
    DUNNE v. STATE.
    (No. 7520.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.
    On Motion for Rehearing, June 25, 1924.)
    1. Criminal law @=>631(11) — Failure to furnish defendant copy of venire list before calling case for trial held not error when waived.
    Failure to furnish defendant, who was on bail, copy of venire list, before his case was called for trial, held not error, where court offered to. postpone the trial until the clerk could make and furnish such a list, but defendant’s counsel waived the furnishing thereof.
    2. Criminal iaw @=>1091 (I I) — Bills of exception in question and answer form not considered.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 846, bills of exception, in question and answer form, cannot be considered, where none of them show that the trial judge deemed it necessary that they be in such form to make clear any question involved.
    3. Criminal law @=>449(2) — Eyewitness’ testimony as to what he thought were deceased’s purposes toward defendant held inadmissible.
    In a murder 'prosecution, an eyewitness’ testimony that he thought that deceased was about to make- a deadly attack on defendant, and had a pistol, etc., held inadmissible as mere secondary ideas of deceased’s purposes, intentions, and future acts, of which a more accurate idea was obtainable.
    4. Criminal law @=>675 — Rejection of defendant’s testimony as to belief that deceased was dangerous man held not error.
    In a murder prosecution, where defendant testified that he knew deceased'to be a dan-geroús man, and believed him to be a man who would execute a threat made by him, the court did not err in rejecting his further testimony that he honestly thought and believed deceased to be a dangerous man.
    5. Witnesses @=>386 — May be impeached by proof of omission of statement from former statement.
    A witness may be impeached by proof that he omitted certain statements made by him in his testimony from a former written statement as to the same matter.
    6. Criminal taw @=>823(17), 829(21) — Charge on adequate cause for killing and refusal of requested charge held not' error in view of another charge given.
    In a murder prosecution, a charge defining adequate cause as any acts, or words and acts, by deceased, or any circumstance capable of creating sudden passion, such as anger, rage, etc., rendering the mind incapable of cool reflection, held not too restrictive, in view of a special charge that proof of facts and circumstances, sufficient to produce a state of mind incapable of cool reflection, in a person of ordinary temper, was sufficient proof of adequate provocation; nor did the court err in refusing a special charge almost identical with that given.
    7. Criminal law @=>823(9) — Charge on manslaughter held not error as requiring defendant to prove mitigating circumstances, in view of another part of charge.
    In a murder prosecution, a charge to find defendant guilty of manslaughter, if the jury believed hie mind was laboring under such a degree of anger, rage,, sudden resentment, or terror, produced by adequate cause, as to render it incapable of cool reflection, held not erroneous, as placing on defendant the burden ^>f proving the mitigating facts and circumstances, where the jury were -told in another part of the charge that, if they had a reasonable doubt as tc whether the offense was murder or manslaughter, they should find him guilty of no higher offense than manslaughter.
    8. Homicide @=>300(7) — Charge on retreat held sufficient without specific application to question of apparent danger.
    A charge that one unlawfully attacked need not retreat to avoid the necessity of killing his assailant held sufficient, as against the objection that it was inapplicable to the proposition of apparent danger, there being no suggestion therein that defendant should have resorted to other means to avoid the killing.
    
      9. Homicide @=>300(6)— Charge held not erroneous as emphasizing self-defense against real danger only.
    A charge that defendant was justified in killing deceased, if it reasonably appeared to him from deceased’s acts, or words coupled with acts, viewed from defendant’s standpoint, that it was his purpose to murder or inflict serious bodily injury on defendant, and that he had the same right to defend himself against such apparent danger as if it were real, did not unduly emphasize self-defense, as against real danger only.
    10. Criminal law @=>806(1) — General expressions need not be repeated in each paragraph of charge.
    The court need not continually repeat general expressions in each paragraph of a charge, which must be looked to as a whole..
    11. Homicide @=>300(7) — -Failure to instruct jury on defendant’s right to continue shooting held not error.
    Where shots fired by defendant, who pleaded self-defense, were in quick succession, both took effect, the pistol was an automatic, and defendant testified that he suposed he- fired continuously, the court did not err in failing to instruct the jury on defendant’s right to continue to shoot.
    12. Homicide @=>341 — Failure to submit law of uncommunicated threats held of no material injury.
    In a murder prosecution, evidence that defendant provoked the difficulty with intent to cause deceased to make a demonstration, of which he might take advantage, to kill him, held so strong that the court’s failure to submit the law of uncommunicated threats was oi no material injury.
    13. Homicide @=>341 — Provocation considered in determining whether omission of law of uncommunicated threats from charge is reversible error.
    While the question of provoking the difficulty would be for the jury, under appropriate instructions, the facts, when before the appellate court, must be considered in determining whether omission of the law of uncom-municated threats from the charge was so materially erroneous as to cause a reversal under Vernon’s Ann. Code Cr. Proe. 1910, art. 743.
    14. Criminal law @=>720(9) — References in argument to testimony as to defendant’s threat to kill deceased held not prejudicial error.
    In a murder prosecution, argument referring to testimony that defendant, when told by witness that deceased objected to his putting in a fence between their land, said that he ought to kill deceased, held not so inflammatory or prejudicial as to call for reversal.
    On Motion for Rehearing.
    15. Criminal law @=>811(1) — Improper to charge on particular facts or specific parts of testimony.
    It is not proper to single out and charge on particular facts or specific parts of the testimony.
    16. Criminal law @=>673(2) — Court need not charge on specific evidence not introduced by state for particular purpose, and likely to prejudice defendant.
    The trial court need not charge on any specific evidence, unless introduced, by the state for a particular purpose, and likely to be improperly appropriated by the jury against defendant.
    17. Criminal law @=>673(1) — Not error to refuse charge on uncommunicated threats, where purpose for which admitted is not limited in main charge?
    While uncommunicated threats by deceased are admissible on issue as to who was the aggressor, and the court must charge specifically on communicated 'threats, in view of Pen-. Code 1911, art. 1143, making such threats a ground of justification under certain circumstances, refusal of a special charge on uncommunicated threats is not error, where the court’s main charge places no limitation on the purpose for which such threats were admitted in evidence.-
    18. Homicide @=>300(3) — Charge that threats -do not justify killing, unless deceased manifested intention to execute them, held reversible error.
    In murder prosecution, charge that threats do not justify offense, unless deceased manifested intention to execute them, held reversible error, not being connected with other portions of charge on defendant’s right to act on apparent danger.
    Appeal from District Court, Coryell County; J. It: McClellan, Judge.
    W. G. Dunne was convicted of murder, and appeals.
    Reversed and remanded.
    McClellan & Cross, of Gatesville, for appellant.
    R. G. Storey, Asst. Atty. Gen., fo-r the State. )
   LATTIMORE, J.

