
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.)
    1. Homicide (§ 203) —Evidence — Dying Declarations — Admissibility.
    Statements as to the fatal difficulty made by deceased after he had stated that he believed ho was going to die, and had remarked. “Doctor, you are too late,” and when it did not appear that ho had any hope of recovery, and while he was sane, and made without persuasion or in answer to interrogatories to lead him to make any particular statement, were admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    2. Criminal Law (§ 396) — Evidence—Dying Declarations — Admissibility of Whole Declaration.
    Where defendant relied on a part of a statement admitted as dying declaration, the whole statement was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    3. Cbimhstal Law (§ 366) — Evidence—Res Gestae.
    Where deceased in a minute or a minute and a half after shots were fired came into a restaurant about 40 feet from the place of the shooting, and told a witness that defendant had shot him, such statement was admissible as a part of the res gestte, and it was immaterial that it was made in answer to question propounded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    4. Witnesses (§ 345) — Impeachment—Ciiah-acteb oe Witness — Indictment fob Misdemeanor.
    Proof that a witness was under indictment can affect his credibility only where the offense is a felony, or, if a misdemeanor, an offense involving moral turpitude.
    [Ed. Note. — Ifor other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    5. Criminal Law (§ 444)— Evidence — Documentary Evidence — Authentication. .
    A copy of an indictment which has no certifícate attached thereto, and which is not proven to be an examined copy, is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    6. Homicide (§ 158) — Evidence—Threats.
    In a trial for murder, evidence that defendant and another, on the night of the difficulty, and only a short time before it, said referring to deceased, that “they would get even with the long-legged son of a bitch,” was admissible as tending to show ill will, and as a threat.
    [Ed. Note. — For other cases, see Homicide. Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    7. Homicide (§ 169)— Evidence — Admissibility.
    In a trial for murder, evidence of a witness, who testified to a threat made by defendant and another as to where he was going, the purpose of his trip, and that .he got a pistol to protect a third person on account of threats made by defendant and another to do such person harm, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    8. Criminal Law (§ 6S6) — Trial—Reception op Evidence — Order.
    Under Code Cr. Proc. 1895, art. 698, providing that the court may allow testimony to be introduced at any time before argument is concluded, if deemed necessary to due administration of justice, the time of introduction is a matter largely within the discretion of the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1619, 1620, 1625, 1626; Dec. Dig. § 686.]
    9. Homicide (§ 166) — Evidence—Relations of Pasties.
    In a trial for murder, where there was evidence of threats by defendant against deceased, and of a difficulty between them, evidence that deceased and defendant were opposing candidates for constable at the preceding election was admissible on the question of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    10. Criminal Law (§ 655) — Tbiai>-Remabks to Juey on Adjournment.
    In a trial for murder, where defendant’s bill of exceptions showed that each of the jurors selected had testified that he knew the result of a former. trial, and knew that the trial court had set aside the judgment, but had stated that such knowledge would not influence his verdict, and had been accepted, the remark of the court at adjournment that they must not separate, and that, if they did so, “it would force him to grant a new trial,” was under the circumstances of the case improper.-
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    11. Criminal Law (§ 186) — Former Jeopardy — Murder. in First Degree.
    After acquittal of murder in the first degree upon a trial on indictment for murder, defendant cannot be again tried for that offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 312, 320, 345-361; Dec. Dig. § 186.]
    12. Homicide (§ 308) — Trial—Instructions —Murder, in the Second Degree.
    An instruction that when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, or tend to mitigate, excuse, or justify the act, then the law implies malice, is not objectionable, as charging that any unlawful killing would be murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-648; Dec. Dig. § 308.]
    13. Criminal Law (§ 814) — Trial—Instructions — Principals.
    Where the evidence on a trial for murder showed that defendant and another were together until defendant was arrested, that together they made threats that they were going to get deceased and another, that they went into a pool hall together, and that the person accompanying defendant had no words with deceased at the time of the shooting, and, if he fired at all, he did so because of the trouble between defendant and deceased, that as they left the pool hall defendant asked such person if he was going to finish with him, to which he replied that he was, an instruction on the law of principals was properly given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833. 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    14. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions.
    Error, if any, in an instruction as to principals in not requiring both parties to have been present, was not reversible, where the undisputed evidence showed beyond doubt that they were both present.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3154^3163, 3169; Dec. Dig. § 1172.]
    15. Homicide (§ 305) — Trial—Instructions —Principals—Affirmative Defense.
    Upon a trial for murder the dying declaration of deceased was in evidence, in which he declared that defendant had shot him, and also that a third person had shot him, and there was evidence that the pistol taken from defendant had not been fired, and that it was of a different calihor from that with which the wound was inflicted. Held that, after a charge on the law applicable to principals, the defense that, even though defendant was present, he was not guilty if the third person accused fired the fatal shot and he did not aid or encourage him in doing so by any word or act, and did not know his unlawful intention, should have been presented affirmatively.
    [Ed. Note. — For other cases, see. Homicide, Cent. Dig. § 637; Dec. Dig. § 305.]
    16. Criminal Law (§ 814) — 'Trial—Instructions — Provoking Difficulty.
    Upon a trial for murder, it appeared that defendant and another had made threats against deceased on the night of the shooting; that, while they were together at a pool hall, deceased appeared at the door and made the first remark about not having any keys, to which defendant, who had been his opponent at an election for constable, replied, “Well, you have the keys now.” Hold, that an instruction upon provoking the difficulty was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    17. Homicide (§ 309) — Trial—Instructions —Manslaughter.
    Where the evidence upon a trial for murder disclosed no act or conduct on the part of deceased at the time that would be adequate to reduce the offense to manslaughter, and there was no evidence of antecedent threats or misconduct on the part of deceased, it did not raise the issue of manslaughter, since it presented no theory upon which adequate cause could be based.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dee. Dig. § 309.]
    18. Homicide (§39) — Degrees—Manslaughter.
    Sudden passion without an accompanying adequate cause to produce the passion, as de-firied by law, will not reduce homicide to the grade of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 59-61; Dec. Dig. § 39.]
    19. Homicide (§ 151) — Presumption and Burden of Proof^Self-Defense.
    The state has the burden of proving that defendant has lost his right of self-defense.
    LEd. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig; § 151.]
    20. Homicide (§ 300) — Instructions—Self-Defense — Inference from Use of Weapon.
    An instruction in a murder case presenting the presumption arising under Pen. Code 1895, art; '076, which declares that when homicide is committed to prevent murder, and the weapon used by the person attempting murder is such as would have been calculated to kill, it is to be presumed that a killing was intended, in words that, “and if the weapon used by:him, and the manner of its use, were such as were reasonably calculated to produce death or serious bodily injury,” unless followed by the words “or it reasonably so appeared to defendant,” or words of similar import, is erroneous.
    [Éd. Note. — For other cases, see Homicide, Cent. Dig. §§ 6LL632; Dec. Dig. § 300.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    J. J. Johnson was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Smith & Blackshear, Joe E. Bradley, and Carter & Walker, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was indicted for murder, and, when tried, was convicted of murder in the second degree, and his punishment assessed at seven years’ confinement in the penitentiary.

