
    (86 Tex. Cr. R. 339)
    GATLIN v. STATE.
    (No. 5495.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.
    On Motion for Rehearing, Jan. 28, 1920.)
    1. Indictment and information &wkey;»191(4)— Conviction or assault to murder under indictment rob murder proper.
    One can be convicted of an assault to murder under an indictment charging murder.
    2. Criminal law <&wkey;1144(16) — Presumption that jury followed instruction.
    The Court of Criminal Appeals must presume that the jury followed an instruction.
    3. Homicide &wkey;>257(l) — Evidence showino guilt or assault to murder.
    Evidence held sufficient to support verdict of guilty of assault to murder through striking deceased with a knife.
    4. Homicide <&wkey;310(3) — Refusal or instructions ELIMINATING ISSUES OR MURDER AND ASSAULT TO MURDER PROPER IN VIEW OR EVIDENCE.
    In a prosecution for murder, resulting in conviction of assault to murder, requested instructions eliminating the issue of murder -and assault to murder held properly refused, in view of evidence showing that defendant assaulted deceased with a knife having a blade 2% inches long.
    
      5. Criminal law <&wkey;706 — Showing dehmb-ant’s witness a book purporting to CONTAIN HIS TESTIMONY BEFORE GRAND JURY NOT ERROR.
    In prosecution for murder, resulting in conviction of assault to murder, where a witness testified that he did not remember that after the difficulty- he heard defendant’s . son say to defendant, “Tou ought not to have cut him,” and where counsel for the state, after the witness’ denial that he had not testified to the contrary before the grand jury, was permitted to produce a book, not placed in evidence, purporting to contain grand jury evidence, which the witness was requested to look at and to read to himself, which he did, and then reiterated his statement that he did not remember, there was no error.
    6. Homicide <&wkey;309(l) — Instruction on MANSLAUGHTER NOT RESTRICTIVE AS TO PROVOCATION.
    In a prosecution for murder, resulting in conviction of assault to murder, instruction on manslaughter held not too restrictive as requiring provocation to have arisen at the time of the killing, as a charge cannot be judged by isolated paragraphs.
    7. Homicide <&wkey;-203 (3) — Statement admissible AS DYING DECLARATION.
    Where deceased, cut in an affray by defendant, believed death to be near, and had no hopé of recovery, and voluntarily made a dying statement, as appeared from the statement itself, such statement or dying declaration was admissible.
    On Motion for Rehearing.
    8. Criminal law <&wkey;1159(3) — No review of VERDICT ON CONFLICTING EVIDENCE.
    Conflicts in. the evidence are for the jury, and their settlement of merely conflicting issues should not be disturbed by the court of criminal appeals.
    9. Homicide <&wkey;307(l) — Instruction limiting WHAT OFFENSES MIGHT BE CONSIDERED PROPERLY REFUSED.
    In a prosecution for murder, resulting in ,conviction of assault to murder, deceased not having died until 30 days after he was cut by defendant, a requested charge that the jury should find defendant not guilty of murder or assault to murder, but should consider simply whether or not he was guilty of manslaughter or aggravated assault, or not guilty, held properly refused, in view of the record.
    10. Homicide <&wkey;7 — Murder includes every DEGREE OF HOMICIDE AND ASSAULT.
    The only difference between murder and manslaughter is the difference in the mental attitude of defendant at the time of the killing; murder, under the Penal Code of Texas, including every degree of homicide, and of assault, as murder, manslaughter, assault to murder, and aggravated assault.
    11. Criminal law <&wkey;748 — Jury determines DEGREE OF OFFENSE.
    The decision of the degree of offense is for the jury.
    12. Criminal law <&wkey;1175--'Verdict of LESS DEGREE OF OFFENSE HARMLESS ERROR.
    If the jury errs in giving a verdict of guilty of a less degree of offense than defendant was really guilty of, defendant cannot complain.
    13. Homicide <&wkey;338(l) — Harmless error in ADMITTING DYING DECLARATION IN PROSECUTION FOR HOMICIDE RESULTING IN CONVICTION OF ASSAULT.
    In a prosecution for murder, resulting in conviction of assault to murder, the admission of the dying declaration of deceased was not reversible error on any ground that such declarations are admissible only in homicide cases, while defendant was acquitted of homicide.
    Appeal from District Court, Collin County; F. E. Wilcox, Judge.
    Jim Gatlin was convicted of- assault to murder, and lie appeals.
    Affirmed.
    Wallace Hughston and Abernathy & Smith, all of McKinney, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   RATTIMORE, J.

