
    STRICKLAND v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Criminal Law (§ 448) — Evidence—Opinion.
    Testimony of one, after testifying in what direction, as shown by tracks, deceased’s horse was traveling when near a tree, that this would put the left side of a man, riding, towards the tree was not objectionable as an opinion; it being a fact within his knowledge.
    LEd. Note. — Por other cases, see Criminal Law, Cent. Dig. §§> 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    2. Criminal Law (§ 413) — Evidence—Self-Serving Declaration.
    Statement of defendant, a short time before the killing, to a third person that he had been told deceased had charged defendant- and his sister-in-law with improper conduct is a self-serving declaration.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    3. Criminal Law (§ 814) — Instructions — Requests — Applicability to Evidence.
    Defendant’s testimony showing that he had not armed himself and gone in search of deceased for an explanation of his remarks about defendant and his sister-in-law, but that on his way to ask explanation from another he met deceased by accident, the giving of a requested chai'ge that he had the right to seek deceased and demand an explanation of his remarks and, if he anticipated danger, to arm himself was not called for.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1S60, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. §• 814]
    4. Homicide (§ 300) — Self-Defense — INSTRUCTIONS — Provoking Difficulty.
    The qourt having given a full and unrestricted charge on the issue of self-defense, and not having limited the right of self-defense, by instructing on the issue of provoking the difficulty, it was not necessary to give a requested charge that defendant had the right to seek deceased ana demand an explanation of the remarks he had heard deceased had made in regard to hin and his sister-in-law and, if he anticipated danger, to arm himself.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.*]
    5. Criminal Law (§ 776) — Instructions — Matters in Issue — Reputation.
    Testimony of defendant that deceased had made some sighting remarks in regard to the virtue of D., and of T. that deceased had told him there were reports about the conduct of defendant land D. and had requested him to so inform defendant, with the denial by defendant that there was any ground for such reports, without any more by either side, does not put D.’s reputation in issue; it being necessary for this that there be some testimony that her reputation was either good or bad, so that there
    casion for giving defendant’s request-tions that, as he put in issue, by his the reputation for virtue and chas-the state had the right also to offer In this issue in rebuttal of defendant’s was no od ed instruct evidence, I tity of D.; evidence on evidence.
    other cases, see Criminal 1838-1845; Dec. Dig. § [Ed. Nóte. — Por Law, Cent. Dig. 776.]
    6. Criminal Law (§ 784*) — Case Depending. on Circumstantial Evidence.
    Though defendant was the only eyewitness and testified he shot deceased in self-defense, yet he by Jus testimony having admitted he did the killingj, and others having testified that he admitted tjo them that he shot deceased, it was no longer I a case depending solely on circumstantial evidence.
    ed. Note. — Por other cases, see Criminal Law, Cent] Dig. §-§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    7. Criminal Law (§ 1090) —Appeal — Review— bfECESSITY OF BILL OF EXCEPTION.
    Rulings on admissibility of evidence, complained of in motion for new trial, cannot be reviewed on appeal, in the absence of bills of exception.
    [Ed. Note. — Por other cases, see Criminal Law, Celt. Dig. §§ 2653, 2789, 2803-2822, 2825-2827 , 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    8. Criminal Law (§ 1090) — Appeal — Review— ifECESSITY OF BILLS OF EXCEPTION.
    The ipatter of alleged remarks of the district attorney, complained of in the motion for new trial, cannot be reviewed on appeal; the fact of his making them not being verified by bills of exception.
    te. — Por other cases, see Criminal [Ed. Nq__ Law, Cei.t. Dig. §§ 2653, 2789, 2803-2822, 2825-28271 " ~ " 1090.*] 2927, 2928, 2948, 3204; Dec. Dig.]
    
      9. CRIMINAL Law (§ 728) — Agreement of District Attorney — Requesting Charge.
    That the district attorney argued to the jury that the letter of deceased to defendant’s sister-in-law was not genuine but was fixed up by defendant, as to which letter defendant alone testified, though his sister-in-law was in court, was not reversible error; no special charge in regard thereto having been requested by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1091; Dee.’ Dig. § 728.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Henry Strickland was convicted of manslaughter, and appeals.
    Affirmed.
    J. Y. Lea, of Houston, J. M. Hansbro, of Coldspring, and Adams & Young, of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. 4 Am. Dig. Key^No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted for murder, and, when tried, convicted of manslaughter, from which judgment he prosecutes this appeal.

There are two bills of exceptions in the record in regard to the introduction of testimony, one to the action of the court in permitting the witness S. F. Fain to testify, after testifying in what direction the deceased’s horse was traveling when near a certain pine tree, that this would put the left side of a man, riding, towards the pine tree. This, it is claimed, is an opinion of the witness, based on a hypothetical question. The witness saw the tracks on the ground and of course could tell as a fact the direction in which the horse was traveling, and it would also be a fact within his knowledge as to which side of a man would be towards a given object on the ground, if he was riding the horse. The body of deceased is shown to have fallen on the ground some 40 steps from where the horse turned near this tree, and, under the facts of this case, the court ruled correctly in admitting the testimony.

The other bill relates to the exclusion of certain testimony. Appellant testified that Andrew Dawson had told him the day of the killing of certain derogatory remarks deceased made in regard to appellant and his sister-in-law, Miss Bertha Dawson, charging them with improper conduct. When his witness Berry Welch was on the stand, he desired to prove by Welch that he (appellant) had told Welch about the matter a short time before the killing. This would be but a self-serving declaration, made before the homicide, and the court correctly held that any testimony tending to show that appellant had been so informed would be admissible, but not what appellant said to some third person he had been told.

