
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 23, 1911.)
    1 Jurt (§ 70) — Summoning — Special Ve-nire.
    Where the court ordered a special venire of 200 men, but when the case was called only 07 responded, of whom all were excused by the court, or by consent, except 40, the action of the court in refusing a complete venire out of which to select the jury and in requiring the ■defendant to proceed with the qualification and selection of the jury, and in summoning tales-men after that part of the venire present was exhausted, was not error, in the absence of a motion to quash the venire, or of showing that defendant suffered any injury.
    [Ed. Note. — -Eor other eases, see Jury, Cent. Big. §§ 310-330; Dec. Dig. § 70.]
    2. Criminal Law (§ 822) — Instruction.
    Where the charge as a whole, when applying the law to the facts, presents fully what it takes to constitute murder in the first degree, the omission of the word “express” before the word “malice,” in the definition of murder in the first degree, is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995; Dec. Dig. § 822.]
    3. Criminal Law (§ 1111) — Appeal — Record-Matters Presented for Review.
    That a portion of the printed charge in a prosecution for homicide had a pencil through it cannot be reviewed on appeal, where the charge as it appears in the record has no such erasure, and the words said to have 'been erased do not appear in the charge.
    [Ed. Note. — For other cases, Law, Cent Dig. §§ 2894-2896; 1111.] see Criminal Dec. Dig. §
    4. Criminal Law (§ 823) — Trial—Instruc- ■ tions — Construction a? a Whole.
    A charge on manslaughter, that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation, presenis no error, where the court later on instructed the jury, in determining the adequacy of provocation, to consider all the facts and circumstances in evidence, in passing on the condition of defendant’s mind, and if, by. reason thereof, his mind at the time of the killing was incapable of cool reflection, etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995; Dec. Dig. § 823.]
    5. Homicide (§ 300) — Instruction — Self-Defense.
    In a prosecution for homicide, an instruction that, if defendant fired on deceased in self-defense, but the deceased abandoned the difficulty and defendant had no reasonable apprehension of danger from deceased, defendant would not be justified in pursuing or firing other shots was error, where it failed to state that, if defendant under these conditions was, by the previous conduct of deceased, rendered incapable of cool reflection, ho would not be guilty of any higher grade of offense than manslaughter.
    [Ed. Note, — For other cases, see Homicide, Cent. Dig. §§ 6LL632; Dec. Dig. § 300.]
    6. Homicide (§ 300) — Instruction — Self-Defense — ‘ ‘Attack. ’ ’
    Where the evidence was that defendant shot deceased upon his throwing his hand to his hip pocket, an instruction as to defendant’s right of self-defense if the deceased had made an attack was insufficient, since, though the act of deceased may have been an attack in law, as ordinarily understood the word ‘attack” means more than a threatening gesture, and the law should have been applied to the evidence and the jury instructed that, if by the act of deceased it reasonably appeared to the defendant that his life was in danger, he had a right to shoot.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 6TL-632; Dec. Dig. § 300.
    
    For other definitions, see Words and Phrases, vol. 1, p. 620.]
    7. Criminal Law (§ 713)— Trial —Argument of Counsel.
    It is improper for counsel in argument to state what the evidence would have been, had the court permitted the introduction of certain testimony, or to say that “you had as well burn up the law books and tear down the courthouses and let them all go free,” if a certain rule of law be followed.
    [Ed. Note. — For other cases, see Criminal Law, Dec. 'Dig. § 713.]
    8. Witnesses (§ 269) — Cross-Examination —Limitation to Subject of Direct Examination.
    In a prosecution for homicide, the cross-examination of defendant’s wife should be limited to those matters about which she testified in her direct examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.]
    