The state’s testimony would show that appellant and deceased, Dan Cooper, were opposing candidates for constable, and deceased defeated appellant; that on the night of ■the fatal encounter there was a show in the town of Kirbyville, and defendant and Walter McMahon were on the grounds, and were heard to state that: “Dan Cooper (deceased) thinks he is damn smart in that office. We will fix him so that he will not act so damn .smart.” Another witness testified he saw .the two together, and he heard one of them say: “They were going to get Dan Cooper and Jeff Havens. They would get even with the damn long-legged son of a bitch.” After the show was over, appellant and McMahon went to the pool hall of J. B. Gibbs, and while they were there deceased appeared at the front door, with a prisoner, and asked Gibbs if this (the prisoner) was the man, and, upon being informed that he was, said he would have to lock him up, and that, if he had had a key before, he would have locked him up at first, when appellant remarked, “You have a key now,” when deceased replied he had one then, but he had been compelled to ask appellant for it three ■or four times before getting it, when appellant said, “You didn’t,” and deceased replied, “I did,” Johnson then saying, “You are a damned liar,” or a “God damn liar.” Deceased turned in the direction of Johnson, and reached out his hand toward Johnson, when a pistol or pistols fired twice. No witness says deceased had a pistol in his hand when he reached towards Johnson, but the circumstances would indicate that he might have done so, for several say that, as deceased backed off the gallery, a pistol was dropped on the gallery, and, when picked up, was identified as the pistol carried by deceased. Deceased retreated toward Robert Cooper’s store, -and, when he got in there, told two witnesses that Johnson had shot him. Later, when Dr. Bean arrived, he told him that McMahon had shot him; that there were two in it; that they had set their plans to take his life,- and had accomplished it; that he did not want the wrong man hurt.

