
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.
    Rehearing Denied March 4, 1914.)
    1. Cbiminal Law (§ 814) — Instructions— Circumstantial Evidence.
    Where three witnesses testified in a homicide case that accused admitted to them that he struck the fatal blow, it was not error to refuse a requested charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dee. Dig. § 814.]
    2. Homicide (§ 250) — Sufficiency of Evidence.
    Evidence held to sustain a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dee. Dig. § 250.]
    3. Homicide (§ 239) — Sufficiency of Evidence.
    Evidence, in a homicide case in which accused claimed that the killing resulted from passion aroused by insults to his sister, held not to show that accused committed the killing as soon as he could get to decedent after learning of the insults.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 502; Dec. Dig. § 239.]
    4. Homicide (§ 309) — Instructions on Manslaughter-Insult to Female Relative.
    The court charged in a homicide case that if accused had been informed of the insulting words or conduct by decedent toward his female relative, and by reason thereof his mind was aroused to a degree of anger, sudden resentment, or terror which rendered him incapable of cool reflection, and if the killing was upon the first meeting of accused with decedent after being informed of such insult, if any, or if the jury have a reasonable doubt whether the killing thus occurred, they should convict of manslaughter. Held, that the instruction conformed to Pen. Code 1911, art. 1133, providing that to reduce a homicide to manslaughter by reason of insults to a female relative it must appear that the killing took place immediately upon the happening of the insulting conduct, or as soon thereafter as the party killing may meet with the party killed after having been informed of such insult.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Criminal Law (§ 1086) — Appeal—Harmless Error.
    Accused cannot complain of the trial court’s refusal to sustain challenges for cause as to two veniremen where the record does not show that either of them served on the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    6. Homicide (§ 170) — Admission oe Evidence.
    Evidence that tracks were found leading from the place where decedent was found, near to a certain house at which accused was shown to have been on the night of the homicide, when he admitted to the owner of the house that he and another had a fight with decedent and took decedent’s personalty, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. § 170.]
    7. Criminal Law (§ 728) — Appeai>—Presen-tation Below.
    In absence of a request for instructions on the right of the state’s attorney to comment on the evidence of a witness who testified that she had been coerced in the making of certain statements as to accused’s guilt, the comments of the state’s attorney on her evidence would not present reversible error, especially where her testimony was favorable to the state rather than to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    8. Criminal Law (§ 1171) — Appeal—Harmless Error.
    Any adverse criticism by the state’s attorney on the evidence of a witness whose testimony was favorable to the state could not have prejudiced accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Red Thompson was convicted of murder, and appeals.
    Affirmed.
    W. W. Campbell, of Alba, for appellant. C. E. Lane, Asst. A tty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was found guilty of murder, and his punishment assessed at death.

Appellant was charged with the murder of Norman Reeves. Reeves was at the home of appellant on Saturday afternoon; appellant, his father, sister, and some others being present. The testimony would indicate that Reeves was drinking, and it is claimed he sought to have intercourse with appellant’s sister, to which she objected, and left home to go and get an officer. The testimony would further show that appellant was present in the home at the time, and heard and saw all that took place; however, his sister says that while appellant was in the adjoining room playing dominoes, she does not know whether he heard her holler, or heard deceased talk, or saw his actions, or not. But when she places her brother, herself, and deceased in the position she does, it seems incredible to any one that appellant could not and did not know what was taking place, while the state’s witnesses would have him not only heating and seeing all that was said and done, but making remarks about the matter, yet he permits deceased to quietly leave the house; he following after him shortly. Then just before dark he is seen talking to deceased; while some time that night deceased is murdered. They trace tracks from the body of deceased, found in a dugout or ditch, in the direction of Buey Thomas’ house, and appellant is shown to have appeared at her house between 8 and 9 o’clock at night, and she testifies that appellant told her that he and Commie Lloyd had a fight with deceased, and had robbed him of his ring, purse, money, and a handkerchief. When appellant was arrested, a purse was found on his person that Charlie Reeves and Mrs. Reeves (father and mother of deceased) positively identify as the purse of the murdered man; Mrs. Reeves telling of circumstances of it getting real wet and drying it, whereby she could identify it. It. is true that the mother and sister of appellant say the pocketbook found on appellant is their mother’s, yet the justice of the peace says that at the time of the examining trial he showed this pocketbook to appellant’s mother, and while she at.first claimed it as hers, yet when questioned she admitted that her pocketbook was not sewed like this one, and was not torn as this one was, and that it was not her pocketbook. It was further shown by the state that appellant in the afternoon played pool in a hall in Mineóla, and when he got through did not have enough money to pay the fees he was owing, but came back in that night and took a five dollar bill out of a purse and paid his bill, and took the change, placing it back in his purse, and said “he had as much money as a Jew.” Deceased is shown, when he left home, to have had between $40 and $50, yet when found he had no money and his large pocketbook was missing. Two other witnesses testify that appellant admitted to them, or in their presence, that he killed deceased. So the contention of the state was that appellant killed deceased to rob him, while the defendant’s theory is, if appellant killed him, it was on account of the insults to his sister hereinbefore recited.