Appellant was convicted in the district court of Coryell county of murder, and his punishment fixed at 15 years in the penitentiary.

Appellant and deceased were near neighbors. Appellant moved out of a house in December, and in the latter part of said month deceased moved into said promises, which he had rented, said house was situated on the west side of a road, and appellant moved Into another house on the east side of said road, and apparently not more than a couple of hundred yards from the one occupied by deceased, his wife and child. There had, without dispute, been bad feeling between the men prior to this time. Appellant testified that in September or October preceding deceased had come into a stubble field and had begun plowing therein; that he (appellant) took a shotgun and went out into the field, and stopped at a point some 20 feet distant from where deceased was, and ordered him to leave the field, which he did. It seems also true that, prior to said occurrence, appellant claimed that deceased and one Wilson had misrepresented a difficulty had between him and another man over some question of rent. On the day appellant ordered deceased out of said field, as the two men weire walking away, appellant continued to charge deceased with his supposed participation in the spreading of the story about the rent trouble. Deceased denied having had anything to do with it, but appellant told Mm he had traced it to him' and Wilson. When deceased was getting ready to move into the premises occupied by him at the time of this1 homicide, he seems to have had several conversations with appellant regarding same. Appellant had a horselot, or some kind of inclosure,' which he first proposed ,to leave, and had a water trough, which he proposed to leave at the well on the place upon which deceased was moving, if deceased would let him water ibis stock at the well. This deceased declined to do, because of the way appellant had treated him about the plowing aboye mentioned. Appellant then concluded to tear down and remove the horse lot referred to, and also carry away the water trough. Thereafter he and deceased met several times, but do not seem to have spoken to each- other. There was no fence between the land rented by deceased and that of appellant, and at some time shortly before this homicide appellant began building a fence through the field apparently. He testified that',' while digging post holes for this fence, he saw deceased get on his horse, and that he rode dotVn into the field and made a circle about appellant some 25 steps away and then rode off, neither man speaking to.the other. Appellant testified that he met deceased in the road, and that when deceased saw him coming he stopped, whereupon appellant drove around him, neither of the men- speaking on this occasion. On the day of the homicide-both men seemed to have been away from home, and when appellant returned he said that he found the mules of deceased in his field. He seems to have taken no steps to remove them. Later, deceased came home and went down into appellant’s field, and, after some trouble, drove the mules out into the road and started them toward his house. As deceased, following the mules, passed the house of appellant, the latter walked out to the fence next to said road. .He had put his pistol in his pocket. The place where appellant stood inside his fence was some two or three feet higher than the ditch, on the roadside, left by -the recent working of said road. There is a dispute-in the testimony as to which side of said road deceased was on¡ His wife, who viewed the occurrence from her house, testified that deceased was walking along in the ditch next to appellant’s fence, and that, when he reached the point where he was accosted by appellant, she could see that some words passed between the men, and that appellant pulled out his pistol and shot deceased twice. Appellant, his wife, and his witness, Keenum, indicate that deceased was going north toward Ms home, traveling on the west side of said road, app’ellan-t’s house being on the east side. Appellant and Keenum say substantially that, when deceased reached a point opposite appellant’s house, the latter walked out to the fence and told deceased -that he must keep Ms stock out of his field, and, if he did not, appellant was going to phone the constable to put them up* The two men began to make statements more or less recriminatory until, as claimed by appellant and Keenum, deceased remarked, “Damn you, if you want trouble, or if you want to have a fuss, you can have it now,” and started across the road toward appellant. Appellant said that deceased was about 25 or 30 feet from Mm when he started toward him.' When the shooting took place ’ deceased was near the east side of -the road or in ithe ditch just east thereof. Appellant used an automatic pistol, firing continuously, as he said, and very close together, as stated by the wife of deceased. Both bullets entered the right side of deceased, near the arm pit. Appellant then walked to his house and told' his- wife to be calm; that he had to do it; and. shortly thereafter telephoned news of the trouble. Keenum went to deceased, and, aided by the latter’s wife, assisted in carrying him to his home, where he died in something like an hour. There was no weapon of any kind found upon deceased. 'He was in his shirt sleeves.

Appellant’s bills of exception Nos. 1 and 2 complain of the action of the learned trial judge in regard to the venire. The sheriff’s return on the sp-ecial venire facias was filed with the district clerk on Saturday, August 5th, before the case was set for trial Monday, August 7th. Appellant was on hail. The recoi’d shows that he obtained no copy of the venire list before his case was called for trial, but, when he objected going to trial until he had been furnished with a list of the veniremen, the court offered to postpone the trial until the clerk could make and furnish such list, but appellant’s counsel waived the furnishing of same. We see no error in this procedure.

