
    SEATON v. STATE.
    (No. 10163.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.
    Rehearing Denied Dec. 22, 1926.)
    1. Homicide <@==>169,(1) — Evidence that one living with , defendant at time of homicide was ' killed by sheriff 'at still held inadmissible.
    Evidence^ in homicide prosecution, that defendant' was at time of homicide living with one later killed by sheriff of county at a still, held inadmissible.
    2. Witnesses <@=>337(6) — -Evidence that de- . fendant charged .with homicide had been indicted for aggravated assault on another man held inadmissible.
    Evidence, in prosecution for homicide, that defendant had been indicted for aggravated assault on another man, held erroneously admitted, as such assault does not involve moral turpitude.
    3. Criminal law <@=>673(5) — Failure to limit ■ evidence of other offenses to impeachment held error in homicide'prosecution.
    Failure of court to limit effect of testimony that defendant, charged With homicide, had' been indicted for assault and for liquor transactions, to impeachment, held error. •
    4. Homicide (63(2) — Admitting evidence of deceaséd’s reputation- held error, where reputation, was not attacked.
    In homicide' prosecution," admission of tes-^ timony as to general reputation of deceased as peaceable law-abiding citizen held error, -where no attack, was made upon his reputation by defendant, and no claim asserted that deceased had made threats.
    5. Homicide <@=>300(3) — In dispute as to inception of difficulty, court should instruct jury to view transaction as to self-defense from standpoint of defendant.
    , - Where dispute arose as to who began difficulty resulting in homicide, and defendant claimed self-defense, court should instruct jury that they must view transaction from standpoint of defendant as to whether he acted in own necessary self-defense.
    6. Homicide <©=>300(I) — Where deceased had pistol, and defendant claimed self-defense, court should have charged that defendant had right to repel charge.
    Where deceased had pistol and defendant claimed belief that deceased was about to draw it. at time of homicide, court should have charged jury that, if deceased was making attack on defendant with deadly weapon, law presumed intention to kill, and defendant could act accordingly.
    7.‘Criminal law <@=>448(2) — Testimony of widow that she did not think defendant was ' justified in murdering husband held incompetent as opinion'.
    Written statement of deceased’s widow, in, prosecution of widow’s brother for homicide, containing remark that' witness did not think brother was justified in murdering husband, held incompetent as opinion evidence.
    On Motion for Rehearing.
    8. Homicide <@=>300(3) — Instruction that, if deceased placed hand in shirt bosom as if to draw weapon and started for defendant, jurv might find for defendant, held not unduly limited.
    Instruction on self-defense that, if jury be-' lieved deceased placed his hand in sliirt bosom as if to draw weapon and- started toward defendant, or<that it appeared to defendant that deceased was about to attack him, jury could, find for defendant, held proper, as being not unduly limited.
    Appeal from District Court, Rains County; J. M. Melson, Judge.
    Marión Seaton was convicted of mam slaughter, and he appeals.
    Reversed and remanded.
    Jones & Jones, of Mineóla, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   DATTIMORE, J.

Conviction in district court of Rains county of manslaughter; pun-' ishment, two years in the penitentiary.

Appellant and deceased were brotherS-in-law. It is deduced from the evidence that deceased and his wife were having trouble, and that she had appealed to appellant for aid. The killing occurred at the home of deceased. Appellant had just arrived there, and had been informed by his sister, wife of deceased, that, deceased had been mistreating her. The state’s theory is that appellant came into the room with a pistol in his hand and began to-abuse deceased, and that, following resentment of such abuse on the part of deceased, appellant shot and killed him. The theory of the accused was that, after being told by his sister of the mistreatment by deceased, appellant asked for some explanation of same, and that deceased, having in his bosom a pistol, the print of which could be seen through his clothes, attacked appellant, who shot and killed him in his own necessary self-defense. There are more than fifty bills of exception in the record, the majority of which we deem unnecessary to discuss.

