
    DUHIG v. STATE.
    (No. 3806.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Witnesses <&wkey;274 — Cross-Examination— Character.
    Where defendant had put his reputation as a moral man in issue and called certain witnesses to prove it, cross-examination of such witnesses asking if, in forming their opinion of defendant’s reputation, they had considered the report that he had been unduly intimate with' Mexican women, was permissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. &wkey;274.]
    2. Criminal Law <&wkey;815 — Instructions — Evidence — Character—Consideration.
    Where defendant filed an application asking for suspension of sentence, and by direct questions to his own witnesses placed in issue his reputation as a moral man, the refusal of the court to charge the jury not to consider cross-examination of such witnesses whether in forming their opinion of defendant’s general reputation they had considered the report that he was unduly intimate with Mexican women was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. <&wkey;> 815.]
    3. Homicide <&wkey;300 — Instruction—Self-Defense.
    Where defendant testified that, when he asked deceased if he wrote a certain letter, deceased said, “Tes; and many others,” dropped his bundle, and ran his hand in his pocket as if to pull a pistol, and the court charged that reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, that it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, the party under danger being in no event bound to retreat, and that, if the jury believed defendant killed, deceased when the latter was preparing to make an attack upon him which defendant had reasonable expectation would result in death or serious bodily injury, defendant was not guilty, such charge aptly stated the law applicable to the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig; <§=300.]
    4. Homicide <&wkey;122 — Justification—Adultery oe Wife.
    Where a homicide took place in the absence of defendant’s wife, who had not lived with him for some time, defendant and decedent not being on defendant’s premises, the defense that he acted to protect the sanctity of his home could not avail defendant, since one may kill another only in actual adultery with his wife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 177-181; Dee. Dig. &wkey;122.]
    5. Criminal Law <&wkey;814 — Instructions — Abstractness.
    A charge without evidence to support it is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839,1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <&wkey;>814.]
    6. Criminal Law &wkey;>829 — Trial—Instructions — Repetition.
    Special requested charges need not be given bearing on an issue as to which the court has presented the. law as applicable to the evidence in the case in its main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <5&wkey;829.]
    7. Criminal Law <&wkey;1124 — Questions Reviewable — Refusal of New Trial.
    Where the bill of exceptions complaining of the failure of the court to grant a new trial on newly discovered evidence did not include the affidavits of the new witnesses, which affidavits were not attached to the motion for new trial, and did not appear in the transcript, such bill of exceptions could not be reviewed^
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. &wkey;>1124.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Arthur Duhig was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction adjudging him guilty of manslaughter.

In defendant’s bills of exceptions Nos. 7, 8, 9, and 10 it is shown that, when defendant’s witnesses Ben S. Fisk, Jack W. Neal, Wm. Hoefegen, and L. Kaufman were on the witness stand, on cross-examination they were asked if in forming' the opinion of defendant’s general reputation they had taken into consideration the report that an illegitimate child had been bom to a Mexican woman on South Flores street on or about December 14, 1914, and that such report had been published in the newspapers, and the defendant was charged with being the father of the child, and if they had heard the report about defendant being the father of an illegitimate child by a Mexican woman who lived with defendant in the back of Dean’s store or in a corral, and that she went by the name of Mrs. Arturo Duing, and had heard that this Mexican woman received mail while living there addressed to Mrs. Arturo Duing. The record discloses, and the court in his qualification shows, that before he allowed such questions to be propounded to the witnesses, the defendant had put in issue his reputation as a moral man, and on direct examination the witnesses named had testified that they knew his general reputation as a moral man, and that it was good. After the witnesses had thus testified, the state was allowed to ask the witnesses if they had heard these reports, and if they took these reports into consideration in arriving at his general reputation as a moral man. A portion of them answered they had heard the reports, and a portion said they had not heard it. As appellant had put his reputation as a moral man in issue, and attempted to prove it was good by these witnesses, the cross-examination was permissible, and tbe court did not err in so bolding.

Appellant, when testifying as a witness, bad admitted tbat be knew tbe reports were in circulation, and tbat tbe Mexican woman bad reported to tbe authorities be was tbe father of tbe child, and be bad taken no steps to have tbe report corrected, but be testified tbe report was untrue. Neither did tbe court err in refusing to instruct tbe jury not to consider this evidence, as appellant bad filed an application asking for a suspension of sentence, and, in addition to putting his reputation as a peaceable, law-abiding citizen in issue, by direct questions to bis witnesses bad placed in issue bis reputation as a moral man.