The state, through its Assistant Attorney General objects to the consideration of appellant’s bills of exception Nos. 3 to 8, because in question and answer form. The objection must he sustained. Attention is again called to article 846, Vernon’s C. C. P., from which we quote:

“Provided, that such stenographer’s report when, carried into the statement of facts or bills of exception, shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved.”

Many cases have been decided by this court in which it has declined to consider bills of exception which are violative of this statute. The bills of exception in question are in question and answer form, and none' of them reflect the fact that it was deemed necessary, by the learned trial judge, that they be in such form, in order to make clear any question or issue involved. If considered, however, no error would appear, because none- of said bills of exception show that an objectionable juror, as that term has been defined by this court, was forced upon appellant. See Maines v. State, 35 Tex. Cr. R. 113, 31 S. W. 667; Keaton v. State, 40 Tex. Cr. R. 145, 49 S. W. 90; Connell v. State, 45 Tex. Cr. R. 142, 75 S. W. 512.

Keenum, an eyewitness, put on the stand for the defense, swore that, just before appellant shot 'deceased, the latter said: “Damn you; if you don’t want to get along with me, you don’t have to;” and started across the road toward appellant. The witness was then asked: “What did you think; what impression did this make on your mind?” Objection by the state was sustained. If permitted, Keenum would have sworn:

“I thought deceased was about to make a deadly attack upon the defendant, and was impressed that deceased had a pistol, and thought I could see the imprint of same under his shirt, and thought he,.was going to draw a pistol and shoot the defendant.”

In the same bill of exceptions, referring to the movements of deceased before he went to drive his mules out of the field, this witness was also asked: “What did you think when you saw him going across the road to the field?” His answer would have been:

“I thought when I saw deceased going across to the field that he was armed. I thought, when he left the pump and went in the house, that he went in to get a gun, and I was impressed that I could see the wind blowing against something underneath his shirt, and I thought it was a pistol.”

In qualifying this bill of exceptions, the learned trial judge states that he offered to let witness relate all that he saw or beard, but that tbe other testimony of said witness negatived the proposition that he saw or heard anything which would justify or produce the thoughts or impressions to which he offered -to testify. Both questions were objectionable. Neither answer was admissible. That part of it, relating to the fact that witness saw an imprint of something under the shirt of deceased, might be given in answer to a proper question, and that from -the size and shape of same it appeared to appellant that deceased bad a pistol, but we know of no well-considered authority holding that conjectural opinions of future occurrences, based on no greater development of facts than here appears, are admissible. Appellant cites the case of Latham v. State, 75 Tex. Cr. R. 575, 172 S. W. 797, as authority. In our opinion the conclusion reached in said case is not supported by any of the authorities therein cited, even though the facts of said case much more strongly support the .holding of the court therein than do the facts in the instant case merit tire application of such principle. In said case a witness named Bynum said that, just before tbe accused fired, deceased threw Ms left band up and dropped bis right hand down, and when his hand got about there it looked like the gun fired. Deceased threw his right hand do-wn to about his belt and threw bis band to his side at the same time the lady drew the gun. The witness was asked: “What did you -think he was doing with his right hand?” If permitted,witness would have answered that the impression on his mind was that deceased was attempting to draw his pistol. The Latham Case cites and quotes from Thomas v. State, 40 Tex. 43; Cochran v. State, 28 Tex. App. 431, 13 S. W. 651; and Harrison v. State (Tex. Cr. App.) 25 S. W. 284. Each of said cases, on its facts, shows that a witness, himself present and an actor, who had given evidence of some act of his own, as part of the res gestse of the transaction, was permitted to explain why he so acted. Digressing, we observe that Mr. Branch in his Annotated P. C. § 92, cites many authorities holding that where a detailed act, etc., is in evidence, any other act, declaration, etc., necessary to make it fully understood, or to explain same, may also be given in evidence. The Latham Case cites and quotes from Navarro v. State, 24 Tex. App. 381, 6 S. W. 542. The question under discussion by Judge Hurt therein was the admissibility of the opinion of a woman as to what caused the deáth of the foetus in an abortion case. Judge Hurf held her opinion inadmissible. We reproduce the quoted part of said opinion:

“Assuredly, if one receive a blow which leaves an immediate marked impress, that is appreciable by the senses of him who receives it, or that is in a like manner made sensible to bystanders, neither the, injured party nor the onlooker need be an expert to qualify him to testify that the injury received was the result ,of the blow given.”

If we understand -this quotation, it appears against, rather than in support of, tbe pro-position that one may be permitted to state what he thought another was going to do who had started across the road toward a third person who was some 25 or 30 feet away. We entertain the same view of the proposition quoted from Mr. Wharton in the Latham opinion, same being as follows:

“Impressions which are primary, and for which no substituted proof is conceivable, can be put in evidence, whereas an impression which is merely a secondary idea of that of which a more accurate idea is obtainable cannot be received.”

We deem the latter part of this quotation specially applicable in the instant case. Kee-num could not give testimony to an impression which was but a secondary idea of the purposes, intentions, and future acts of deceased. The quotations in the Latham Case, supra, from McKelvey on Evidence, from Mr. Chamberlayhe, and Mr. Wigmore, but relate to what is a well-settled rule in this state, i. e., that a witness who undertakes to testify as to emotions, manners, physical appearances, mental and psychological conditions, which And expression in ways difficult, if not impossible, to describe in detail, may give testimony as to his opinion in regard to such matters. Numerous instances and decisions illustrative will be found in Branch’s Annotated P. C. §§ 131, 132. Hie Latham Case does not seem supported by its authorities, and while the question discussed was whether the witness might state his opinion as to what deceased was doing with his hand, both the question asked and the expected answer are dangerously near the border line referred to by Mr. Wharton in the quotation above.