Appellant was indicted in the district court of Collin county for,the murder of C. D. Rossiter. Upon his trial, he was convicted of an assault with intent to murder, and his punishment fixed at confinement in the penitentiary for a term of five years.

That one can be convicted of assault to murder, under an indictment charging murder, is not an open question. The trial court submitted murder, manslaughter, assault to murder, aggravated assault, and self-defense.

The first contention of appellant is that, the evidence does not support the verdict of guilty of assault to murder. We note, in passing, that there was no exception to that part of the charge of the court on assault to murder, which is as follows:

“If under instruction No. 14, hereinbefore given you, you find that the defendant is not guilty of murder and not guilty of manslaughter, but you further find and believe from the evidence beyond a reasonable doubt that the defendant, Jim Gatlin, on or about the time charged in the indictment, in the county of Collin and state of Texas, with malice aforethought, did, assault the deceased and inflict serious bodily injury upon him, with intent then and there to kill and murder said C. D. Rosseter, and if you are further satisfied by the evidence, beyond a reasonable doubt, that the said assault was not made under the immediate influence of sudden passion, produced by an adequate cause, as the term adequate cause is hereinbefore explained to you, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, then you will find the defendant guilty of an ‘assault with intent to murder,’ and so say by your verdict, and assess his punishment at confinement in the penitentiary for a term of not less than two or more than fifteen years, as you may determine and state in your verdict.”

Paragraph 14, referred to in the above quotation from the court’s charge, is as follows :

“On the other hand, if you should find and believe from the evidence that the defendant cut the deceased with a knife and inflicted upon him a wound which was not in itself necessarily mortal, and you further find and believe from the evidence that the deceased died from an infectious or septic condition or other disease by improper treatment of his attending physicians or any of them, or if you have a reasonable doubt as to whether the infectious or septic condition or other disease was caused by the wound inflicted by the defendant or by the treatment of the wound by the attending physicians or some of them, then the defendant would not be guilty of any degree of culpable homicide, and you should acquit him of both murder and manslaughter.”

It is evident that, under the quoted portions of the charge, the jury had to first find appellant not guilty of any grade of hoihicide before considering whether he was guilty of an assault. to murder, and our presumption is that they must have followed said instruction.

There is, as stated above, no exception in the record to the court’s submitting the question of assault to murder, and we are unable to say that there is no evidence to support said finding. It is clear from the record that • deceased was cut by the appellant with a knife, from which wound he subsequently died.

The state’s witnesses testified that appellant addressed a remark to the mother of deceased, immediately preceding the killing, said remark being in a harsh and angry tone; that deceased remonstrated with appellant, who then said, substantially, “You have come here for trouble, and I will cut you in two;” and that both men struck—appellant with a knife, and deceased with his fist. There are, unquestionably, conflicts in the testimony, but mere conflicting evidence does not warrant us in overturning the verdict of a jury which is based on that portion of the testimony believed by them to be the most worthy of credit. The case of Borrer v. State, 204 S. W. 1003, seems to hold contrary to appellant’s contention.

We do not find any error in the matter raised by the second assignment of error. Prom the standpoint of the state, it was an assault by appellant upon deceased with a knife, having a blade 2% inches long, and which, according to the testimony of appellant himself, reproduced from a former trial, was of sufficient size to kill a man. The blow consisted of a stab in the breast of deceased, and was preceded, according to the state’s contention, by an unprovoked threat, to wit, “You have come here for trouble, and I will cut you in two.”

Under this state of the record, the trial court would certainly not have been justified, of its own motion, in eliminating murder, or assault to murder, as was required by the requested charge, the refusal of which was the basis of this complaint.

The fatal difficulty occurred in the road, a short distance from the door of appellant’s store. Witness Edens testified that, when the exchange of blows took place between appellant and deceased, the son of appellant came out and led his father into the store. The state asked appellant’s witness England if he heard appellant’s son, Charlie Gatlin, say to his father as he came into the store, “You ought not to have cut him,” to which question the witness answered, “I don’t remember that.” The son of appellant, referred to, had ‘testified as a witness in behalf of appellant that he was present and saw the whole difficulty. After the reply of the witness England, above referred to, and to a number of preliminary inquiries, this witness was asked, substantially, if he was not before the grand jury a short time after the homicide, and if he did not there testify that he saw Charles Gatlin come back into the store with his father, and that he made to his father the statement inquired about, and that appellant made no reply thereto. This was objected to as collateral, prejudicial, and not such matter as' could be used for impeachment. Tjie objection was overruled. The witness again answered that he did not remember. The state’s counsel‘was then permitted to produce a book purporting to contain grand jury evidence, which was handed to the witness, and he was requested to look at certain indicated evidence, and to read the same to himself, which he did; and the state’s attorney then asked him if he now remembered the matter inquired about, to which witness answered that he did not, and which was his answer substantially to a number of subsequent questions. The grand jury book was not offered in evidence any further.