Appellant excepted to tbe court’s charge because tbe charge on apparent danger was not full and complete, and excepted to tbe charge because tbe court had failed to charge on real danger. Tbe state’s case is tbat appellant and deceased met in tbe yard of Josephine Cavallo; tbat appellant approached deceased and they engaged in a conversation, Josephine Cavallo not understanding what was said. She says tbat after talking awhile deceased started to climb tbe fence, when appellant drew a pistol and began to shoot; that deceased got over the Eence and ran, when appellant pursued bim and shot again, and then threw tbe pistol away. S. T. Chaves testifies that deceased came running into tbe saloon of John Dolan, appellant running after bim; tbat appellant struck deceased and knocked bim down and got on bim and struck deceased again. Witness then stopped the fight; deceased dying where be lay.

Appellant and James McIntosh testified that appellant was sitting on a bench in bis yard, when deceased came into tbe yard of Josephine Cavallo; tbat appellant approached deceased, showing bim a letter, and asked bim if be bad written it; that deceased at first did not reply, but, upon tbe question being again asked, said, “Yes; and several more like it;” and as be made this reply be dropped a bundle be bad in bis arms and put bis band in bis pocket, when appellant drew bis pistol and fired four times in rapid succession, and as deceased turned to run appellant fired tbe fifth time, and after doing so threw the pistol at deceased. Appellant admits pursuing deceased into tbe saloon and striking •bim after getting in tbe saloon. Tbe letter appellant says deceased admitted writing was introduced in evidence, but is not included in tbe record before us, tbe record stating:

“A letter which has been lost or destroyed, but which was dated April 20, 1912, addressed to Mrs. Arthur Duhig, containing a number of endearing terms and references to meetings between the writer and the woman to whom it was addressed, and the narrow escapes from discovery by the husband, and signed, ‘Your second husband, F.’ ”

Tbe attending physician testifies tbat all five shots struck deceased, one in tbe throat, another just below tbat one, two in tbe arm, and one three inches below tbe right shoulder blade; tbat these wounds caused tbe death. Among other things in, bis charge, the court instructéd tbe jury:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If from the evidence you believe the defendant killed the said Frank Lawler, but further believe that at the time of so doing the deceased was preparing to make an attack on him, which from the manner and character of it caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him.”

This was aptly stating tbe law applicable to tbe evidence. Tbe defendant’s testimony was tbat, when be asked deceased if be wrote tbe letter, be said, “Yes; and many others,” dropping bis bundle, and running bis band in bis pocket. Tbe court instructed tbe jury, if appellant believed tbat deceased was preparing to make an attack on bim, be bad a right to slay deceased. Tbe exceptions to tbe charge above noted present no error, and they were tbe only exceptions reserved to tbe charge as given.

Tbe appellant requested tbe court to instruct the jury tbat under the laws of this state a person has tbe right to protect tbe sanctity of bis borne from an intruder, and tbat be may exercise all bis powers to defend tbe sanctity of bis borne. It is only when one catches another in tbe act of adultery with bis wife tbat be is justified in slaying bis adversary. As this record discloses tbat appellant’s wife was not only not present at tbe time of tbe shooting, but bad not lived with bim for some time, tbe court correctly refused tbe instruction requested; neither were they on appellant’s premises when tbe shooting occurred.

As there were no threats testified to by any one, communicated or uneommunieated, tbe court correctly refused to charge tbe jury tbe law as applicable to such state of case.

As tbe court presented tbe law of self-defense as applicable to tbe evidence in this case, there was no error in refusing tbe special charges requested on tbat issue.

Tbe bill of exceptions complaining of tbe failure of the court to grant bim a new trial on account of newly discovered evidence cannot be reviewed. Tbe alleged affidavits of Clara Ford, T. M. West, W. H. Russell, Ysebel Barientes, and Felix Barrientes are not included in tbe bill, nor are they attached to tbe motion for a new trial. Tbe affidavits (if any such were filed) do not appear at all in tbe transcript before us. Without knowing what is contained in tbe affidavits, it is impossible for us to determine wlietlier or not such evidence would be material to any issue in the case, or whether or not it would come within the rules governing newly discovered evidence..

The judgment is affirmed. 
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