
    JENNINGS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1910.)
    1. Witnesses (§ 383*) — Impeachment—Imma-tebial Matteb.
    A witness for defendant was asked by the state whether he had not stated to N. that defendant had married deceased’s daughter, and that deceased would have to do some killing now, as defendant would surely kill deceased, and witness having denied making the statement, it was error to permit the state to prove that he had made it, and thus contradict the witness on an immaterial matter.
    [Efl. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.*]
    2. Homicide (§ 169*) — Declabations oe Deceased-Identification oe Accused.
    Defendant killed deceased because of animosity arising out of defendant’s marriage to deceased’s youngest daughter, and on the trial defendant offered to prove that after the marriage of deceased’s two daughters, one to H. and the other to defendant, witness bad a conversation with deceased as to the men who had married his daughters, and that deceased called H.’s name, but referred to the other party as “that other man,” and remarked that he would separate “that other man and his wife.” Held, that such evidence was not objectionable as not sufficiently referring to accused.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 169.*]
    3. Homicide (§ 169*) — Declabations oe Deceased to Accused.
    In a prosecution for homicide alleged to have grown out of deceased’s aversion to defendant marrying his daughter, defendant, having shown the malevolence of deceased generally to his family and to defendant, was entitled to prove that on an occasion two or three weeks before the homicide deceased, in speaking about his circumstances and separation from his wife, and on being advised to go somewhere else to live, stated that he would go back, and that witness would hear from him in about four days.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 169.]
    4. Homicide (§ 169) — Evidence—Misconduct of Deceased.
    Where defendant killed deceased because of animosity growing out of defendant’s marriage to deceased’s daughter, evidence that deceased had been guilty of incest with his daughter, and that that was the cause of the separation between deceased and his wife, was irrelevant.
    [Ed. Note. — For other eases, see Homicide, Dec. Dig. § 169.]
    5. Homicide (§ 309) — Manslaughter—Evidence.'
    Defendant having married deceased’s youngest daughter against his will, deceased threatened to take defendant’s life and to separate him from his wife. Deceased carried a gun wherever he went, and, having come to town fully armed where defendant was at work, defendant, on being informed that deceased had come to kill him, left his work, secured a gun, and shot deceased, who was coming towards him with a gun in his hands. Held,, that such facts did not call for a charge on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 309.]
    6. Homicide (§ 309) — Self-Defense—Manslaughter — INSTRUCTIONS.
    In a prosecution for homicide, the court was not necessarily required to charge on manslaughter because self-defense was in the case.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.] '
    Appeal from District Court, Wheeler County; F. P. Greever, Judge.
    John N. Jennings was convicted of second-degree murder, and he appeals.
    Reversed and remanded.
    A. N. Lawrence and Marion Reynolds, for appellant. John A. Mobley, Asst Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Ami Dig. Key No. Series & Rep'r Indexes
    
   McCORD, J.

The appellant was convicted of murder in the second degree; his punishment being assessed at 10 years’ confinement in the penitentiary.

From the statement of facts we gather: That the deceased J. C. Colwell, resided close to the town of Shamrock, in Wheeler county, Tex. That he was a man of family. Domestic troubles sprang up between himself and wife, when she left him and took up her home with her father, Mr. Bowen. That deceased had two daughters, one about 17 and the other about 15 years of age. He lived out on a farm or ranch. His oldest daughter, after the separation, married a man by the name of Horn. The other daughter, a girl about 15 years of age, married the defendant in this case, John N. Jennings. The deceased was violently opposed to this marriage, and after an application was made sworn to before the county clerk by the defendant, his license to marry the daughter of deceased was granted. After his marriage, the deceased went before a justice of the peace and made an affidavit against the defendant charging him with both perjury and incest, in that the defendant was related to his daughter. The defendant was a first cousin of the wife of deceased, which made him second cousin to his own wife. The defendant was arrested on a warrant issued by the justice of the peace and gave bond. It seems from that time on bitterness sprang up between the defendant and deceased. The testimony discloses that the deceased made several threats against the life of defendant and swore that he should, never live with his daughter and that he intended to separate them. He carried his gun wherever he went, and it seems that some of the neighbors tried to interfere and keep both the defendant and the deceased from going armed. On the day of the difficulty, which occurred in the town of Shamrock on the 17th day of February, 1910, the defendant was at work assisting in unloading a car of coal. The deceased, in company with a man by the name of Bradley, passed within 75 yards of where defendant was unloading the coal, walking, deceased leading a horse and strapped to the saddle of the horse was a Winchester rifle. The deceased went on into the town of Shamrock, defendant left his work, went to Bowen’s house, where he was living, got a gun, and returned to town and went into the store of a man by the name of Griffin, sat down by the stove, and stayed there awhile; the day being quite cold. Directly he got up and went to the window at the front of the house, and, as deceased and Bradley stepped off of the gallery of the store across the street and had made a few steps toward the store in which defendant was, defendant fired and killed deceased, and also shot Bradley. The deceased, before the shooting, put his horse in a wagon yard and took the gun that was strapped to the saddle and carried it with him and had it in his hands at the time of the killing. After the shooting, there was also found a pistol on deceased’s person. The defendant proved by the witness Davis that, after the deceased and Bradley passed by where the defendant was unloading the coal, he had occasion to go to a closet up close to the wagon yard where deceased had placed his horse. This closet had a couple of stalls. He went into one, and directly the deceased and Bradley went into the other stall, and he overheard a conversation between them, in which the deceased said to Bradley that he (Bradley) had better take his (deceased) pistol. Bradley remarked that it was not necessary and asked deceased if his cartridges were all right. The deceased replied, “Yes, my cartridges and gun are all right, and they will get Jennings.” The witness said that he left this place and went and told defendant about it, and that defendant then went off to get a gun.