We see no error in the action of the trial court, nor do we think any error would have been committed if the witness had testified that he did hear said statement made by Charles Gatlin to his father as they came into the store, or if the state had offered the impeaching testimony. This does not come within the rule against remarks of a bystander, but would be admissible both as res gestaj and as a criminative statement made to appellant, to which he made no ré-ply or denial. Kelly v. State, 37 Tex. Cr. R. 641, 40 S. W. 803; Clement v. State, 22 Tex. App. 23, 2 S. W. 379; McMahon v. State, 46 Tex. Cr. R. 540, 81 S. W. 296; Stanley v. State, 48 Tex. Cr. R. 537, 89 S. W. 643; Rice v. State, 49 Tex. Cr. R. 576, 94 S. W. 1024; Carver v. State, 68 Tex. Cr. R. 100, 150 S. W. 914.

Appellant further complains that the-court’s charge on manslaughter is too restrictive, in that it requires that the provocation must arise at the time of the homicide. There is nothing in this contention. A charge cannot be judged by isolated paragraphs. In applying the law to the facts, we find the following in the charge:

“In this connection you are instructed that an assault and battery causing pain or bloodshed is deemed in law adequate cause to produce passion.
“Therefore you are instructed that if you believe from the evidence that on the occasion in question the deceased struck the defendant with his hand or fist, and that said blow, if any, caused the defendant pain or bloodshed, and you further believe that said assault alone or in connection with the conduct and words, if any, of the deceased and his mother, Mrs. Rossiter, or either of them, at the time were not sufficient when, coupled with all the other antecedent circumstances and circumstances at the time, to create in the mind of the defendant, viewing the same as it reasonably appeared to Mm from his standpoint at the time, that he was in danger of death or serious bodily injury at the hands of the said deceased, but if you further find and believe from the evidence that said assault alone or in connection with the conduct and words, if any, of said deceased, and said Mrs. Rossiter or either of them, at the time, coupled with all the antecedent facts and circumstances and facts ahd circumstances at the time, aroused in the mind of the defendant a sudden passion either of anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection, and acting under the influence of such passion, if any, and not in Ms own justifiable self-defense, as self-defense is hereinafter defined in tMs charge, he, the defendant, with the intent to kill, cut the deceased, O. D. Rossiter, with a knife and thereby killed said deceased, then Ms .offense would not be of a Mgher grade than manslaughter.”

This instructs the jury to take into consideration all the antecedent facts, as well as those which arose at the time of the difficulty, in determining the sufficiency of the provocation. What we have just said applies also to the complaint that the trial court did not sufficiently tell the jury that an assault and battery constitutes adequate cause.

No one claimed that the mother of deceased made an attack upon appellant at the time of the homicide, nor is there any evidence in the record supporting any theory of a combined attack upon him by the deceased and his mother, such as necessitated a charge on the theory of defense against such an attack, or a manslaughter, condition of the mind, resulting from such 'combined attack.

Objection was made to the dying declaration of deceased, but we find nothing in the record supporting same. The declaration was in conformity with similar statements which have been held admissible by this court. We find no similarity between said statements and the facts surrounding the same, and the one complained of in Walker V. State, 206 S. W. 96, which is the only case cited in support of this contention by appellant, except that in each case the declarant lived some time after making the statement. That deceased believed death to be near, and that he had no hope of recovery, and that the statement was voluntary, all appear from the statement itself in the instant case; nor was there any testimony that belief of recovery was ever' entertained by deceased, .as was true in the Walker Case.

' We have carefully examined' all the contentions of appellant, and the authorities cited in support thereof, but have concluded that there is no error shown, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

It is earnestly insisted, in appellant’s motion for a rehearing, that we should have held that the evidence did not properly support the verdict of an assault with intent to murder. The able brief of-appellant sets out substantially all the evidence for both sides of the ease. ' Ordinarily, in determining the sufficiency of the evidence, inquiry will be made by us only as to the sufficiency of the proof made by the state, and, if therefrom it appears that the verdict is supported, we will uphold the judgment, upon the well-settled rule that conflicts in the evidence are for the jury, and that their settlement of merely conflicting Issues should not be disturbed by us.