Where would the rule contended for by appellant herein lead us? Take the second question, set out in, his bill of exceptions under consideration, and it affords us a partial answer to the question. T-ieenum was asked what he thought when ■ he saw deceased going across the road to the field. This related to a time before deceased went down to drive the mules out. The desired answer would have been: “I thought he was armed. I thought when he left the pump and want in thei house, he went to get a gun.” It would not seem to require much argument to demonstrate the inadmissibility of this opinion. We regard this as consistent, however, and if the witness could be permitted to testify that he thought deceased was going to make a deadly attack on appellant when he started across the road toward him, we could see no good ground why he might not further state that 30 minutes before he hadi seen deceased go into'his house, and thought then that he went to get a gun, and that an hour before he saw deceased going along the road leading toward appellant’s house, and then thought he was going to appellant’s place to kill him. The state has tlie same right to opinion testimony as the defense. One who asserts that he shot on appearances of danger, as viewed from his standpoint, might find himself confronted by an array of witnesses who were present at the shooting, and each of whom would then be permitted to swear that he saw the occurrence, and that, in his opinion, the deceased was doing absolutely nothing indicating a purpose to attack or harm the accused. Soon the rules requiring that witnesses state facts would be abrogated, and cases be tried on a constantly broadening rule of conjecture and opinion. While we doubt the soundness of the Latham Case, supra, and the Mason Case, 79 Tex. Cr. R. 169, 183 S. W. 1153, which follows and cites the Latham Case, we have no .doubt as to the correctness of the rejection of the offered testimony in the instant case. Campbell v. State, 10 Tex. App. 560; Lumbkin v. State, 12 Tex. App. 341; Drake v. State, 29 Tex. App. 265, 15 S. W. 725; Skaggs v. State, 31 Tex. Cr. R. 563, 21 S. W. 257; Wilson v. State, 37 Tex. Cr. R. 64, 38 S. W. 610; Swann v. State, 92 Tex. Cr. R. 153, 242 S. W. 738.

Appellant testified in his own behalf that he knew deceased! to- be a dangerous man, and that he believed him to he a man calculated to execute a threat which he had made, and also that he took seriously a threat which deceased had made to him. These facts being true, it was not erroneous for the court below to reject appellant’s proffered statement that he honestly thought and believed deceased to h© a dangerous man.

Keenum made a written statement of the facts on the night of the homicide. As .part of same, he stated that he was positive that said statement contained all that deceased said and did, and all that appellant said and did at the time of the fatal difficulty. When a witness herein, he'testified that deceased cursed appellant and started across the road toward him. Asked if he told these facts when he made the written statement referred to, he said he did not remember, and, in another part of his testimony, said he was not asked about these things. There was no error in, admitting the written statement for purposes of impeachment. Same showed no mention of any such statement or action by deceased. The rule seems well settled that a witness may be impeached by proof that he now states something which, in a former statement relative to the same matter, he omitted. Lewis v. State, 15 Tex. App. 661; Hyden v. State, 31 Tex. Cr. R. 403, 20 S. W. 764; Mealer v. State, 32 Tex. Cr. R. 107, 22 S. W. 142; Gonzales v. State, 35 Tex. Cr. R. 35, 29 S. W. 1091, 30 S. W. 224; Campos v. State, 50 Tex. Cr. R. 292, 97 S. W. 100.

Appellant has many objections to the charge of the learned trial court, the objections being fully reserved, and special charges being asked in each instance. We find ourselves under the necessity of not quoting a,ll that was said because of the needless length to which this opinion would be extended. We agree with neither the objections to the court’s charge, appearing in bill of exceptions No. 14, nor the complaint of the refusal of a special charge in the bill No. 15. The Lewis Case, 89 Tex. Cr. R. 345, 231 S. W. 113, cited, criticizes a charge somewhat similar to that given because it omitted to tell the jury that they must believe, “beyond a reasonable doubt,” that the killing was up-on malice aforethought. The court’s charge herein has no such omission.

As part of his charge on adequate cause the trial court gave the following:

“Within the meaning of the expression ‘adequate cause’ the following is deemed adequate cause: Any act or acts done by the deceased, or word or words spoken by the • deceased, coupled with any act or acts done by him. or any condition or circumstance which is capable of creating, and does create, sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection’ is adequate cause; and where there are several causes to 'arouse passion, although no one of them would constitute adequate causv., yet all of the causes combined might be sufficient to do so.”

Appellant excepted to this, and asked the following special charge, which was given:

“Gentlemen of the Jury: 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, 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 sufficiency 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 defendant’s mind at the time of the alleged killing, and the adequacy of the cause, if any, producing such a condition.”

This we think sufficient to bring into review by the jury all the facts and circumstances in evidence in determining the adequacy of the cause. We do not think there is any merit in the complaint now aimed at the court’s main charge as being too restrictive in this regard in view of the giving of said special charge, nor in refusing a special charge almost identical with the one given.

Bills of exception Nos. 19 to 24 do not seem to us to present any question calling for discussion.

The charge applying the law" of manslaughter to the facts is, in part, as follows:

“Now, bearing in mind the foregoing explanations, definitions, and instructions, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, W. G. Dunne, in the county of Corvell and state of Texas, and on or about the 19th day of February, A. D. 1922, did then and there unlawfully and voluntarily kill A. W. Garren, by then and there shooting him, the said A. W. Garren, with a pistol, as alleged in the in.dictment, and if you further believe that at the time he did so his mind was laboring under such a degree of anger, rage, sudden resentment or terror as to render it incapable of cool reflection, and you further believe that such condition of the mind, if any, was produced by an adequate cause, as that term has hereinbefore been defined to you, then you will find the defendant guilty of manslaughter, and assess his punishment at confinement in the penitentiary for not less than two years nor more than five years, in your discretion.”