When appellant was arrested about 20 minutes after the shooting, he surrendered a 45-caliber pistol, and the witnesses say it had not been fired in some time. Upon the statement made by deceased to Dr. Bean that. McMahon shot him, and from the fact that the pistol found in his possession had not been fired, and the further fact that the witnesses testify that the wound was made by a ball not exceeding a 38 caliber, and indicated that it was made by a 32 caliber, and some other circumstances in the case, appellant insists that the testimony more strongly points to McMahon as being the one who fired the shots than it does to him. However, some four or five witnesses testify positively to seeing appellant shoot, while no witness testifies positively to seeing McMahon shoot, and the sheriff testifies that he kne.w that appellant owned a 32-ealiber pistol, as he was at that time a deputy sheriff, and he had seen him with it. On cross-examination appellant developed the fact that, while thé witnesses used “they” as to what was said near the show about deceased, yet in fact it was McMahon who had made the remarks in the presence and hearing of the witnesses about deceased, and had said, “They were going to do those things that . night'.” This is a sufficient statement of the case to make clear the rulings herein.

1. We do not think the court erred in permitting Dr. Bean to state what deceased told him about the difficulty. It was sufficiently shown that he was aware of approaching death. The doctor states, when he arrived, deceased stated he believed he was going to die, and remarked, “Doctor, you are too late.” It is not shown by any witness that he had any hope of recovery at the time, and it is apparent that he was sane, and the statements were not made through persuasion, and were not made in answer to interrogatories calculated to lead him to make any particular statement.

In addition to this, defendant relied on the statement made to this witness that it was McMahon who shot, and the remark was a part of the same conversation. If one part is elicited by defendant, then all the conversation relating to the same matter would be admissible.

2. Neither was there error in permitting Gate Lee to testify that deceased told him that Johnson (appellant) had shot him. The witness testified that, when the shots were fired, he was in Robert Cooper’s restaurant about 40 feet from the place of the shooting; that in about a minute or a minute and a half thereafter deceased came in, and then it was: that he told him appellant Johnson had shot him; that blood was flowing freely from him. This was clearly admissible as a res gestee statement. This ruling also applies to the testimony of A. C. Fulletz, who says decéased ran from the place of tile shooting to the restaurant of Robert Cooper, about 40 feet, and made a statement to him almost immediately after he got in the restaurant. It is immaterial that the statement was made in answer to a question ‘propounded, witness saying it was only about two minutes after the shots were fired until he saw deceased. The witness asked him who shot him, and he answered, “Johnson.” Under all the decisions, these statements were res gestae of the transaction. Witness says deceased was bloody all over, and he helped pull off his coat.