The appellant requested the court to instruct the jury that appellant had the right to seek deceased and demand an explanation of the remarks he had heard deceased had made in regard to him and his sister-in-law, and, if he anticipated danger, he had the right to arm himself. In some cases, under the facts in those cases, it has been held that such a charge should be given. But not under evidence similar to that adduced on this trial. Appellant does not claim that he armed himself and went in search of deceased to ask for an explanation of the remarks deceased had made. His testimony is that he went to see Berry Welch about remarks he was informed Welch made, and, when Welch denied making such remarks, that, as he had been informed by his Uncle Charlie Williamson that Welch had made such remarks, he and Welch went to see his Uncle Charlie in regard to the matter. Welch and appellant both so testify, and appellant further testified: “I was not expecting to meet Pack (deceased) there at that time, and we were within a few steps of one another when I first seen him.” In no syllable of appellant’s testimony is there a suggestion that he was on his way to see Pack to demand an explanation of him, but his whole testimony is that he went to see Welch and demanded an explanation of him, and then was on his way to have Welch and his Uncle Charlie face each other about the remarks he had heard. So, under the testimony, this charge was not called for, and there was no error in refusing it Appellant shows by his testimony, if true, that his meeting with deceased was purely accidental. However, if he had testified that he had gone to see deceased to demand an explanation, and the shooting occurred in consequence, the court did charge the jury: “The defendant had the right, under the evidence in this case, to arm himself with a pistol, if he thought himself in danger, when demanding an explanation of all persons that he believed had reflected on the character of his sister-in-law.” In the case of Williford v. State, 36 Tex. Or. R. 414, 37 S. W. 761, it was held by this court that it is only when the court limits the defendant’s right of self-defense by instructing the jury on the issue of provoking the difficulty that it is necessary to give a charge of the character requested by appellant In this case the court did not charge on provoking the difficulty but gave a full and unrestricted charge on the issue of self-defense, telling the jury: “Upon the law of self-defense you are instructed that if from the acts of the said Paschal Williamson, or from his words coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he (the defendant) was in danger of losing his life or of suffering serious bodily harm at the hands of said Paschal Williamson, then the defendant had the right to defend himself from such danger or apparent danger as it reasonably appeared to him at the time, viewed from his standpoint. And a party so unlawfully attacked is not bound to retreat in order to avoid tbe necessity of killing bis assailant. It is not necessary to tbe right of self-defense that tbe danger should in fact exist; if it reasonably appears from tbe circumstances of tbe case that danger exists, tbe person threatened with such apparent danger has tbe same right to defend against it and to tbe same extent that be would have were tbe danger real. And, to determine whether or not there was reason to believe that danger did exist, tbe appearances must be viewed from the standpoint of tbe person who acted upon them and from no other standpoint. Now, if you believe that tbe defendant shot and thereby killed Paschal Williamson as a means of defense, believing at tbe time be did so (if be did so) that be was in danger of losing bis life or of serious bodily injury at tbe bands of said Pasebal Williamson, then you will acquit tbe defendant.” Having instructed tbe jury as be did in bis main charge, there was no error in refusing this special charge.

Again, as tbe reputation of Miss Bertha Dawson was not made an issue in tbe case, it was not necessary to give tbe special charge requested by appellant that, as “tbe defendant in this case put in issue by bis evidence tbe reputation for virtue and chastity of Bertha Dawson, tbe state bad tbe right also to offer evidence on this issue in rebuttal of defendant’s evidence.” Tbe defendant offered no evidence that tbe reputation of Miss Bertha Dawson was good, and tbe state offered none that it was bad. Tbe only way this came in tbe case was that appellant said deceased bad made slighting remarks in regard to her virtue; that be beard that Welch bad also made such remarks, which Welch denied; that bis Uncle Charlie said Welch had so stated. Dr. Tinsley said that deceased bad told him that there were reports out about tbe conduct of appellant and Miss Bertha and requested him to so inform appellant Appellant denied that there were any grounds for such reports,'and so far as this record discloses there no such grounds, but this was not putting her reputation in issue, until some testimony was offered that her reputation was either good or bad, and no such testimony was offered by either side; consequently there was no occasion to give the special charge requested.

Appellant contends that as defendant testified he shot deceased in self-defense, and he being the only eyewitness, necessarily the state depended on circumstantial evidence to prove that the shooting was not done in defense of his person, such as that deceased was shot in the back, etc. This doubtless is true that the state depended wholly upon circumstantial evidence to prove that appellant was not justified in slaying the deceased, but when appellant took the stand and admitted he did the killing, and Mrs. Cornett and others testified he admitted to them he had shot the deceased, it was no longer a case depending wholly upon circumstantial evidence, and such criticism of the charge is without merit Branch’s Crim. Daw, § 203, and cases there cited.

There are several grounds in the motion complaining of the admissibility of certain -testimony; but as no bills of exception were reserved, at least none being in the record, these questions are not presented in a way we can review them.

There are several complaints in the motion for new trial in regard to the alleged remarks of the district attorney; but, as the fact that he made such remarks is not verified by a bill of exception, we are not authorized to review these matters. The only instance where a bill is reserved is the one that says, “The district attorney, in his closing argument, argued that the letter written by Paschal Williamson to Bertha Dawson was not genuine but was fixed up by defendant,” to which argument defendant objected, because there was no testimony that the letter was not genuine. Perhaps this deduction was drawn by the district attorney from the fact that appellant' alone testified in regard to the letter, and the person to whom it was addressed and who' is alleged to have received it, although in attendance on court, was not placed on the stand to prove that she did receive such a letter. Anyway, as appellant requested no special charge in regard to this matter, it would not be such error as to call for a reversal of the ease.

The judgment is affirmed.  