Complaint is made that this places on appellant the burden of proving tbe mitigating facts and circumstances. In another part of the charge the court told the jury that if they found appellant, guilty of some degree pf homicide, but had a reasonable doubt as to whether the offense was murder or manslaughter, they should give the appellant the benefit of the doubt, and find him guilty of no higher grade of offense than manslaughter. We do not think the main charge open to the objection urged by appellant, nor are we able to agree to the soundness of the proposed special charge, which presents a great departure from established charges on the subject. We see nothing in Moore v. State, 88 Tex. Cr. R. 624, 228 S. W. 218, contrary to our views thus expressed. We have examined the complaint of the charge on self-defense and the special charge offered as corrective thereof as appear in bills Nos. 27 to 29, but do not think they present any meritorious contention.

We do not agree with appellant that the charge of the trial court on self-defense was too abstract, but, on the contrary, think it sufficient. We have stated the facts above. Appellant testified that deceased cursed him and started across the road toward him, and that as he came he made a move to his side. Appellant saw no pistol. He said deceased threw his hand to where appellant thought he saw the imprint of a pistol under his shirt. He could not say whether deceased put his hand under his shirt or not, nor was there any evidence from the witness Keenum, who had apparently the same opportunity that appellant did to observe the movements of deceased, which would appear to indicate that deceased was making any offensive movements with his hand or attempting to draw any weapon.

There is an exception to the refusal of the court to change his charge on the question of retreat so as to make same applicable to the proposition of apparent danger. The charge as given told the jury that one unlawfully attacked was not bound to retreat in order to avoid the necessity of .killing his assailanf. We find nothing in the court’s charge in any way suggesting that the accused should have resorted to, other means to have avoided the killing, and, in our opinion, the charge given was sufficient.

The court’s charge on self-defense contained the following:

“If, therefore, the defendant in this case killed the deceased, he was justified in, doing so, if he did do so to prevent deceased from murdering him, or inflicting serious bodily injury upon him, the defendant, provided it reasonably appeared to the defendant by the act, or by the words coupled with the acts of deceased, that it was the purpose and intention of deceased to murder the defendant, . or to inflict serious bodily injury upon him, the defendant, viewed from the standpoint of the defendant; and provided the killing took place while the deceased was in the act of committing such murder, or of inflicting such injury on the defendant, or after some act done by the deceased showing evidently an intent on his part to murder the defendant, or to inflict serióus bodily injury upon him, the defendant, viewed from the standpoint' of the defendant; and if it reasonably appeared to the defendant, from the circumstances of the case, that danger existed, he ha<j the saíne right to defend against such apparent danger and to the same extent that he would have was the danger real, and this would be true, even though there was no real danger. And if you have a reasonable doubt as to whether or not the killing took place under such circumstances, it will be your duty to give the defendant the benefit of such doubt, and acquit him, and say by your verdict not guilty.”

In our opinion this fairly presented the issue of self-defense, both against real and apparent danger, and is not subject to the criticism that it unduly emphasized self-defense as against real danger only. Nor do we think under the facts' of this case that the charge of the court on threats was too restrictive. In xiaragraph 12 of the charge appears the following:

“An attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury, but in this connection you are instructed that it is not necessary to the right of self-defense that the danger did actually exist. If it reasonably appeared to the defendant, from the circumstances of the case, that the danger existed, he, thus threatened with such apparent danger, had the same right to defend himself against it, and to the same extent as he would have were the danger real, and, in determining whether there was a reasonable belief that danger did exist, the appearances should be viewed from the standpoint of the defendant alone, and from no other standpoint.”

Also, in the charge on self-defense above quoted, the court used the expression:

“Provided it reasonably appeared to the defendant by the acts, or by the words coupled with the acts, of deceased, that it was the purpose and intention of deceased to murder the defendant, or inflict serious bodily injury upon him,” etc.

The rule is well understood that the charge, as a whole, must be looked to, and that it is not necessary that the court continually repeat general expressions in each paragraph of the charge.

The shots fired by appellant were-in quick succession. Both took effect. The pistol was an automatic, and appellant testified that he supposed he fired continuously. There was no error in the charge in failing to instruct the jury on appellant’s right to continue to shoot. Woodward v. State, 54 Tex. Cr. R. 89, 111 S. W. 941. The cases cited by appellant are on facts so different from those here as to make them not authoritative. A different question might arise where there was a shooting, and an interval in which the jury might' reasonably have concluded a change of attitude on the part of the accused and a different right to have arisen. No such situation is here presented.

There was evidence of uneommunicat-ed threats, and the learned trial judge failed and refused to charge that such evidence could be considered by the jury in determining who bogan the difficulty. An exception was leveled at this omission, and a special charge asked, which was refused. The question arises, .was this error, and, if so, was it such error as to call for a reversal of this case. The law applicable to any case turns on the facts of that individual case. 'We have set out the facts at some length above. We have here the situation of a man who puts an automatic pistol in his pocket and walks •out to a road upon which another man is going toward his home, the two men not being on speaking terms. c Appellant called deceased and told him to keep his stock out of his field. We quote from appellant’s testimony:

“When I walked out there, Alex was still walking along, and I told him I wanted him to keep his stock out of my field, and he said he would. He did not say that they had gotten out. Alex and his wife had been away from home that day. I don’t know whether the mules had got out while he had gone or not. I suppose they had. He said he would keep them -out; that they had gotten out. I told him, then, I believed that they had gotten out. At the time I was talking to Alex there, at my place, I was about 25 or 30 feet of him. I then told him that I wanted to treat him white about it—I have forgotten the exact words, whether I said white or right—and that if he didn’t, the next time I was going to phone for Bill Edwards to come and get the mules and put them up. I told him I didn’t want any trouble, and he said, ‘God damn you, if it is trouble you are hunting, you can get it.’ When he made that remark he was 25 or 30 feet from me. E[e said, ‘God damn you, if it is trouble you want, you can get it.’ And when he said that he started towards me. He had this right hand over here on his side. I saw the pistol, or whatever it was, still sticking out. It was something in the shape of a pistol still sticking out there. I don’t know about seeing the imprint of the handle and barrel, about sticking out there. Q. How far up did the pistol handle go when you saw it? A. Five or six inches, I believe. The handle was crooked over so he could get it ,by his right hand—crooked to the front. He had gone about three or four steps before he put Ms hand there and grabbed at.the impression. I can’t say whether he put his hand on the inside oí, his shirt or not. He couldn’t have very well gotten it out by just grabbing hold of the shirt. I dop’t remember of him going inside of his shirt and getting his hand like that (counsel indicated). I remember he made a moVe like that.. I could not see whether he got his hand on anything. I don’t recall much about whether his hand covered up the handle or not. 'He had gotten three or four steps before his hand went for the pistol. I don’t remember whether, after he got three or four steps, whether he continued to hold his hand there until he got up within three or four feet of me. I know he had both of them there. I don’t know exactly whether he had his left hand down by his side or not at that time. When he got within three or four feet of me he still had his hand there, but he never had got it out; he was trying to get it out of his britches, or whatever he had in there. I think he pulled his shirt-tail up. He did not put it plumb out over the handle of what I saw there. He never did get it out over it. I never did see it.” ,

The entry of the two bullets fired by appellant into the right side o-f deceased, near Ms right arm pit, has been mentioned. One of them, which entered between the fourth and fifth ribs under the right arm, lodged under the skin,, 2%, inches above the left hip, passing between the ninth and tenth ribs. The other entered below the point of the right shoulder blade. We have stated those facts as illustrating our view that it was a most serious question as to whether appellant had any right to assert self-defense, even if deceased started at him. What caused deceased to go toward appellant? What was appellant’s object in putting his pistol in his pocket, and walking out to the road, and standing on a bank inside his fence several feet higher than the ground on the outside, and accosting a man toward whom he admits he had hard feeling, and who was not on speaking terms with him, and demanding that he keep his stock out of his field or he would telephone the constable? Deceased had no weapon. According to Keenum, appellant shot deceased when the latter was 8 or 10 feet from appellant, on the'other side of the road, and had drawn no weapon or exhibited any. These facts so strongly support the proposition that appellant provoked the difficulty with intent to cause deceased to make a demonstration, of which he might tajee advantage and kill him, as that we deem the failure of the trial court to submit the law of uneommunicated threats as being of no material injury. Carver v. State, 67 Tex. Cr. R. 116, 148 S. W. 746.

While the question of provoking the difficulty would be, one for tbe jury, under appropriate instructions, tbe facts are before tMs court, and must be considered by. us in determining whether or not the omission of a matter in the charge would be deemed of such materially erroneous character as to cause us to reverse the case under article 743, Vernon’s C. C. P. We have come to the conclusion that the failure to give the charge was not error for which we should reverse.

There are a number of bills of exception to tbe argument.' All have been considered. It was in testimony that appellant went to Gatesville to hear the arguments in the Twyman Case, and that on the way back a witness, who testified herein, said that he told appellant that deceased objected to Ms putting in the cross fence between them. According to tMs witness appellant then said that he ought to kill the “s-n of a b-h.” We do not think the argument in which an apparent reference is made to this testimony, and the fact that appellant heard the argument in the Twyman Case, or any o£ the other arguments objected to, of that inflammatory or prejudicial character as to call for criticism on-our part.

The case was hotly contested and ably defended. We have tried to consider all of the questions raised but, being of opinion that none of them present reversible error, the judgment of the trial court will be affirmed.

On Motion.for Rehearing.

HAWKINS, J.

The opinion heretofore rendered is attacked upon the ground that it is erroneous in holding that the refusal of the trial judge to charge upon un-communicated threats did not call for a reversal.' Exceptions were presented complaining of the omission of such instructions from the main charge, and the following special charge was'requested:

“Uneommunicated threats are always admissible to determine, among other things, where that is an issue in the case, who began the difficulty — who was the aggressive party — defendant or deceased? So, in this case, evidence had been introduced before you relating to threats made by deceased, A. W. Garren, against defendant, which threats were not communicated to defendant before the killing. ■ You will consider these threats, if any, in determining whether deceased or defendant began the difficulty resulting in the death of deceased.”

It may be stated that the evidence is in conflict as to who was the aggressor in the difficulty. There was proof of both communicated and uneommunicated threats made by deceased, against appellant.., In support of the contention that, under these circumstances, a charge on uneommunicated threats should have been given, we are cited to Kirklin v. State, 73 Tex. Cr. R. 251, 164 S. W. 1016; Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875; Aycock v. State, 88 Tex. Cr. R. 238, 225 S. W. 1099. When it becomes an issue as to wbo may have been tbe aggressor in a difficulty that uneommunicated threats made by deceased are provable, is not an open question. It is recognized by Wharton (10th Ed.), p. 1505, § 757, and Underhill (3d Ed.) § 506, and the. rule has a firm addption in our own decisions, both on'principle and precedent. See Branch’s Ann. P. C. p. 1170, § 2079. But that is not the question with which v^e are dealing. We are called upon ■to decide whether the court shall be required to single out evidence oí a particular character and charge the jury thereon. So far as our own investigation of authorities has extended, or to which we have been cited, the Kirklin Case, supra, decided in 1914, is the first one announcing it to be reversible error for the court to refuse a charge upon uneommunicated threats. The following language is found in the opinion: “It is unnecessary to cite the authorities, as they are quite numerous.” This statement, from the eminent jurist who wrote it, has caused us to make special and diligent search, and our failure to discover the authorities has led us to believe that in this reference he inadvertently confused the right tq introducevidence of uneommunicated threats (for which there is abundant authority) with the question of the propriety of instructing the jury relative to such evidence. The question was again before this court in the Aycock Case, supra, in 1920. The learned judge who presided at the trial of Aycock declined to instruct the jury on uneommunicated threats on the ground that same would have been a charge upon the weight of the evidence. This was adverted to in the opinion, and the same great judge who wrote in the Kirklin Case again said:

