error in the rejection of the testimony by appellant, in substance, that deceased had told him prior to the homicide that he had served a term in the penitentiary in Oklahoma. These matters are complained of in bills of exception Nos. 3 and 7.

Bill of exceptions No. 4 complains of the refusal to let appellant testify to a number of statements which he said had been made to him by deceased, at unstated times before the killing, relating to sexual relations of deceased to women in Dallas, Gainesville, and Oklahoma. It is stated in the bill that this was offered as shedding light on appellant’s state of mind at the time of the shooting and as supporting the theory of manslaughter. It appears without controversy that these two families had lived neighbors during 1925 up to a few weeks before the killing. Appellant swore that they had been friends, and that there was no quarrel of any kind between them. He does not undertake to state any circumstance, act, or word of deceased upon which could be based any belief or thought of evil intent on the part of deceased toward the wife of appellant, unless same appears in the writing which he handed to deceased just before he killed him. This writing is as follows:

“Nov. 16, 1925.

“This is to certify that Claybrooks tried to get me to leave with them when they left here — Mr. and Mrs. Olaybrook begged me to leave home time and time again. They said I wouldn’t have to work if I would go with them, and I could stay with them as long as I wanted to stáy. They said they wasn’t afraid of what I would do my part. They told me to hide my suit case behind that knoll or hill on their place. And I could be out on the road and ask them for a ride. Mrs. .Olaybrook give me to understand not to take Glenn (my baby) with me. Even the girls would beg me to go every time they saw me. They said if I would leave and go somewhere else, if I wouldn’t go with them and stay away until they could get that place we were living on — I could come back and live with them when things were settled and they got moved where we were living. They kept telling me stuff that Olaud said about me to them. Tried their best by telling me stuff to get me to leave also I can say they caused more trouble in our family than anybody that I know of by telling me stuff and begging me to leave home. I am ready to swear to all I’ve written anywhere or any place. Mrs. Ella Bond.”

We find nothing in this document which could cause appellant to believe that deceased had used insulting language to appellant’s wife, or been guilty of insulting conduct toward her. According to appellant’s contention, his wife had acted irrationally at times for six or seven years before the homicide. She had complained often of his mistreatment of her; had filed suit against him for divorce on the ground of cruel treatment; had many times accused him of misconduct with other women; would take her suit case and leave home, one time for a week; had told people that he had beaten her black and blue. These and many other things which were testified to by appellant as evincing unsoundness of mind on the part of his wife were stated by him to be accusations having no foundation in fact.' Appellant did not introduce any of his four children or any other person to establish that such accusations were groundless. All these things practically had taken place in the life of appellant and his wife before deceased ever met either of them, and, of course, deceased could not be held responsible therefor. We are unable to see how the statements of deceased in regard to his relations with other women, if admitted in evidence, could have shed any legitimate light on appellant’s state of mind at the time of the shooting, or could have tended to support the theory of manslaughter, under the facts of this case.

Bill of exceptions No. 6 sets out that appellant offered to testify that deceased had told him he had rather have a knife any time than a gun in a fight, and that deceased showed him his knife, which was what was called a stock knife. Bill of exceptions No. 6 sets out that appellant offered to testify that deceased had told him of a row he had with one Bell, of which deceased had said that, if Bell had said anything more, he would have cut Bell, and that thereupon appellant said to deceased, “Bell is an officer, and might shoot you,” to which deceased replied that he would get him with his knife, and that he would rather have a knife than a gun any time. Bill of exceptions No. 8 sets out that appellant offered to testify that the deceased had told him that he had some trouble with a Mr. Hull; and that, if Hull had said anything to him about it, or approached him about it, he would have killed the d-n s-n of a b-h. Under the nncontroverted testimony in this case we fail to see the relevance of the matter set out in either of these bills of exception. Five eyewitnesses to the killing testified that at no time after the paper was handed to deceased by appellant, and the latter went and got his gun, did deceased approach or come any closer to appellant. These same witnesses affirm that at no time after appellant got his gun was deceased any nearer to the latter than 15 feet; the distance being estimated by some of the witnesses from 18 to 20 feet. Appellant did not claim in his testimony that deceased drew any knife on him or had any knife in his hand, or that he was nearer than the distance fixed by the other witnesses, or that deceased made any threatening gestures, save that, as appellant claimed, he threw his hand behind him. Appellant, after calling, deceased to come and get the paper, and delivering it to him, as testified to by Mr. Finley, shuffled back to his ear in kind of a trot. He secured from the car a pump shotgun loaded with eight shells, and shot deceased with No. 2 shot while the latter was 15 feet away, and making no demonstration or evincing no intention to rush upon appellant or attack him with a knife other than as stated. Finley testified that, when appellant got his gun, he stood there a few seconds, he and deceased talking, he accusing deceased of something, and deceased denying it; that, when appellant handed deceased the paper, he said, “Don’t you advance on me.” They were then close together, and at this time, when appellant said deceased had torn up his home, the latter replied that he had done nothing of the kind. Mr. Finley said that appellant shot and killed deceased within three or four minutes after he arrived. We are of opinion that neither of said bills of exception shows error. It is stated in bill No. 9 that on cross-examination of appellant the state proved by him that on the morning of the homicide he went by his mother’s home, and there got the gun used by him in the killing. It is further stated in said bill that, while testifying in • his own behalf, he was asked by his counsel why he went to his mother’s home on said occasion. It is further stated that objection to this question was sustained,, which action is assigned as error. Looking to the record, we observe that in appellant’s direct examination in chief he affirmed that he got this shotgun at his mother’s house. The fact that he repeated the same statement in his cross-examination by the state would not put such statement in the attitude of being a discrediting or discriminating fact brought out by the opposite party, which appellant would have the right to explain because so brought out. The things set up in the bill as being the explanation he would have made if permitted to answer the question would not have been admissible as original testimony. What we have just said applies in part to bill of exceptions No. 10, wherein it appears that the state brought out on its cross-examination of appellant that he got the gun, etc., at his mother’s on the day of the homicide; that his purpose was to protect himself. It is stated in the bill that his counsel then asked him, “Was there anything in your mind any apprehension of danger from Mr. Claybrook?” Upon objection it appears that the trial court told the appellant he might answer the question “Yes” or “No,” and that he answered same “Yes.” His counsel then asked him to state what the apprehension was and the facts on which it was based. It appears from the bill that objection to this was sustained, except the court permitted him to state that his wife told him that morning that he would have to watch Claybrook, Or that he would be killed. It is stated that, if permitted, appellant would have testified that his apprehension was based on statements made to him by deceased, which we have held incompetent in passing upon bills of exception Nos. 5 and 6. We note that appellant testified in his direct examination that he got the gun at his mother’s, and that he got it to defend himself with if he had to, and that there was in his mind at the time apprehension of danger from deceased. This was his own voluntary explanation of his reason for getting the gun. We are unable to perceive why the bringing out of the same matter by the state in cross-examination would furnish appellant any ground for elaborating his apprehension and in bringing in the matters held objectionable by the court as set out in said bills of exception Nos. 5 and 6.

