
    COLLINS v. STATE.
    (No. 6547.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1921.
    Rehearing Denied Feb. 22, 1922.)
    I.Criminal law <&wkey;829(5) — Charge on self-defense held to warrant refusal of requested charge.
    Instructions on self-defense held to sufficiently cover the ground in a charge requested
    by defendant that he had a right to go where deceased was and discuss their differences, and that, if deceased gave defendant reasonable apprehension of serious bodily harm, defendant could protect himself from danger, whether real or only apparent, and that the whole affair must be viewed from the standpoint of defendant.
    2. Criminal law <&wkey;829(2l) — Requested Instruction as to provocation of defendant reducing crime to manslaughter held sufficiently covered by charge given.
    Instruction that jury, in determining tlib adequacy of the provocation of defendant, should consider all the facts and circumstances in evidence, and that, if they found that defendant’s mind at the time was incapable of cool reflection, and that the circumstances were sufficient to produce such state of mind in a person of ordinary temper, the proof of. sufficiency of provocation satisfied the requirements of law, sufficiently covered defendant’s request to have the jury consider all the facts and circumstanc - es in determining whether cause existed to reduce the homicide to manslaughter.
    3. Homicide <&wkey;>390(3) — Refused charge as fo self-defense held too broad.
    In prosecution for murder, requested instruction that for the right of self-defense to obtain it was not necessary for deceased to have been armed at the time he was shot, or that defendant should have thought he was arm: ed, but that it was sufficient if defendant had reasonable apprehension that deceased might arm himself and do defendant serious bodily harm, was too broad, and its refusal was correct.
    4. Indictment and information &wkey;>9l(l) — Indictment not illegal by omitting word “unlawful” in charging that defendant with malice aforethought shot and killed deceased.
    An indictment for murder was not made bad by omitting the word “unlawful” in charging that defendant with malice aforethought shot and killed the deceased.
    5. Criminal law <&wkey;982 — Homicide &wkey;>l63(l)v— Where accused testified' and applied for a suspended sentence, admission of testimony that he was of bad reputation was not error.
    In prosecution for murder, where defendant,, in pursuance of Yernon’s Ann. Code Cr. Proc. 1916, art. 865, filed application for suspended sentence, and testified in his own behalf, the admission of testimony that he was of general bad reputation was not error.
    6. Criminal law <&wkey;!038(3), 1056(1) — Where request was not made limiting consideration of evidence that accused was of bad reputation, and no exception was taken, it cannot be considered on appeal.
    In prosecution for murder, where evidence of defendant’s general bad reputation was admitted, in absence of his Request to have consideration of that evidence limited to a specific purpose, or to take exception to a general charge for its failure to limit the purpose for which the evidence was admitted, the question cannot be raised on appeal.
    
      On Motion for Rehearing.
    7. Homicide <§=^300(3)—Instruction on self-defense held correct.
    In prosecution for murder, where defendant claimed that decedent attempted to seize defendant’s rifle with purpose of shooting defendant, instruction that, if jury believed deceased made an attach which, from its character, relative strength of the parties, and defendant’s knowledge of disposition of deceased, caused him to have reasonable expectation or fear of death or serious injury, and that, acting under this expectation, he killed deceased, to acquit him, held not too restrictive of defendant’s rights.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Sim Collins was convicted of murder, and he appeals.
    Affirmed.
    See, also, 89 Tex. Cr. R. 341, 354, 230 S. W. 1004, 1005.
    V. A. Collins, of Dallas, Cade Bethea and S. P. Hill, both of Livingston, and Chas. L. Black, of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Polk county of the offense of murder, and was sentenced to 15 years in the penitentiary.

No question of the sufficiency of the testimony is raised in the motion for new trial, and we forego any extended statement of the facts, contenting ourselves with saying that they appear to support the judgment.

Appellant requested a special charge, in substance telling the jury that he had a right to go to the field where deceased was at the time of the homicide, and to discuss their differences, and remonstrate against the conduct of deceased and his children, and that, jf deceased did anything at said time which gave rise to a reasonable apprehension of serious bodily harm on the part of appellant, the latter had the right to protect himself from danger, whether same was real, or only apparent, and that the whole affair must be viewed from the standpoint otf appellant. Reverting to the main charge of the court, we find the following as part thereof:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing’ his assailant.”
“You are further charged that defendant had a legal right to go to the field where deceased was plowing, peaceably to discuss their differences, and to remonstrate with deceased about what defendant had heard—that deceased and his children had said or done about defendant, or his children—if any, and enter a peaceful protest against a continuation of such conduct on the part of the deceased and his children, if any.”

Again, in that part of the charge on the law of self-défense based on threats, the court below told the jury in two places that the transaction must be viewed from appellant’s standpoint, and that, if deceased did some act which reasonably indicated to the mind of appellant, as viewed from his standpoint, that a threatened attack had commenced to be executed, then 'appellant would be justified in shooting to kill deceased. These charges we think fully covered the ground contained in the special charge under discussion.