“The rule is definitely settled that, when the issue is of vital importance as to who began the difficulty, the court should charge as to the uneommunicated threats of deceased. Kirklin v. State, 73 Tex. Cr. R. 255, 164 S. W. 1016; Huddleston v. State, 54 Tex. Cr. R. 98, 112 S. W. 64, 130 Am. St. Rep. 875; Pape v. State, 54 Tex. Cr. R. 464, 113 S. W. 759; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826. See, also, State v. Blee, 133 Iowa, 733, 111 N. W. 19.”

A review of the authorities cited in the foregoing quotation reveals that the Kirklin Case is the only one which supports the holding in Aycock’s Case. In Huddleston’s and Trotter’s Cases the trial judge undertook to instruct the jury relative to uneommunicated threats, and, in each instance, the charges were held erroneous as being too restrictive. The question of the refusal to charge upon the subject was not before the court. In Pape’s Case no question of the refusal of a charge upon the subject under discussion was raised. The point there was as to the admissibility in evidence of uneommunicated threats. Likewise, in the Pitts Case no question was presented as to the effect of the refusal of a charge upon the subject. A new trial was requested for newly discovered evidence of uneommunicated threats, and it was held that, under the facts of the Pitts Case, the refusal of the new trial upon that ground was not error. In Levy’s Case the question of charging upon uneommunicated threats was not raised. The case of State v. Blee, 133 Iowa, 733, 111 N. W. 19, supra, does not sustain the announcement that the refusal to charge on uneommunicated threats would be erroneous, but held only that, the court having undertaken to charge upon it, the instruction given was too restrictive, this being the same question before this court in the Huddleston and Trotter Cases.

The present writer has such high regard for the ability and legal wisdom of the author of the Kirklin and Aycock opinions th¿t it is with the utmost reluctance he expresses views out of accord therewith, and only the firm conviction that to follow them upon the matter now under consideration would ingraft upon our jurisprudence an •innovation leading to confusion, induces him to do so. There is no better established rule than'that:

“It is not proper for the court to single out particular facts or specific parts of the testimony and charge thereon. To do so would be instructing on the weight of the evidence.”

Under note 125, art, 735, vol. 2, Vernon’s Crim. St., are listed some 50 cases supporting this recognized rule. Why are either communicated or uneommunicated threats receivable in evidence? Broadly stated, the answer is upon the issue of self-defense. Why is it necessary for the court to charge specifically , upon communicated threats? Solely because the statute itself (article 1143, P. C.), under certain circumstances, makes that a' ground of justification for one charged with an unlawful killing, and it is therefore necessary and proper that the jury be so instructed. In the absence of the statute, evidence of communicated throats would be pertinent upon the general issue of self-defense, and a charge upon the latter issue would be all that under ordinary circumstances, would be necessary. Proof of un-coinmunicated threats becomes a fact to be considered by the jury upon the defensive issue, just as any other fact in the case. It is true, one of its peculiar functions is to enable the jury to solve the question as to who may have been the aggressor. But why is it necessary to solve that question? Simply and solely to reach a conclusion as to the truth or otherwise of the plea of self-defense. Then why should it be required that the trial judge single out uncommuni-cated threats and charge on them, any more than any other character of evidence receivable to solve the same question? A., with a gun, is seen secreted along a road which B. is traveling, and later B. kills A. near this same spot, and defends on the ground that A. commenced the attack and that B. killed in self-defense; proof of A.’s conduct would be highly important upon the issue of self-defense, but the trial court would not be called upon to.instruct the jury for what specific purpose proof of A.’s conduct was admitted in evidence: to do so would offend against the general rule last above stated. Threats made at the time of and during the difficulty are receivable in evidence as part of the res gestse, and may be considered by the jury in solving the issue of self-defense, as well as any other issue upon which they have a hearing; yet it is not required that a charge be given relative to threats so uttered. See section 2075, p. 1168, Branch’s Ann. P. C. Where manslaughter is predicated upon passion 'arising from one of the causes made adequate by the statute, it is the duty of the court to,, instruct that, if such cause existed and passion was aroused thereby, it would be adequate to reduce a killing to manslaughter. Why? Because the statute specifically so pr.ovides; but, if the cause relied on be general conditions not specifically named in the statute, it would be error for the court to instruct that such conditions would in law be adequate cause. The jury passes upon it under a general charge on manslaughter (see Sargent v. State, 35 Tex. Cr. R. 338, 33 S. W. 364, and authorities annotated at top of page 1150, Branch’s Ann. P. C.), just as the jury considers uncommunicated threats under a general charge upon self-defense.' We think it may be stated, as a sound general rule, that the trial court is not required to charge upon any specific-evidence unless it be introduced by the state for a particular purpose, and is likely to be appropriated by the jury improperly against the defendant on trial, which is illustrated by a charge limiting impeaching evidence in certain instances. This rule has no application in a case like the one before us. The proof of uncommuni-cated threats is introduced by the defendant. Where the court’s charge does not restrict the purpose for which such proof is made, the evidence is usable by the jury, in all respects, for the defendant. In no sense is it detrimental to him, and the withholding of a- charge thereon appears to be mpre to his benefit than to his hurt. In Williams v. State (Tex. Cr. App.) 254 S. W. 568, a special charge, somewhat peculiarly worded, but having uncommuhicated threats as its' subject, was held on the weight of. the evidence, in the absence from the main charge of anything restricting the purpose for which such evidence was admitted. Whether our holding in the original opinion in the instant case that the refusal of such requested charge was not reversible error was or was not based upon a misconception of the facts, as it related to a probable provoking of the difficulty by appellant, we think immaterial in view of the foregoing general discussion of the subject, and we conclude that nothing appears in the main charge of the court which can, in any wise, be construed as a limitation on the purpose for which uncom-mfinicated threats were in evidence, and therefore no error was committed in declining to give the special charge upon that subject. The main charge given in the instant ease does not even limit appellant’s right to act’ upon threats to, those which had been communicated to him, but, from the wording of the instructions, appellant could justify himsolf upon the ground of any threat made, whether communicated or uncommunicated, and the requested charge would have been more restrictive than the one given, and, in this respect, would have been against appellant’s interest.