      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    J. W. Johnson was convicted of murder in the first degree, and appeals.
    Reversed and remanded.
    M. M. Brooks, for appellant.
    C. E. .Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted charged with the murder of Levi McGuffey. Upon a trial he was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

It appears that appellant purchased some furniture from J. D. Smith on the installment plan. Deceased was a collector for Smith, and upon appellant getting behind in his payments McGuffey went to his restaurant (which was also his residence) in an effort to collect the amount due, and, upon appellant telling him he was unable to pay that day, threatened to take the furniture under the terms stated in the mortgage. Appellant relates the events as follows: “It was about the 13th of April, to the best of my knowledge, when the deceased came out and ■ the first trouble occurred. He came in the restaurant at that time and asked me for a payment on this account, and I told him that I was not prepared to make a payment, and asked him to wait until Saturday. This was, I think, to the best of my recollection, some time either on Monday or Tuesday. I asked him if he would wait until Saturday, and I would make him a payment then, lie said that he would not wait; I insisted, and treated him with all the courtesy I could, and told him that if he could his leniency would be appreciated. 1-Ie said that he would not. I told Mr. McGuffey that I thought he was rather hard with me; that I was doing the very best I could to try to get along, and I says, T wish you would wait until Saturday.’ He says, T will not wait.’ He says, T want the goods or the money.’ So I says, ‘Mr. McGuffey, I don’t care to lose what I have paid on this account, nor I don’t want you to come in and take the stuff away from me.’ I says, T will take this matter up with Mr. Smith.’ He said, ‘Mr. Smith hasn’t got a damn thing to do with it.’ ‘Well,’ I says, ‘Mr. McGuffey; I will tell you; if you want the furniture, you will have to get it through process of law.’ I says, ‘If the' law gives it to you, you can have it.’ He says, ‘To hell with the law.’ I-Ie says, T have got possession,’ and he says, T am going to hold it.’ I says, ‘No, Mr. McGuffey, I have paid rent on this place, and I don’t care to have any trouble with you, and that is the only way you will get it — through process of law.’ He says, T will get the furniture, or I will get you,’ he says, ‘that is sure.’ ‘Why,’ he says, ‘what are you? You look like 15 cents worth of dog meat to me.’ He says, ‘You are a God damn, mother-fucking son of a bitch.’ I says to Mr. McGuffey, I says, ‘Mr. McGuffey, I don’t like for you to talk that way here in the presence of my wife.’ He says, ‘What is that, that damned whore?’ I started from behind the counter and told him he must get out, and then I started around the end of the counter, and he stepped back and threw his hand on his hip pocket, and says, ‘You stop, or I will kill you.’ Well, I stopped. He walked to the screen door, looking hack at me, inclined to go sideways to the door. He pushes this screen door open and walks out, and he says, ‘You damned bastard, I will get you yet.’ That was the last time I saw Mr. McGuffey until he came hack on the 26th of April, the day this trouble came up.” When deceased left, appellant telephoned Mr. Smith and requested that deceased be not again sent to his restaurant to collect; he alleging and stating that deceased’s conduct was insulting, and if they would not again send McGuffey he would pay at the store. The next week they did make a partial payment at the store. That appellant did telephone to the store about McGuffey’s conduct is borne out by the state’s witnesses; also that it was agreed, if he would pay at the store, deceased would not again be sent down there, and that a payment was made during the next week. This, however, still left appellant in arrears, and about a week or 10 days after appellant had made the partial, payment McGuffey again went to appellant’s place of business, and lost his life. As to what occurred in the restaurant on the morning of the killing, we have nothing but the statement of appellant and his wife, and the dying declaration of deceased that appellant had killed him for nothing.

The state’s witnesses say that their attention was attracted by the first shot, and when they looked deceased was coming out of the door, and in a short space of time appellant appeared at the door, one saying he stood in the door, two saying he advanced out on the sidewalk; all three testifying that he fired three shots as deceased was crossing the street. Deceased was hit twice, once in the left side, and once in the back, near the spinal column; the last being the fatal shot. State’s witnesses say that deceased had no weapon of any character, and after he came within their vision he did. nothing showing an intention to injure appellant. One of the state’s witnesses says appellant appeared excited, while the other-says he appeared cool and collected.