One of the complaints is that the court erred in not giving appellant’s special charge requested on circumstantial evidence. Inasmuch as Lucy Thomas, Mamie Thompson, and Alice Briscoe all testified that appellant admitted to them he struck the blows that killed deceased, there was no error in refusing the special charge. Branch’s Crim. Law, § 203.

The first four grounds in the motion for a new trial complain that the evidence, and all the evidence, would not justify a finding, nor support a verdict, of murder in the first degree. Of course, if we should take appellant’s theory, that he killed deceased because of insults to his sister, this perhaps would be true, yet if appellant heard the insulting remarks and witnessed the conduct of deceased, and made no effort to restrain him or kill deceased at that time, let him leave, and then follow along behind him, and after dark take an iron rod or bolt and strike him in the back of the head, and then rob him of his money, this state of facts, instead of presenting manslaughter, would be most cogent circumstances to show a premeditated killing for the purpose of robbery. However, the state was not bound to accept the theory of appellant, and it offered strong and cogent proof that the killing was not on account of any insult to his sister, but for the purpose of robbery, and at the time this case was tried if the killing took place under circumstances showing that it was done in perpetrating robbery, it, in law, would be murder of the first degree. Article 1141, Penal Code. The evidence for the state further shows that deceased that day had between $40 and $50 on his person and in his pocketbook; this pocketbook was found in possession of appellant after the murder; he was shown to have no money in the afternoon, while later in the night of that day he is shown to have a $5 bill, and when he got it changed in Monroe Ellis’ pool hall said, “I" have got money in my hip pocket like a Jew.” Lucy Thomas testified that appellant admitted to her that he and Commie Lloyd had had a fight with deceased, struck him with a piece of iron, and had taken off of him his money and ring, handkerchief, etc. All these things were missing from deceased when found, and he had been murdered by blows from some kind of instrument, one in the back of the head %nd one on the side of his head; the skull being crushed from both blows. This evidence, if believed by the jury, certainly supports the verdict in this case.

The next ground in the motion is that the court “erred in not affirmatively charging the jury that the insulting words and conduct of deceased towards appellant’s sister was an adequate cause.” The court did so instruct the jury. Paragraph 19 reads: “The following is deemed an adequate cause: Insulting. words or conduct of the person killed toward a female relation of the party guilty of ttie homicide.” This. ⅛ all of paragraph 19, and we find in it no such language as stated in appellant’s motion for a new trial. The court does not use the words “could be,” but instructs them this is adequate cause, and the charge is in the language of section 4 of article 1132, Penal Code.

The only other complaint of the charge on manslaughter reads as follows: “Because the court erred in his charge on manslaughter in the twentieth, twenty-first, and twenty-second paragraphs thereof, for the reason all the testimony showed that defendant, if he committed the hilling, did so immediately after the deceased left his house and after he had insulted his sister and attempted to ravish her, and that he committed such killing as soon as he could get to the deceased; and the charge of the court to the effect that the killing could not be reduced to manslaughter unless the killing occurred as soon as he saw the deceased or as soon as he learned and heard of the insults and attempted rape on his said sister.” In the first place, we will say that the evidence does not show that “he committed the killing as soon as he could get to the deceased.” The evidence offered by the state, if true, conclusively showed that appellant was present and heard and saw all that was said and what took place, and while deceased was in the room with him. Willie Aimes testified: “I heard Commie say he wouldn’t let no God damn man come to his house and do that way, and Red said, ‘No,’ no God damn man couldn’t run over his sister that way. He said something else about that he would get even, or something; I don’t know exactly what he said. He said no man couldn’t run over his sister and get off that way—get even with them, something like that. When Red and Commie was talking, I was in the kitchen. No, sir; they was not in the kitchen; they was in the front room. That was while Norman Reeves was there that I heard them talking. At the time they were talking, Norman was setting there in front of the fireplace with his head hung down like this (indicating) like he was asleep. That was in the same room where they was. It was about 20 minutes after that before Norman Reeves left, 10 or 15 minutes.” Arthur Cato testified he was present and heard a conversation between appellant and Commie in substance the same as above, and appellant said he would get even with him (deceased); that deceased was there present in the house at the time, in the same room with defendant; and that deceased did not leave the house for some time, when appellant followed along behind him. Thus it -is seen by the state’s evidence that appellant was present and saw and heard everything that took place; that deceased was then there sitting in a chair in his plain view. Furthermore, it is shown that appellant and deceas-' ed were seen in conversation with each other after they left the house that evening, and appellant, even according to his sister’s testimony, knew of) the insults they claim deceased had been guilty of, and yet at this time appellant is not so angry because of the insults as to cause him to resent the insults. In fact, it is clearly shown by all the facts and circumstances in the case that it was at a different time and place, and after the shades of night had fallen, that deceased met his death by being struck a blow in the back of the head at the base of the brain. The court instructed the jury: “Now, remembering the foregoing definition of manslaughter, if you shall find that the defendant, either alone or acting together with one Commie Lloyd, killed Norman Reeves, by striking him with an iron pin, or by ways, means, and instrument, unknown, but if you shall find that .before such killing the defendant had been informed of insulting words or conduct of deceased towards a female relation of defendant, and if you shall find that by reason thereof the mind of the defendant was aroused to a degree of anger, rage, sudden resentment, or terror, which rendered it incapable of cool reflection, and if you shall find that the killing, if any, was upon the first meeting hf defendant with deceased after being informed of such insults, if any, or if you have a reasonable doubt as to whether the killing, if any, thus occurred, you will convict the defendant of manslaughter.” This charge is in accordance with article 1133 of the Penal Code, which reads as follows: “When it is sought to reduce the homicide to, the grade of manslaughter, by reason of the existence of the circumstances specified in. the fourth subdivision of article 1132 of the Penal Code, it must appear that the killing took place immediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the párty killing may meet with the party killed, after having been informed of such insults.”