3. There was no error in refusing to permit the defendant to xirove that witness Petty was under indictment for violating the local option law; it being a misdemeanor in that county. Nor was there error in refusing to permit it to be shown that the witness Stevens was under indictment for unlawfully riding a horse, that also being a misdemeanor in this state, and no proof being offered that it was a graver grade of offense, in Louisiana. In addition to this, the copy of indictment offered had no certificate attached thereto, and no proof was offered that it was an examined copy. Proof that a witness was under indictment, to effect his credibility, can only be made where the offense is of the grade of felony, or, if a misdemeanor, is an offense involving moral turXJitude.

4. There was no error in permitting the witness Petty to testify: “They [referring to defendant and Walter McMahon] said they would get even with the long-legged son of a bitch.” It is shown that this remark was made the night of the difficulty, and only a short time prior thereto, and the remark in the connection used tended to show ill will and a threat. However, this witness Petty should not have been permitted to go into details about where he was going, the purpose of his trip, and that he got a pistol to protect Jeff Havens on account of threats made by appellant and McMahon to do Haven harm. He should be permitted to testify to the threat made about deceased and the remarks made in connection therewith, but not to go into details of other matters unless brought out by ai>pellant on cross-examination.

5. As to the time of introduction of testimony, this is a matter largely within the discretion of the trial court, as article 008 of the Code of Oriminal Procedure provides that the court may allow testimony to be introduced any time before argument is concluded, if die deems it necessary to the due administration of justice. There is no such abuse of this discretion in permitting Sheriff Stevenson to testify as would call for a reversal of the case.

Nor was there error in permitting a witness to testify that deceased and appellant were opposing candidates for constable in the preceding election, In the light of the record this may have been the incentive or moving cause of the trouble between them, and was admissible on the question of motive, etc.

6. Appellant shows by a bill that each of the jurors selected had testified that they knew the result of a former trial, and knew the trial court had set aside that judgment, but had answered that such knowledge would not influence their verdict, and had been accepted, when after they were sworn and imimneled, at adjournment time, the court instructed the jury they must not separate, for, if they did do so, “it would force him to grant a new trial.” This was improper, and the objections of appellant thereto under the circumstances of this case seem to be well founded. As explained by the court, this might not alone present reversible error, yet, as the case will be reversed anyway on other grounds, we call attention to it that the court may not again fall into the same error, but may instruct them in the first instance in the way he did after this exception had been reserved.

7. As appellant was acquitted of murder in the first degree, and cannot again be tried for that offense, we will not discuss the grounds in the motion complaining of that portion of the charge.

8. The charge on murder in the second degree; when read as a whole, is not susceiotible to the criticism that it instructed the jury that any unlawful killing would be murder in the second degree, for it instructed them, “When the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse or justify the act, then the law implies malice,” etc.

9. Neither do we think the court erred in charging on the law of principals. The evidence shows that appellant and McMahon were together all that night until appellant was arrested; that the threats made near the show were that “we” are going to, etc., to-night, the state contending that appellant made a portion of the threats; if not, he engaged in the conversation, and his words, acts, and conduct made the threats the acts of both; that they both left the show grounds together, and went to the pool hall together. And it is further shown that McMahon had no words with deceased at the time of the shooting, and, if in fact he did fire any shot, it was fired because of the altercation between appellant and deceased; that as they left the pool hall appellant said to McMahon, “You started this with me, are you going to finish with me?” and McMahon replied, “Yes; I am with you.” These facts fully authorized the court to submit the law of who are principals in the commission of an offense.

The criticism of the court’s charge on principals that the court does not require both to be present at the time of the commission of the offense is perhaps well founded, and in framing the charge on another trial' this defect should be remedied. However, as the testimony discloses beyond doubt that they were both present, this would not alone present reversible error, as this is an undisputed fact.