On the trial of the case, when Horn was upon the witness stand, he being the man who married deceased’s oldest daughter, he testified in behalf of the defendant of the bitter objection of the deceased to the defendant and his bitter objection to defendant’s marriage to deceased’s daughter, and to threats that had been made by the deceased. Over the objections of the defendant, the state was permitted by the court to ask the witness if he (witness) had not stated to a man by the name of Neese that defendant had married deceased’s daughter, and that the deceased would have to do some killing now, as the defendant would damn sure kill the deceased. He denied making this statement, and the state was permitted, over the protest and objection of the defendant, all of which is saved by proper bill of exception, to show that the witness did make that statement to him, giving the time and place. This was objected to on the ground that it was collateral, hearsay, involved the opinion of the witness, and defendant could not be found thereby. It is not necessary to write to any extent upon this subject This character of testimony has been condemned so often by this court that we are at a loss to know why the state’s counsel will insist upon the introduction of this kind of testimony or why trial courts will permit it. In the Drake Case, reported in 29 Tex. App. 265, 15 S. W. 725, a question similar to this came before our court for review, and the question was exhaustively reviewed by Judge Wilson, and the rule so well established and the reasons why such testimony should not be admitted so ably stated that we believe it would be superfluous on our part to add anything further to what was said by this court in that opinion. The question there was this: The son of Drake, who testified in behalf of defendant, was asked, over the objection of the defendant, if he had not stated in the presence of Robinson,. Bacon, and others that he knew his father was going to kill Guinn before he and his father left home that morning. He denied making this statement, and Robertson, Bacon, and others were placed on the stand to contradict him, and the court held in that case that this was collateral and irrelevant; that the state was bound by the answer given by the witness; that the testimony was simply the opinion of the witness; and that the defendant could not be bound by that opinion. This rule has been followed by this court down to the present. See Cogdell v. State, 43 Tex. Cr. R. 178, 63 S. W. 645; Collins v. State, 66. S. W. 840; Wilson v. State, 37 Tex. Cr. R. 64, 38 S. W. 610; Morton v. State, 43 Tex. Cr. R. 533, 67 S. W. 115; Parker v. State, 46 Tex. Cr. R. 461, 80 S. W. 1008, 108 Am. St Rep. 1021; Woodward v. State, 50 Tex. Cr. R. 294, 97 S. W. 502; Hobbs v. State, 53 Tex. Cr. R. 71, 112 S. W. 313. The testimony was clearly inadmissible. It was not only inadmissible, but it was damaging and hurtful to the defendant, and the court below committed error in permitting this testimony to go to the jury.

We find also in the record a bill of exceptions to the action of the court in refusing to permit the defendant to prove by H. M. Wiley that, after the marriage of the two daughters to Asa Horn and to Jennings, he (jvitness) was'in the town of Wheeler and had a conversation with the deceased in reference to the men who had married his daughters, and that he called Asa Horn’s name, but referred to the other party as “that other man,” and remarked that he would separate “that other man and his wife”;. that they should not live together; that this testimony could have referred to no one but the defendant, because Horn and defendant were the only men who had married his daughters. This testimony was objected to on the part of the state because it did not show that it referred to the defendant. Defendant offered this testimony to show the feeling and animosity that deceased had toward the defendant. We think the court erred in not permitting this testimony to go to the jury; that it was admissible for the defendant to show the feeling and animosity of the deceased, and, when taken in connection with the other action and conduct of the deceased, was a circumstance to throw light upon the transactions at the time.

We also find in the record a bill of exceptions to the action of the court in not allowing defendant to prove-by Suggs that he, some two or three weeks before the homicide, had .a conversation with the deceased. The deceased was speaking about his condition and circumstances, about the separation of himself and wife, and' the witness advised him to leave and go somewhere else, and the deceased told him, “No, I will go back up there to Shamrock, and you will hear from me in about four days.” This was objected to on the part of the state as irrelevant, Because it did not show that the deceased was referring to the defendant. We are of opinion that the defendant was entitled to have this testimony to go before the jury, in view of the conduct of deceased toward the defendant, of his objection to his marriage to his daughter, and as showing the malevolence of deceased generally to his family and the defendant, and for this reason the court should have permitted this testimony to go to the jury.

We also find in the record a. bill of exceptions to the action of the court in not allowing defendant to prove by deceased’s wife and daughter that the deceased had been guilty of incest with his daughter, and that was the cause of the separation of the deceased and his wife. This testimony was inadmissible and had no bearing upon the case, and the court correctly excluded this testimony from the consideration of the jury. The domestic troubles existing between , the deceased and liis wife had no place in the record in this case. The jury was not required to know the cause of the animosity that existed between these parties. It had only to do with the fact that bad feeling did exist.

We think there is no merit in the other bills of exception in the record.

The court submitted the case to the jury on murder in the first and second degree and self-defense. He did not charge upon manslaughter, and complaint is made of the failure of the court so to do. We do not think the facts called for a charge on manslaughter. The testimony from the state’s side makes out a case of murder; from defendant’s standpoint, a case of self-defense. Simply because self-defense is in the case, it does not follow that necessarily the court must charge on manslaughter. Issues arising from the testimony alone should be submitted to the jury. See Jirou v. State, 53 Tex. Cr. R. 18, 108 S. W. 655.

For the errors indicated, the judgment will be reversed and remanded.  