
    JOHNSON v. STATE.
    (No. 7104.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1922.)
    1. Criminal law &wkey;>72l(3), 730(10) — District attorney’s comments on failure of defendant to introduce testimony as to character held improper, but not prejudicial error.
    Where, in a prosecution for murder, the district attorney stated that'he could not introduce testimony regarding the character of deceased, or of defendant, but that defendant could introduce' such testimony, but had not done so, and asked the jury why, hold that the argument was improper, but not so harmful that it could not be cured by the prompt action of the trial court in instructing the jury not to consider it.
    2. Criminal law <&wkey;366(3) — Testimony as to exclamations of deceased after being shot admissible as res gestae.
    In a prosecution for murder, evidence that after the fatal shot was fired, a voice cried out: •‘Oh, Lordy! somebody come and help me. I am lying here dying” — held properly admitted as res gestae.
    3. Criminal law <&wkey;665(4) — Allowing witness under rule to testify after hearing other witnesses held within discretion of trial court.
    In a prosecution for murder, it was within the discretion' of the trial court, after the rule had been invoked, to permit a witness who had heard the testimony of other witnesses to identify the clothing worn by deceased at the time of the homicide; the testimony overheard by the witness having no relation to such clothing. t
    4. Criminal law <&wkey;404(4) — Admission of clothing of deceased through which shot had gone held not error.
    Where, in a prosecution for murder, it appeared that deceased was shot just above the left hip pocket, and the proximity of the parties at the time of the shooting was an issue, admission of the trousers and drawers of deceased through which the shot had gone was not error.
    5. Homicide &wkey;>308(3) — Evidence held to justify submission of law of murder.
    In a prosecution for murder, where it appeared that defendant approached deceased on horseback, ordered deceased to go on up the road, and shot him after he had done so, evidence held to justify the submission of the law of murder to the jury.
    6. Homicide <$=>193 — Exclusion of evidence as to deceased stating he needed his pistol held not erroneous.
    In prosecution for murder, it was not error to exclude testimony that on the morning of the homicide deceased had refused to lend his pistol to another party, saying that he was going to need it; it not being shown that deceased expected or intended trouble with defendant.
    7. Homicide <&wkey;129 — Indictment stating that killing was upon malice aforethought held not invalid.
    If a killing is upon malice aforethought, it is unlawful, and it does not vitiate the indictment to so state.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    J. L. Johnson was convicted of murder, and he appeals.
    Affirmed.
    R. G. Storey, 'Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Freestone county of the offense of murder, and his punishment fixed at 35 years in the penitentiary. There is no brief on file for appellant.

The parties to the killing were negroes. Deceased was walking along the road with a negro girl, Mazarene Peterson. Another negro couple were following them a short distance behind. The record shows that appellant had been keeping company with Maz-arene. On the occasion in question, riding on horseback, appellant overtook the other ne-groes. According to the state witnesses,. he ordered deceased to go on up the road. Appellant had a shotgun. Deceased went on up the road as ordered. Appellant jumped off his horse, raised his gun, and told deceased to take his hands out of his pockets. Mazarene and the other negroes fled. As they fled, appellant fired and killed deceased. After this shot, and before his death, deceased fired one or two shots from a pistol which he had. Testifying in his own behalf appellant claimed deceased had made * threats against' him, and that when he approached him at the time of the homicide deceased looked at him and put his hands in ■ his pocket, and that he asked deceased to go up the road; that, thinking deceased had something, he got off his horse and came around in front of it, and as he did so he pulled the trigger of his gun and shot; that before he shot deceased had snapped his pistol at .him; that after he shot deceased the latter shot twice at him with a pistol, one bullet striking his gun and glancing off and going through appellant’s clothes. This is a sufficient statement of the facts.

The first bill of exceptions complains of the argument of the district attorney. It is made to appear that said attorney stated:

“Gentlemen of the jury, we could not introduce testimony regarding the character of the deceased or of the defendant. The defendant could introduce such, testimony, but has not done so. I ask you, gentlemen, why?”

It is also made to appear that immediately lgion the making of such remark objection was made, which was sustained by the court, and the court then in writing; instructed the jury not to consider said remark. It is not shown what led up to or induced or caused the remark, or that same was not an inadvertent statement. We have held that since the reputation of the deceased can only be put in issue by the defense, his failure to introduce evidence showing such reputation to be bad may be commented on by the state. Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765. Unless reference to the failure 'of the defendant to prove his own good reputation is in some way caused by the argument of the defense counsel, we have usually held such references to be improper, but we know of no case which has been reversed solely therefor. In some of the cases state’s counsel has been criticized for dwelling at length upon the failure to introduce such proof. Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70; Turner v. State, 39 Tex. Cr. R. 322, 45 S. W. 1020. In these cases, however, it will he observed that the trial court refused to sustain the objection of the appellant to the argument, which.was very much more extended and emphatic than that contained in appellant’s bill of exceptions, and the statements in the opinions of this court that the action was error seem to be directed at the failure of the trial court to instruct the jury not to consider the improper argument. We regard such argument as improper, but in a case such as that now before us we do not think it of such materiality and so hurtful as that same could not be cured and corrected by the prompt action of the trial court in instructing the jury not to consider same. King v. State, 32 Tex. Cr. R. 463, 24 S. W. 514; Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125; Patterson v. State, 87 Tex. Cr. R. 106, 221 S. W. 596.

A witness testified that after the shotgun fired she heard a voice crying out. Asked what was said by the person so crying out, witness testified:

“I will state he was saying: ‘Oh, Lordy! somebody come and help me. I am lying here dying.’ ”

The 'statement was res gestae and properly admitted. In section 83 of his Annotated P. C., Mr. Branch cites many authorities supporting this contention.

That a witness had been in the courtroom and had heard the testimony of other witnesses, the rule having been invoked, is a matter addressed largely to the discretion of the trial court. It appears that the testimony of said witness was for the purpose of identifying the clothing worn by deceased at the time of the homicide. It further appears that the testimony heard by said witness had no relation whatever to said clothing. The matter was within the discretion of the trial judge. ,

Deceased was shot just above the left hip pocket. The proximity of the parties at the time of the shooting was an issue. The clothing worn by deceased evidenced the size and character of hole made by the shot, and might have aided in the solution of the issue mentioned. The admission of the trousers and drawers of deceased through which the shot had gone was not erroneous.

The exception to the court’s charge because same submitted the law of murder was not well taken. The state’s proof amply supported the proposition of a killing upon malice and without justification.

The rejection of testimony showing that on the morning of the homicide deceased had refused to lend his pistol to another party, saying, “I am going to need it,” was not erroneous. It was not shown that deceased expected to meet appellant on that day, and there was nothing to indicate either an intention or fear of trouble with appellant, or that deceased expected a need of the pistol in any way connected with, appellant. The record reflects the further fact that during the day of the homicide and prior thereto deceaáed was with appellant, and made no attempt to use the pistol.

Appellant moved in arrest of judgment upon the ground that the charge in the indictment that he “did unlawfully and with malice aforethought kill and murder Oliver Scott by shooting him with a gun” was bad .because of the use of the word “unlawfully.” We are unable to see the force of the contention. If the killing was with malice aforethought it.was unlawful, and to so state in the indictment did not vitiate that instrument.

We have carefully considered each ground of this appeal. We think the record devoid of reversible error.

The judgment is affirmed. 
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