In this case it is shown by the testimony for the state that deceased was cut by a knife in the hands of appellant; that a difference over some turkeys had existed for some little while between appellant and Mrs. Rossiter, the mother of deceased. On the day of the killing, deceased and his mother drove up to a point in the road near the store of appellant, and called him out. A conversation occurred between the three, which terminated in a statement by appellant to Mrs. Rossiter, in a harsh and angry tone, as stated by the witness Edens, who is corroborated by the witness Barrow in saying that appellant talked, to him, like a mad man. Thereupon deceased said to appellant, “That is my mother you are talking to that way,” and appellant turned to deceased and said, “Xou come here hunting trouble, and I will just cut you in two,” and jerked out his knife; and the two men struck at almost the same time—deceased with his hand, and appellant with a knife. Only one blow was struck by each. Deceased was cut in the breast, and died some 30 days later.

Nothing appears in the record from the state’s evidence which would justify us in holding that there was any adequate cause to produce such uncontrollable emotion in the mind of appellant, nor is such mental condition on the part of , appellant testified to by any witness. Appellant did not testify in his own behalf. On the contrary, there is evidence sufficient to show a. deadly attack by appellant, preceded by a serious threat on his part, and under our Code malice may be conceived and executed in the shortest possible time. So that we would hold it sufficiently shown by the state that all the elements of an unjustifiable homicide existed in • the case. We are cited to no authorities by the appellant, holding by analogy to the contrary.

Appellant insists that we should have sustained his third assignment of error, as contained in his brief. An examination of the same shows a mere reference in the brief to the third ground of his motion for a new trial, as constituting his third assignment of error, and, by reference to the record, said third ground of the motion for a new trial covers two pages of the transcript.The matter therein contained has reference to the action of the court in permitting the state’s attorney to ask appellant’s witness England if he did not hear the son of appellant say to him immediately after the fatal difficulty, “You ought not to have cut him,” and in permitting the state to attempt to refresh the recollection of this witness, when he answered that he did not remember, by showing to him a book containing grand jury evidence, and requesting him to read certain marked portions thereof. As stated by us in the original opinion, after this book was shown to the witness, he further stated that he did not remember having made the statement inquired about, and there the inquiry ended.. Neither the book nor its contents were introduced in evidence. We held that the facts shown by this bill of exceptions did not constitute error. In our citation of authorities in support of this part of the opinion appears the citation of Kelley v. State, 37 Tex. Or. R. 64, which was an erroneous citation, as no such ease appears in said volume at said page. The statement attributed to the son of appellant, which js under discussion, was one which was made directly to appellant immediately after the occurrence, and while .the son was escorting his father away from the scene of the difficulty, and in our opinion the same was a res gestee statement, and one which called for a reply or explanation from appellant, and, none being made, his silence would have been a fact to be considered by the jury for what it' was worth; hence the attempted predicate was not as to an immaterial matter.

It is further contended that the trial court should have given special charge No. 1, to the effect that the jury should find the appellant not guilty of murder, or assault to murder, but should simply consider whether or not appellant was guilty of manslaughter or aggravated assault, or not guilty. It is manifest from the record that the trial court did not err in refusing this special charge. Appellant’s chief argument in support of this contention seems to be that, unless it appear from the evidence that deceased came to his death as the result of negligence of the nurses or physicians attending him — or, in other words — unless it appear that death resulted, not from the .act of appellant, but from some other intervening cause, the verdict could not legally be assault to murder. As we understand it, the very charge No. 1, the refusal .of which is here complained of, by its language answers the argument. Manslaughter, which this charge seeks to have considered by the jury, necessarily implies death as the result of the act of the accused, the .only difference between murder and manslaughter being the well-understood difference in the mental attitude of the accused at the time of the homicide. Murder, under our Code, includes every degree of homicide and of assault, and in this case the trial court submitted murder, ■ manslaughter, assault to murder, aggravated assault, and self-defense. The decision as to the degree of offense one shall be found guilty of, if at all, is for the jury, and, if they err in giving a verdict in favor of a less degree, we know of no authority which gives to appellant any right or ground of complaint. Campbell v. State, 65 Tex. Cr. R. 418, 144 S. W. 966. No authorities in support hereof are cited by appellant.

Nor do we agree with the learned counsel, who urge that dying declarations are only admissible in homicide cases, and that, this appellant having been acquitted of homicide by this verdict, the admission of the dying declaration of deceased should be held reversible error. Appellant was on trial for murder, and in such case the introduction of no evidence admissible on such trial would cause a reversal because of a conviction for a lower degree of such offense. In addition' to what we have just said, we find nothing in the dying declaration which appears in the record, raising any issue nót fully upheld by the other testimony in the case.

Believing the original opinion a correct expression of the law of this case, the motion is overruled. 
      c§rs>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     