The court charged upon self-defense, based upon apparent danger from the acts, or words coupled with the acts, of deceased, and in connection therewith the jury were told that, in determining whether accused entertained a reasonable belief that danger'existed, the appearance should be viewed from his, standpoint alone. The charge upon threats is entirely disconnected from the general charge upon self-defense, and reads as follows:

“When the defendant, accused of murder, seeks to justify himself on the ground of threats against his own life, or serious bodily harm, he may be permitted to introduce evidence of the threats made, but the same shall not he regarded as affording a justification for the offense unless it he shown that at the time of the homicide the person hilled, by some aot then done, manifested an intention to execute these threats so made. Now, if you believe from the evidence in this case that prior to the homicide, or at the time of the homicide, the deceased made threats against the life of the defendant, and you further believe that at the time of the killing, A. W. Garren, the deceased, by some act then done, manifested an intention to execute the threat so made, or if you have a reasonable doubt as to whether or not he did manifest an intention to execute the threat so made, then you will give the defendant the benefit of such doubt, and acquit him.”

This. charge contains all the law given relating to.appellant’s rights under “threats.” It was specifically excepted to because it did “not submit the defense, based on communicated threats, from the standpoint of the defendant, and. limits the manifestation therein mentioned t'o acts only, and not words coupled with acts.” To correct what was thought to be a defect in the foregoing instruction, appellant requested the following special charge, which was refused:

“If you believe, from the evidence, that prior to the homicide it was communicated to the defendant that threats had-been made by the deceased to kill or inflict serious bodily injury upon the defendant, and that defendant believed that such communications as to threats made ¡against him were true, whether the same were in fact or not; and at the time of the homicide, the deceased, by any acts then done, or by words' coupled with such' acts, if any, reasonably created within the mind ojE defendant, as viewed by him from his standpoint at the time, an apprehension or fear that the said deceased was in the act of executing the threats so inade, or was about to execute the same; or the deceased by his conduct, coupled with words, if any, indicated that he was then and there about to unlawfully attack the 'defendant and inflict upon him death or serious bodily injury, and that defendant, so believing, shot and killed deceased, that the same would be justifiable homicide — if you should so believe, or have a reasonable doubt thereof, then you will acquit the defendant.”

Thus it will be seen that, both by exception and requested charge, appellant’s complaint was called to the attention of the court. We believe tile criticism that the charge given was too restrictive i£ well taken. It only required the jury to believe that deceased manifested an intention to execute a prior threat; in view of all the facts in evidence, the jury might not have believed any act done by deceased did manifest any such intention. But the question is not how it appeared to the jury, but how did it look to appellant? The jury should have been told that if, from the acts or words, coupled with the acts of deceased, it reasonably appeared to appellant, viewed from his standpoint, that deceased was about to carry the threats into execution, appellant would be justified in acting, for it is to him, necessarily, the intention must appear to be manifest and not the jury, or some other person differently situated. The question under discussion has been considered in many cases, and the charge objected to has not been sustained. Williams v. State, 87 Tex. Cr. R. 280, 221 S. W. 287; Sims v. State, 9 Tex. App. 586; Gonzales v. State, 28 Tex. App. 130, 12 S. W. 733; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 892; Maclin v. State, 65 Tex. Cr. R. 384, 144 S. W. 951; Lundy v. State, 59 Tex. Cr. R. 136, 127 S. W. 1032; Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 335; Adams v. State, 47 Tex. Cr. R. 347, 84 S. W. 231; Ayers v. State, 62 Tex. Cr. R. 428, 137 S. W. 1146.

In writing upon rehearing, heretofore, our ■attention was particularly directed to appellant’s contention that a charge" upon “un-communicated” threats was demanded, and the criticism of the charge given upon communicated threats was disposed of, without a careful examination of the authorities, and -.upon the ground that, considering the charge in its entirety, no such error appeared as would demand a reversal. Upon more mature reflection and analysis of our former opinions, we have become convinced that we were in error in this regard. The instruction relative to threats was not connected in any way with the other 'portions of the charge upon appellant’s right to act upon apparent danger and, in this respect, differs from the charge in Darnell’s Case, 58 Tex. Cr. R. 585, 126 S. W. 1127. The former opinion upon rehearing, overruling appellant’s motion, is withdrawn, and the present opinion substituted therefor.

For the error discussed, the1 judgment of affirmance is set aside, the motion for rehearing granted, the judgment is now reversed, and the. cause remanded. , 
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