The charge of the court on manslaughter is in strict accord with this provision of the Code, and is not subject to the above-recited criticisms, and these are the only grounds of complaint of the charge on manslaughter to be found in the motion for a new trial.

The charge on reasonable doubt is in accord with the statutory provision in that respect, and the criticism of this part of the charge is without merit. Article 785, Code, Crim. Proe.

In the first two bills of exception appellant complains of the action of the court in refusing to sustain his challenge for cause as to veniremen J. H. Ingram and Jno. C. Lee, Jr. In approving the court says : “Both of said jurors stated upon their voir dire examination that they had heard that Reeves was killed on the T. & P. track near Mineóla by a negro and was of the opinion. that some one killed Mm, but bad no opinion as to wbo killed bim and no opinion as to tbe guilt or, innocence of tbe defendant on trial.” As tbus qualified, tbe bills present no error. In addition to tbis, it is not shown by tbe record that either of these two men-served on the jury, or appellant was forced to accept any objectionable juror, and under such circumstances no error is presented.

In tbe next bill it is complained that tbe witness Willingham was permitted to testify that be found tracks leading from tbe place where deceased was found and traced these tracks in tbe direction of and near to tbe bouse of Lucy Thomas. As it was further shown by other witnesses that appellant was at tbe bouse of Lucy Thomas tbe ■night of tbe homicide, and came there between 8 and 9 o’clock, and on tbis trip admitted to Lucy Thomas that be and Commie, Lloyd bad bad a fight with deceased, and took bis money, ring, etc., the court did not .err in admitting tbe testimony.

Tbe bill relating to the testimony of tbe ■witness Alice Briscoe presents no error as approved by tbe court. Tbe court quotes the pages of tbe transcript showing what the testimony of tbis witness really waá, and by .turning to it we find be is correct.

There was no error in permitting tbe ■ county attorney to testify that tbe witness Lucy Thomas was not in any manner coerced into making tbe statement she did make. Lucy Thomas, after testifying to material facts for tbe state, testified on cross-examination that she bad been forced and coerced into making these statements, and those wbo were present at tbe time she says she was coerced were properly permitted to show that no harshness or coercion was used, or attempted to be used. Nor was tbe argument and criticism of tbis witness, Lucy Thomas, .and her testimony by state’s counsel, such that could have in any manner injuriously .affected appellant’s case. Tbe court, upon •objection being made, instructed tbe jury not to consider such matters. Appellant requested no other or further instructions in tbe premises, and in tbe absence of a request for instructions, if tbe court bad not so instructed tbe jury, tbis would not present reversible •error. The witness Lucy Thomas testified to no fact for defendant; her testimony, if true, was in support of tbe state’s case, and .any adverse criticism of her testimony by tbe state could and would only result to tbe advantage of appellant.

There are other complaints in tbe motion •for a new trial in regard to admitting testimony ; but, as no bills of exception are reserved, we cannot review those grounds.

We have carefully read tbe record, and no •error in tbe trial or conduct of tbe case is pointed out in tbe motion for a new trial, and tbe evidence amply supports tbe verdict.

Tbe judgment is affirmed.  