The appellant testifies, and is corroborated in the main by his wife, that his wife was sick in the room adjoining the restaurant. That he (appellant) went to the rear on some errand, and when he returned deceased was standing at the foot of the bed on-which his wife lay, when he asked him what he was doing there, and deceased replied:“It was none of my damned business. Then I asked him to get out of my house, and. lie stepped back into tbe lunchroom, where the lunch counter was, and X walked to the door and asked him to get out. He threw his hand to his hip pocket, and said, ‘You son of a bitch, I will make you get out,’ and then is when the shooting commenced. My pistol was lying on the machine just inside of the bedroom, where the door goes in from the lunch counter. When he spoke to me the way he did, and said, ‘I will make you get out, you son of a bitch,’ and made for his pistol, I shot him. When I fired the first shot, he turned with his face facing the counter, with his hand still on his pocket. That would put his left side, or his back, next to me. I continued to shoot at him as long as I saw him in that position, while he was on the inside of the house. He still had his hand on his hip pocket when I shot the other shots. Then he walked toward the screen door, the exit of this lunchroom — the front door; then he stopped and turned with his face back to this door. I thought he was going to still continue to shoot me, and I shot again; that was the last shot I fired. He went out the screen door, or backed out the screen door, and walked out on the sidewalk. I don’t have any recollection of shooting any other shots; I was greatly excited right at that time.”

The dying declaration of deceased as introduced in evidence, is as follows: “ ‘The man shot me for nothing; he told me not to come back any more, and I went there this morning. He told me to get out of his house, and I told him that I would.’ He said, ‘Johnson picked up a pistol as I went out, and as I turned the screen door he shot me in the side. And if you will look you will find a hole in the screen; and as I turned and ran up the street he shot me in the back, and that is what is killing me.’ ” This presents the theories of the state and defendant and issues to be submitted to the jury.

The first contention of appellant is that it appeared “the court had ordered a venire of 200 men, which was a special venire, duly selected and drawn out of the jury wheel, as provided by law, for Dallas county and other counties in Texas. When the ease was called for trial, and after the state and the defendant had announced ready, the special venire was thereupon called and only 67 of the 200 special veniremen responded; of this number all were excused by the court, or by consent, except 40; and thereupon the defendant demanded' a complete venire out of which to select his jury before being required to proceed with the qualification and selection of his said jury in this case. Said demand was overruled by the court, and the defendant was forced to proceed and exhaust that part of the venire.” After this list was exhausted, the court ordered the jury to summon talesmen to complete the jury. No copy of the venire or the return of the sheriff is included in or attached to the bill of exception, and we are left to surmise, if we so desire, a reason why the others were not summoned or were not in attendance. No motion was made to quash, and the bill does not state any injury was suffered by reason of being thus compelled to select a jury. In the absence of a motion to quash, stating grounds sufficient, and it not being shown that appellant suffered any injury, we hold there was no error.

The most serious contention is the complaint of the charge of the court in several particulars. The error assigned, that the court erred in omitting the word “express” before the word “malice” in the definition of murder in the first degree, is not well taken. The definition as a whole, and especially when applying1 the law to the facts, presents fully what it takes to constitute murder in the first degree; and that portion of the motion which complains that a portion of the printed charge had a pencil through a portion of it cannot be reviewed, as the charge before us has no such erasures, and the words said to have been erased do not appear in the charge copied in the record.

That portion of the motion complaining of the charge on manslaughter, wherein it is said, “The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation,” presents no error, as the court later on in the definition instructed the jury that, “in determining the adequacy of the provocation, to consider in connection therewith all the facts and circumstances in evidence in passing on the condition of defendant’s mind, and if, by reason thereof, defendant’s mind at the time of the killing was incapable of cool reflection,” etc.