Complaint is also made of the refusal of a special charge authorizing the jury to consider all the acts and conduct of deceased toward appellant in determining whether adequate cause existed to reduce the homicide to manslaughter. The charge of the trial court contains the following:

“Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation (if any) to consider in connection therewith all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind, in a person of ordinary temper, then the proof as to the sufficie*ncy of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in evidence in determining the condition of the defendant’s mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition.”

This seems to fully cover appellant’s contention that he was entitled to have the jury to consider all the facts and circumstances in determining whether adequate cause existed, and appears to deprive appellant of just ground of complaint.

Appellant’s special charge No. 3 is as follows:

“I charge you, gentlemen of the jury, that, in order for the right of self-defense to obtain, it is not essential that deceased should have been armed at the time he was shot by defendant. or defendant should have thought he was armed, but it is sufficient if defendant had a reasonable apprehension that deceased might arm himself and do defendant serious bodily harm, and, acting upon such apprehension of danger to himself, defendant shot and hilled deceased.”

The proposition announced is too broad, and we cannot sanction same as a correct rule of law.

It is also contended that, because same omitted the use of the word “unlawful” in charging that appellant, with malice aforethought, shot and killed A. Wetz, the indictment was bad, and the motion in arrest of judgment should have been sustained. The authorities seem against this contention. Thompson v. State, 30 Tex. App. 325, 17 S. W. 448; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358.

Objection was made to the testimony of certain state witnesses to the bad general reputation of appellant. We have examined this bill, and its contents are so vague as to not apprise us of what character of general reputation said witnesses testified to. “General reputation” is a broad expression. Appellant having taken the witness stand in the instant trial, his general reputation for veracity was an issue. If the complaint in the bill was specific enough to show that the evidence of said witnesses was as to the bad reputation of appellant as not being a peaceable, law-abiding citizen, we would still be under the necessity of holding against appellant’s contention. The evidence was admissible. Appellant filed an application for a suspended sentence, in which case our statutes specifically authorize proof on the issue of general reputation in order to enable the jury to intelligently decide whether to recommend such suspended sentence. Article 865, Vernon’s O. C. P., and authorities collated.

In his presentation of the case to this court appellant seems to further complain becaus'e of the failure of the charge to limit the purpose for which said evidence was admitted. It is the duty of one who desires that evidence admissible for a specific purpose be limited by the charge to the jury’s consideration for that particular purpose to' present a request to the judge for such limitation, or take an exception to the general charge for its failure to limit the purpose for which such evidence was admitted. An examination of the record in the instant case shows that no exception was taken to the charge for its failure to limit the purpose for which the evidence of said three witnesses was admitted, nor was there any charge requested upon said point, and we are compelled to hold that, in this condition of the record, appellant’s contention in regard to this matter is not properly before us for consideration.

We have examined carefully each of the matters presented by appellant, and, finding ourselves unable to agree with his contentions, and finding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant has filed a motion for rehearing upon various grounds, to only one of which we will advert.

Appellant, armed with a rifle, went to the field where deceased was at work; deceased being unarmed at the time. Appellant claims that, after discussing some differences between them, deceased seized his rifle, and undertook, as he (appellant) believed, to get possession of it with the purpose of shooting appellant with it. Applying the law of self-defense the trial judge gave the following charge.

“If from the evidence you believe the defendant killed the said A. Wetz, 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.”

It is the contention of appellant that this charge was too restrictive of his rights, and did not present his defensive theory pertinently to the jury; that no attack in the ordinary sense had been made upon him by deceased, but that he had a right to kill because appellant believed deceased was about to- disarm appellant and kill him with his own gun. We are unable to agree with the contention that the charge quoted does not sufficiently present the defensive theory. If it appeared to appellant that deceased was simply undertaking to disarm him in order to prevent appellant from shooting deceased, then, unquestionably, appellant had no right to kill. If it appeared to appellant that deceased was undertaking to disarm him with the ultimate purpose of killing appellant .with his own gun, there is no question but that an attack had already commenced, and it occurs to us that the court pertinently told the jury that, if, “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 deceased,” it caused appellant to have a red*-sonable expectation or fear of death or serious bodily injury, and he killed deceased under such circumstances, he should be acquitted. The jury doubtless understood the issue, and could not have been misled by the charge of the court to the detriment of appellant. Appellant (who was the only eyewitness) testified that deceased was undertaking, as he (appellant) thought, to. disarin him, and that appellant believed if deceased was successful in this he would use the gun to kill him. We have not been able to bring our minds in accord with the proposition urged by appellant in his argument on rehearing that the facts thus stated did not raise the issue of an actual attack, but that appellant was acting upon the appearance of danger. According to his testimony, the attack had already commenced, and, if the manner and the character of it was such, considering the relative strength of the parties, that it reasonably appeared to appellant that the ultimate purpose of the attack was to disarm and kill him, his right of self-defense was complete, and the jury were so instructed.

Believing that our former disposition of the case was the proper one, the motion for rehearing is overruled. 
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