
    RAY v. STATE.
    (No. 4311.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Criminal Law <@=3451(3) — Evidence—Conclusion of Witness — Admissibility.
    A witness may testify, in a prosecution fot murder, that another was mad, from his tone of voice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1041; Dec. Dig. <§==>451(3).]
    2. Cbihinal Law <©=>1091(4) — Appeal—Bill op Exceptions — Sufficiency.
    A bill, showing that accused objected when the state asked one of its witnesses to state if he heard accused say anything as to deceased, and the witness answered that he did not know whether he referred to deceased, but that he said if he did not get him to-night, he would get him to-morrow, that being the substance of the whole of the bill, except the objections that such evidence failed to show that accused was talking of deceased and it was prejudicial to his rights, is insufficient to present a question for review.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <@=»1091(4).]
    3. Homicide <©=>163(2) — Evidence—Admissibility.
    In a prosecution for murder, it was proper to exclude questions whether deceased did not inquire where he could get whisky, and if he did not drink quite a lot on the evening of the murder.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. <©=>163(2).]
    4. Homicide <©=>163(2) — Disposition of Deceased — Evidence—Remoteness.
    Though witnesses stated that they got' acquainted with deceased 15 or 20 years before, but did not state what his reputation was at that time, their evidence was not inadmissible as too remote.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. <@=>163(2).]
    5. Criminal Law <@=>829(5) — Instructions— Provoking Difficulty — Instruction Already Given.
    Where the court submitted self-defense fully and completely, but did not limit the defense by reference to provoking difficulty, and there was no objection to his charge, it was not error to refuse a special charge that the fact that accused carried his razor with him to deceased’s wagon did not abridge his right of self-defense.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829(5).]
    6. Criminal Law <@=>1144(18) — Appeal and Error — Presumptions.
    Where the record shows that on motion for new trial the court heard evidence as to newly discovered testimony, but does not show what the evidence was, the court, on appeal, must presume that he was clearly authorized to refuse new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901. 3036; Dec. Dig. <©=> 1144(18).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Tom Ray was convicted of murder, and he appeals.
    Affirmed.
    John A. Cook and T. C. Hutchings, both of ML Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.

Appellant and deceased lived near neighbors and had been friendly until just a few days before appellant killed deceased. The road from town to deceased’s passed by appellant’s. In going from town home deceased had to pass along this road. The Sanders were renters of deceased, and also lived near. A few days before the killing a horse of the Sanders had died, and they and appellant buried it in a branch, on which deceased had a sorghum mill, and it was necessary for him to use the water from this branch in connection with making sorghum The dead horse greatly polluted the water. Deceased instituted a criminal prosecution against the Sanders for burying said horse where they did. They told appellant that deceased had also prosecuted him for the same thing. This greatly incensed appellant and made him mad at deceased. Appellant went to town with the Sanders on Saturday evening before the killing that night. The deceased and his two grown sons were in town also that evening. Appellant learned deceased was in town, and, according to the state’s testimony, hunted him up and had a talk with Mm, wherein he accused deceased of prosecuting him about said horse, which deceased denied. As a matter of fact, deceased had not prosecuted him, but had instituted criminal proceedings against the Sanders. At this time appellant cursed deceased, according to the state’s witnesses, and said to him: “You G-d-son of a b-. I will see you to-night” — and, it seems, had his open knife in his hand at the time. Thereupon one of the Sanders who was with him told him not to do that, and he desisted. Another state’s witness, in substance, testified that appellant on this occasion said: “If I don’t get him to-night or this evening, I will get him to-morrow.” Soon afterwards, and before night, appellant went home. Deceased and his two sons did not leave town for home until night. The state’s witnesses testified that as deceased and they were passing appellant’s house going home that night, appellant hailed deceased, had him to stop, stating he wanted to see him. He got his razor out of his trunk at the time, and took it with him when he went down to see deceased. That appellant again accused deceased of prosecuting him about said horse, which deceased denied; and that, without deceased doing anything, appellant put one foot up on the hub of the wagon, got up, caught deceased with his left hand, and with his right cut deceased’s throat from ear to ear with the razor, from which deceased died in a few minutes. Deceased’s wagon tlien went on Rome. Appellant returned to Ris Rouse, waited a few minutes, went to tRe Sanders’, and in going tRrew away Ris razor. He Rad tRe Sanders to telepRone for tRe sReriff to come and get Rim. According to tRe appellant and Ris wife and motRer’s testimony, deceased called appellant out to Ris wagon, stating tRat Re wanted to see Rim, and appellant acted and cut deceased’s tRroat in self-defense. His self-defense was submitted fully in tRe court’s charge to tRe jury, and, with ample evidence to sustain the finding, the jury found against Rim on this issue.