However, that portion of the charge of the court presenting self-defense and abandonment of the difficulty is, we think, subject to the criticisms contained in the motion. The court instructed the jury: “If, however, you find that the defendant fired upon said Levi McGuffy with a pistol, and that the first shot or shots were fired by the defendant in his own self-defense, as self-defense is herein defined to you, but you further find that the said Levi MeGuffey abandoned the difficulty, if there was any, and retreated with no intention of renewing said difficulty, and you further find that there was no actual danger to the defendant at the time such other shots were fired, and that the defendant, viewing the facts from his standpoint, had no reasonable apprehension of danger from the deceased at the time, or that the deceased intended to renew the attack upon him, if any had been made, then the defendant would not be justified in pursuing or firing such other shots after the necessity to fire in self-defense had ceased.”

Appellant’s criticism of this portion of the. ■charge is that, if a charge on abandonment of the difficulty was called for, it shoiild have gone further and instructed the jury that, if defendant under those conditions was, by the previous conduct of deceased, rendered incapable of cool reflection, he would not be guilty of any higher grade of •offense than manslaughter. This court held, in the case of St. Clair v. State, 49 Tex. Cr. R. 483, 92 S. W. 1096: “The issue of abandonment of the difficulty by deceased was also in the case, and charged upon by the court. This portion of the charge informed the jury that, if deceased abandoned the •difficulty and appellant so understood it, and he then fired upon and killed deceased, he could not plead justification. This is the substance of the charge on the abandonment of the difficulty. This is not sufficient. If appellant was acting on the defensive, and while engaged in the difficulty, deceased abandoned the difficulty, and appellant so understood it, and he then shot and killed ■deceased, he would not be justified. But he might not be guilty of a higher offense than manslaughter. The court did not instruct the jury what would be the law applicable to appellant’s case under this condition of things. In our opinion, if the jury should find that defendant was acting on the defensive, and the deceased abandoned the difficulty, and as he was leaving, if the jury .should find he was, appellant then shot him, knowing or realizing that deceased had abandoned the difficulty, his offense would not be higher than manslaughter. As the charge is given, it left the jury to ascertain for them-■selvés of what offense appellant would be guilty, if he shot after deceased abandoned the difficulty. They gave appellant murder in the second degree. If the law had been charged, it might not have been higher than manslaughter.”

Appellant also complains that the court erred in presenting self-defense: “If from the evidence you believe the defendant killed the said Levi MeGuffey, but further believe 'that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition •of the deceased, 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.” Appellant’s contention is that there is no evidence in regard to “character and disposition of the deceased, or defendant’s knowledge of such facts,” and that defendant did not claim that deceased made an “attack.” The evidence is that, when defendant instructed deceased to “get out of there,” deceased stepped in the restaurant part of the builamg, and replied, “You son of a bitch, I will make you get out,” and threw his hand to his hip pocket. This in law may be an attack, but as ordinarily understood the word “attack” means more than a threatening gesture, and the law should have been applied to the evidence, and the jury instructed that if, by the acts and conduct of deceased, it reasonably appeared to defendant that his life was in danger he had a right to shoot.

In Rodriguez v. State, 58 Tex. Cr. R. 400, 126 S. W. 266, it is held: “The court’s charge on self-defense limited appellant’s right on this theory of the facts to an actual attack. If the deceased fired the first shot, it was unquestionably an actual attack, and justified this phase of the law. The evidence, however, clearly suggests a case of apparent danger. The Mexican, Mateo Andrado, leaves it in doubt as to who fired first. Tom Armstrong says appellant fired the first shot. Appellant says deceased fired the first shot. The testimony seems to be uncontroverted that the deceased started from the house towards appellant with his pistol in his hand, and ordered appellant to leave his premises. This raises the question of apparent danger. Deceased had his pistol on appellant on the gallery when he jumped behind Tom Armstrong, and in obedience to the command of deceased was • leaving the premises. It appears that on account of the fact that appellant turned to the left to go to the Mexican camp it angered deceased, and he started in the direction of appellant with his pistol in one hand and a lantern in the other, and that he was talking in a way to the appellant that indicated that he might anticipate serious trouble. The court did not charge on apparent danger. ’