The matters set out in bill of exceptions No. 11 were testified to by appellant in the main, and what of such matter was not so testified to was clearly inadmissible.

Appellant swore that deceased was advancing on him when he shot, and that he shot because deceased was advancing on him, and he feared he was,going to hurt him. This being in testimony, we see nothing in the matter complained of in bill of exceptions No. 12 which sets out that he desired to testify that he would not have hurt deceased if he had not been advancing on him, and would not have shot deceased if he had stopped when he told him to stop. This seems but the same testimony in slightly different dress from that already before the jury.

Bills of exceptions Nos. 13 and 17 renew complaint in a different form and from a different angle of the rejection of testimony set out in bill of exceptions No. 4, and which has already been passed upon in this opinion.

Bill No. 14 sets out that in its rebuttal the state was allowed to recall the wife of deceased, and that she testified that at no time did she ask appellant’s wife, or advise her, to leave home; nor did she seek to induce her in any way to leave there or to leave with them; that she did not tell Mrs. Bond that she was a fool for staying there and not leaving. It appears this was admitted over objection, but afterward the court instructed the jury that the testimony of said witness to the effect that she had not sought to induce Mrs. Bond to leave home was withdrawn from their consideration. We do not regard the matter as having such weight as that the court’s withdrawal of same would not cure the error, if any, of its admission. Appellant made no claim on this trial that he shot deceased because of anything said by the wife of the latter to Mrs. Bond, or that what she said, if anything, in anywise affected or influenced him. Mrs. Bond was not a witness in the case. No one controverted the fact that she did write the document referred to which was carried by appellant and delivered to deceased on the occasion of the homicide.

Bill of exceptions No. 15 sets out argument of the state’s attorney, which was objected to, and which the learned trial judge refused to instruct the jury not to consider. It is stated in the bill that the substance of the argument is as follows:

“I hope you will not suspend sentence and make a travesty of justice, and turn a murderer loose. In two trials of this case I have formed an opinion that the defendant is a murderer.”

From other parts of the record it is apparent that the jury were informed that there had been a former trial of this ease. Various witnesses refer to their testimony on such former trial. It would hardly be contended that the state’s attorney would be precluded from giving an opinion of the ease on trial, and from expressing such opinion. In Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534, a death penalty case, the statement of the state’s attorney that he believed the accused guilty, and that he ought to be hung, was held improper, though not calling for a reversal. No statement appeared in said argument in that case that such belief was formed upon facts before the jury. In Boxley v. State, 100 Tex. Cr. R. 334, 273 S. W. 589, a statement in argument that the accused was 'guilty of a cold-blooded assassination was upheld. See Price v. State, 87 Tex. Cr. R. 163, 220 S. W. 89. We are of opinion that, in so far as the statement of the attorney in this case referred to his opinion in any wise based on a former trial, it was improper; but it was evident that the same witnesses testified on the other trial, and, there being no discussion of the facts in evidence on that trial causing the statement made by the state’s attorney, we would not regard the error as of such gravity under the facts in this ease as to call for a reversal.

Finding no error in the record, the judgment will be affirmed. 
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