Appellant has several bills of exceptions to the admission and exclusion of very brief portions of testimony. It is unnecessary to take them up separately. A witness may testify that another was mad, from his tone of voice. 1 Branch’s An. P. O. pp. 73, 74.

Appellant Ras a Rill showing Re objected when the state asked one of its witnesses to state to the jury: “If you heard Rim say anything in reference to Mr. Daniels, tell what it was.” To which question and answer Re objected, and the witness answered:

“Well, sir, I don’t know if it was Mr. Daniels he was talking about or not; but I heard him say that if he didn’t get him to-night or this evening, he would get him to-morrow.”

This is, in substance, the whole of the bill, except Ris objections, which were because same did not show that the defendant was talking about deceased, and it was prejudicial to Ris rights and inadmissible. TRe state objects to the consideration of this bill because it is wholly insufficient under the long and well-established rules announced and adhered to by this court to authorize its review. TRe state’s contention is correct. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 68 Tex. Cr. R. 528, 151 S. W. 1056; Best v. State, 72 Tex. Cr. R. 201, 164 S. W. 996; 1 Branch’s An. P. C. p. 134, where Re collates a very large number of cases. All the circumstances and testimony satisfactorily show that appellant’s said statement Rad reference to deceased and to no one else. Howe v. State, 177 S. W. 498, and Hiles v. State, 73 Tex. Cr. R. 21, 163 S. W. 717, and cases therein cited.

Appellant has several other very meager and insufficient bills, wherein Re complains that the court sustained the state’s objection when Re asked several witnesses if deceased, on the evening when Re was in town, did not inquire of them where Re could get some whisky, and if deceased did not drink quite a lot. TRe court’s action was correct in all these matters.

Appellant introduced several witnesses, who testified to deceased’s bad reputation as a violent, quarrelsome, and dangerous man, going back in that respect, it seems, some 15 or 16 years. The state on this point introduced among others, two witnesses. Appellant’s bills complain of the testimony of these two witnesses. TRe bill shows, however, that in answer to questions, they stated that they got acquainted with him 15 to 20 or more years before the killing, but neither bill shows that either of said witnesses testified what deceased’s reputation was at that time. Hence they present no error.

The court, as stated, submitted appellant’s claimed self-defense in a full and complete charge, to which there was no objection, and without in any way charging on provoking the difficulty, or otherwise limiting his said defense. The court, therefore, did not err in refusing to give his special charge, to the effect that he had a right to got his razor and carry it with him to deceased’s wagon at the time he killed deceased, and that so doing in no way abridged his right of self-defense. Williford v. State, 38 Tex. Cr. R. 396; 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr.. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State, 177 S. W. 1176; and the cases of Crippen v. State, 189 S. W. 496, and Marshall v. State, 189 S. W. 499, recently decided, but not yet officially reported. The argument of the district attorney was strictly based upon the testimony of the case, and he had the right to base his argument thereon.

Appellant in his motion for new trial alleged some newly discovered testimony. The record shows that when the court heard the motion for new trial he heard evidence on this point. What that evidence was is in no way shown in this record. Hence, under all the authorities, this court must presume that the judge was clearly authorized to refuse a new trial on that ground. See the cases collated in Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726, and 1 Branch’s An. P. C. p. 307.

There is no reversible error presented in this case, and the judgment is affirmed. 
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