In bill of exceptions No. 3 it is shown that the prosecuting officer used the following language: “ ‘Witt is a horse thief, a burglar, a liar, and a perjurer. I will not dismiss his case. I will teach him how to swear lies and perjure himself before I get through with him. I would not convict a dog on his testimony.’ And in further discussion to the jury, and in reference to the defendant, the county attorney used this language: ‘They could have put the defendant’s character in issue, to show you whether or not he was a quiet, peaceable, and law-abiding citizen, but we could not do that; we could not go into that until they made it an issue. Why 'did they not do it? Echo says that they knew that they could not prove him to be a quiet and peaceable man, and therefore, being shrewd lawyers, contented themselves to hound and besmirch the character of a dead man — the man that he killed without cause. Isn’t it a harsh rule that he has got the right to prove that the deceased was a bad man, and that the dead man did this and that, and we cannot prove what the dead man said? It is a rigid rule. Why don’t they want the light turned on? Why do they want the light of God Almighty’s truth kept from the jury? * * * If you are going to listen to this, then the strong arm of the law is paralyzed. You had as well burn up the law books and tear down the courthouses and leave them all go free. Is it fair? What sort of a man is he, do you know? And yet they could put the dead man’s character in issue, and we couldn’t. They did not do it, because they knew that if they did then we could, and they knew, I apprehend, that they couldn’t prove that his character was had, and we could prove that it was good; that he was a Christian gentleman, and therefore they did not go into it, and we are shut off. They would not put the little daughter of the defendant on, and I apprehend from that that she would testify against him and tell the truth. He phoned Mrs. Smith not to send the deceased out there; that they had had some hot words — not insulting to his wife— nothing of that kind. And when I attempted to prove what the deceased went there for they objected, object, and would not let me; it is in his statement, but they would not let me prove it. Then the wife gets on here and testifies. This lady told the officers that she was sick m bed and did not see it. Take the testimony of the deceased just before his spirit went out into the other world: ‘He killed me for nothing; I went in there, and he killed me for nothing’ — and then take into consideration that we offered to prove that he did not curse, and they would not let us; they cut us off,’ and T offered to prove that he was a member of the church, a Christian gentleman, and they cut me off.’ ”

In bill No. 2 it is shown that in his argument the following language was used: “Gentlemen of the jury, if the state had been permitted, it would have proved that the deceased stated in his dying declaration, T went back to the restaurant on the day of the homicide for the purpose of telling Johnson that we would have no trouble,’ and quoted to the jury part of the dying declaration which had, by the court, been excluded from the record, the same being, T aimed to tell him we would have no trouble;’ and further, in his argument and quotation of the evidence to the jury, the said attorney, in further discussion of the argument in relation to the dying declaration, with reference to what the deceased said about the defendant shooting him as he made his exit from the defendant’s place of business, quoting, ‘and if you will look at the screen door, you will see a bullet hole; it hit me in the side, and that is what is killing me.’ The latter part of this evidence had been by the court excluded from the record, on objection by ttie appellant.” Counsel should never testify in their argument, and especially should they not tell the jufy what the evidence would have been, had the court permitted them to introduce certain testimony. In their remarks they should always keep themselves in the record, and it would hardly occur “that the law books will be torn up and the courthouses torn down,” if they should occasionally have returned a verdict not entirely to their satisfaction. Such language should not have been used.

In another bill it is complained that the state’s attorney was permitted to cross-examine defendant’s wife on matters not inquired about in her examination in chief. This bill is in such shape that we cannot intelligently pass on this matter, but, as this case will be reversed on other matters, we will say that on another trial the cross-examination of defendant’s wife, if she is placed on the stand, should be limited to those matters about which she testifies in her direct examination. There are other matters complained of in the motion, but we do not deem it necessary to discuss them.

Reversed and remanded.  