However, appellant insists that, if the court charged the law applicable to who are principals, he should have presented affirmatively his defense, that is, that even though he was present, if McMahon fired the fatal shots, and appellant did not aid or encourage him in so doing by word or act, and did not know the unlawful intent, he would not be guilty of any offense. Inasmuch as the deceased told Dr. Bean who killed him, and the sheriff and Dr. Ogden testify that the pistol taken off appellant after the shooting had not been fired, and also testify this pistol was a 45-ealiber pistol, while the testimony shows the wound was inflicted with a 32 or 38-caliber pistol, and no pistol of that caliber being found in his possession at the time, the court should have presented this theory of the case, as it appears this was one of his principal contentions. It may be the court thought that the testimony by a preponderance thereof showed that appellant fired the shot, and we are inclined to think so too; yet, if the evidence raises such an issue as it does in this case, the theory of the state and defendant should both be properly presented in the charge. The court presented the theory from the standpoint of the evidence introduced by the state, but wholly failed to present the converse of that theory in presenting the law as to principals.

10. A number of criticisms are contained in the motion for a new trial as to the charge on provoking the difficulty, but, as we do not think a charge on this issue should have been submitted, we will not discuss them. Although it is shown that threats were made at the show tent, yet, when appellant and McMahon left the show, they did not go to where they knew they would meet deceased, but went to the pool hall. After getting to the pool hall, and appellant had engaged in a game of pool, deceased appeared at the door; it is true, on a lawful mission. Yet, if there were strained relations and animosity existing between the men on account of the election contest or other causes as was contended by the state, the appellant made no remark, but the remarks were first made by deceased about not having any keys at a prior hour. Now, if there was feeling about these keys, deceased must have known that the remark was calculated to call forth a remark from appellant, who was standing in a few feet of him. In answer to this remark appellant stated, “Well, you have the keys now.” And then the remainder of the conversation occurred, and it is a question in this record who was guilty of the first overt act. Appellant not beginning the conversation that led up to the difficulty, and no antecedent acts being shown, the issue of provoking the difficulty was not in the case, and it was error for the court to submit this issue.

11. And, having held that provoking a difficulty or imperfect self-defense was not in the case, neither do we think the evidence raises the issue of manslaughter, and'therefore, will not discuss the grounds assailing those paragraphs of the charge. The evidence discloses no act or conduct on the part of' deceased at the time that in law would be adequate cause to reduce the offense to manslaughter, and, there being no evidence of antecedent threats or misconduct on the part of deceased prior to the fatal encounter, the evidence presents no theory upon which adequate cause could be based.

Sudden passion, without the accompanying adequate cause to produce the passion as defined in law, will not reduce an offense to the grade of manslaughter. If on another trial the evidence is of the same nature as on this trial, the court will not charge on provoking the difficulty nor on manslaughter. The evidence, as presented on this trial from defendant’s standpoint, is that, when the conversation about the keys took place, deceased wheeled and started towards him with his right arm raised, and, from the fact his pistol was heard to drop on the gallery immediately after the shooting, and found there, it might be contended that he had a pistol in his hand at some time before leaving the scene of the difficulty. This would raise the issue of self-defense, not manslaughter.

12. The criticism of the sentence, “If you find that the defendant did not lose his right of self-defense under the instructions given you, then, upon the law of self-defense, you are instructed,” etc., need not be discussed, as it cannot occur again under the holding that provoking the difficulty is not in the case. But if additional testimony should be adduced on another trial, and the court should think it proper to again submit that issue, this clause will be so charged as not to place the burden on defendant to prove that he had not lost the right of self-defense, as the burden is on the state to prove that he had lost his right of self-defense, if he had done so.

13. The remainder of the charge on self-defense does not shift the burden of proof as contended, and there is no error in the charge in that respect.

14. The criticism of that part of the, charge presenting the presumption arising under article 676 of the Penal Code is in part well founded. Where the court instructs the jury, “and if the weapon used by him, and the manner of its use, were such as were reasonably calculated to produce death or serious bodily injury,” should have been followed by the words, “or it reasonably so appeared to defendant,” or words of similar import. Deceased was an officer, and he had a right to have a pistol, and the fact he did have one, unless he in some manner attempts to make use of it, would not raise any presumption.

There are a number of other grounds in the motion for- a new trial, but we do not deem it necessary to discuss them, as in the foregoing we have sufficiently ruled on all matters.

The judgment is reversed, and the cause is remanded.  