Oomplaint is made that, while the wife of deceased was testifying on behalf of appellant and had stated in her examination that appellant was living with one John King-Grant at the time of the homicide, the state’s attorney asked her if that was the same John King Grant who was killed by the sheriff of ■'Ríe county at a still. Appellant objected to •this question as being greatly prejudicial and •of no materiality, but the objection was overruled, and the witness answered the question ■in the affirmative. In the admission of this ■testimony the learned trial judge fell into ■error. Thereafter appellant’s attorney moved •the court to exclude from the -jury the question and answer just referred to. The learn■ed trial judge refused to grant the motion. ■In this also, he fell into error.

From another bill of exceptions, we ■ieárn that appellant was asked, while a witness, if he had not been indicted for an aggravated assault upon one T. A. White. The ■court overruled appellant’s objection, and he was forced to answer that he had. In our ■opinion, the testimony should not have' been admitted. This court has never held that an assault upon another man is such an offense as involves moral turpitude. Stewart v. State, 100 Tex. Cr. R. 566, 272 S. W. 202. The state also asked appellant, in reference to his being indicted for liquor transactions, the same being felonies, to which he answered in the affirmative.

Appellant excepted to the charge of the court for its failure to limit the effect of the irttroduction of the impeaching testimo-. my above referred to. The charge of the ■court was erroneous for its failure to so instruct the jury. A requested charge was presented asking the court to tell the jury that they could not consider such matters except for impeachment. The trial court refused to ■give the charge, and in this also fell into error.

There was no attack made upon the reputation of deceased as a peaceable, law-•abiding citizen on behalf of appellant, nor was there any defense interposed, based on ■threats made by him. In this condition of •the record, we think it was a mistake for the learned trial judge to permit the state to prove by a number of witnesses that the general reputation of deceased as a peaceable, law-abiding man was good.

Complaints were lodged against the charge of the court for its failure to instruct the jury that they must view the transaction from the standpoint of the appellant as to whether he acted in 'his own necessary self-defense. Such seems to be the plain requirement of the law in every case where there is a dispute as to who began the difficulty and the appellant claimed self-defense.

A pistol was found on the person of deceased after he was killed. Appellant claimed that he knew deceased had this pistol, and believed that he was attempting to draw it at the time he shot. The jury should have been instructed that, if deceased was making an attack upon the appellant with a deadly weapon, such as a pistol, the law presumes that he intended to kill or inflict serious bodily injury, and that appellant would have the right to, act on such presumption.

The wife of deceased,, as .above stated, testified ón behalf of the defense. It appears from the record that, shortly: after the homicide, she had made a written statement which was in the possession of the .prosecuting attorney. She was asked about this statement, and parts of same were thereafter- offered In evidence. The defense vigorously objected to the introduction of a part of said written statement in which the. witness had said, “J don’t think my brother was justified in murdering my husband.” Clearly it- whs incompetent to prove the opinion o.f. this witness who was the wife of deceased and the sister of appellant. The'statement made seems capable of much injury to the rights of appellant.

There are other errors complained of, but, .in view of the disposition deemed by us proper to make in this ease, it is not necessary to discuss them.

For the errors mentioned, the judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

MORROW, P. J.

Appellant, in his motion for rehearing, in view of another trial, seeks certain modifications of additions to the opinion heretofore rendered reversing the judgment.

Appellant insists that in paragraph 13 of the- court’s charge his. right- to defend bis life was unduly limited by the use of the following language: •

“ * * * Yet, if you believe that at the time the defendant shot and killed the1 deceased, Will Sweeden, the said Will Sweeden had placed his hand in his shirt bosom as if to draw a weapon, and started toward the defendant, or if you believe thdt it appeared to the defendant, viewed from his standpoint, from the acts or words, or both, of the deceased, at the time, that the deceased was about to attack him and that he was in danger of death or serious bodily injury at the hands of the deceased,” ■etc.

It does not occur to us that, under the evi-dence, this could' properly be regarded as a limitation. However, if upon another trial the appellant desires that specific matters be omitted and his right of self-defense be submitted in general terms, we discern no impropriety in so proceeding.

We call attention, however, to what may be a cjerical error in paragraph 13, wherein the court, following the above language, said:

“ * * * And that the defendant shot deceased 'to protect himself against such unlawful attack or threatened attack, if any, then the defendant would be guilty.”

Possibly, in the original charge, the word “not” appeared in the clause quoted so that it would read, “would be not guilty.”

With the foregoing remarks, the motion fqr rehearing is overruled. 
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