
    BUSH v. STATE.
    (No. 4168.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <&wkey;476 — Opinion Evidence —Cause and Defect — Wounds.
    The testimony of a surgeon is admissible to prove the nature of a wound and the probable cause and effect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. &wkey;j476.]
    
      2. Witnesses <&wkey;34f>(4) — Impeaching — Proof of Indictment.
    In a murder trial, proof by the state that a witness for accused had been indicted was admissible as to his credit, although sentence upon his subsequent conviction was suspended.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1127, 1128; Dec. Dig. &wkey;>345(4).]
    3. Homicide &wkey;>163(2) — Evidence—CHARACTER of Deceased.
    In murder trial, exclusion of proof by accused that deceased had a bad reputation as a bootlegger of whisky, and that he had been convicted of illegal liquor selling, was proper, since deceased’s credit as a truthful man was not in issue; no res gestee or other statement of his being introduced in evidence against accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. &wkey;163(2).]
    4. Criminad Daw <&wkey;823(6) — Instruction-Self-Defense.
    In a murder trial, where accused testified deceased threatened to take his life about a girl, and that he armed himself at the time of the homicide for that reason, and admitted that at night he stopped an automobile in which deceased and the girl were riding, the state’s evidence being that he did so by waving a pistol- with a threat to kill if the car was not stopped, and that he then assaulted one of the occupants, an instruction that if accused made an attempt to stop the car for an unlawful purpose, by drawing his pistol and intimidating the driver, and then brought on the difficulty resulting in the homicide, with the intention to kill deceased if he resented the act, he would not be justified in killing deceased, although it became necessary for him to kill deceased to prevent deceased from killing him, etc., was proper, where in another paragraph of the charge the jury were instructed that defendant did not waive his right of self-defense by arming himself and seeking an interview with deceased for the purpose of inquiring of deceased as to threats made by him against accused, and were also instructed when, under the claimed facts, if found true, accused would be guilty of murder and manslaughter.
    [Ed. Note. — For other cases, see C-riminal Law, Gent. Dig. §§ 1992-1994, 3158; Dec. Dig. &wkey; 823(6); Homicide, Cent. Dig. §§ 718, 719.]
    5. Criminal Law <&wkey;829(l) — Trial — In-steuction — B-equests.
    A «requested charge copied in the main charge given was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829(l).]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Henry Bush was convicted of murder, and appeals.
    Affirmed.
    King & Seale, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HABPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement in the state penitentiary.

From the evidence it is apparent that trouble, prior to the fatal encounter, existed between deceased, Bud Lewis, and appellant on account of attentions each was paying to a colored girl, Willie May Bonnepart. The state introduced threats appellant had made, and appellant introduced evidence of threats deceased had made, thus both sides introduce ing evidence of previous ill will. Both sides agree that the evening of the homicide deceased carried Willie May Bonnepart, Lollie Tolbert, and Jessie Brantley to Caro, Clifford .Sleet driving th,e automobile. The state’s case is, when appellant learned of these facts he stationed himself on a bridge he knew they would pass in returning to the home of Willie May Bonnepart, and when the party was driving across the bridge appellant drew his pistol, flagged the car, and said, “If you don’t stop that car I will kill you.” As the car came to a stop the driver, Sleet, undertook to gpt out, when appellant struck him with the pistol; that he struck Sleet the second time, felling him to his knees, when Sleet crawled away. Sleet says that just about this time he heard deceased say, “Wait a minute, Henry, and let me explain,” when a shot was fired. There is no question that a number of shots were fired, and deceased was found some distance from the automobile, shot twice — once from in front, and once from behind; his head also had two blows upon it, one in the forehead, and the other in the back of the head.

Appellant contends that he went to take Willie May Bonnepart to church that night, when he was informed she had gone to Caro with deceased; that the reason he had the pistol in his pocket was on account of the threats he had been informed deceased had made; that he was on his way home, he living near the bridge, when he saw the automobile returning; that he waved to the car to stop, intending to ask the Bonnepart girl to get out and go to church with him; that when the car stopped, deceased and Sleet both got out, and deceased drew a pistol; that Sleet was between him and Lewis, deceased, and after deceased had drawn his pistol, he drew his pistol and struck Sleet to knock him from between him and Lewis; that he and Lewis then grappled and scuffled around for some distance, deceased in the meantime firing two shots; that after deceased had shot twice, he shot deceased and continued to shoot until deceased fell. He contends that deceased also continued to shoot.

As to whether deceased was armed that night was a very closely contested issue, and a jury would be authorized to find either way on that issue.

Dr. T. J. Blackwell was the physician who examined deceased, and he testified that he examined the wound in the forehead, describing it, and that in his opinion it was caused by a blow from some blunt instrument, and that the nature of the blow was such that it would have felled deceased and rendered him unconscious. This testimony was objected to by appellant on the ground that it was an opinion of the witness. The court committed no error in overruling the objection made. In the case of Waite v. State, 13 Tex. App. 180, Judge White approved the rule, as stated in Wharton’s Crim. Evidence. The testimony of “a surgeon is admissible to prove the nature of a wound and its probable cause and effect,” and this is the rule always adhered to In this court where the physician is shown to be a competent one, as in this case.

On cross-examination of John Balling-er, a witness for appellant, the state was permitted to elicit from the witness that he had been indicted and convicted of theft. The defendant then developed that the sentence in that case had been suspended, and asked that the testimony .of his indictment and conviction be excluded. The court excluded all testimony as to his conviction, and instructed the jury not to consider it, but permitted evidence that he had been indicted for theft to remain before the jury. In so doing the court committed no error, .as it was admissible on the credit to be given the testimony of the witness.

The testimony complained of in the third 'bill of exceptions was admitted for the purpose of the impeachment of the state’s witnesses, Lollie Tolbert and Jessie Brantley, and the court so held. It was not admissible as original testimony, as it consisted of statements made by these women after the difficulty was over.

The court permitted appellant to prove that deceased had a bad reputation as a peaceable, law-abiding citizen, and as being a dangerous man. There was no error in refusing to permit appellant also to prove that he had a bad reputation as a bootlegger ■of whisky. This testimony could and would shed no light on this difficulty. Nor was it permissible to show that deceased had been convicted in the federal court of selling liquor without obtaining license. Deceased was not a witness. No res gestee or other statement of his was introduced in evidence against appellant, thus his credit as a truthful man was not an issue in the case.

After giving a full and fair charge on self-defense, as made by the testimony offered in behalf of appellant, and which charge is in no way complained of by appellant, the court instructed the jury:

“You are further instructed on the question of self-defense that if you find from the evidence, beyond a reasonable doubt, that the defendant, Henry Bush, made an attempt to stop the ear that Bud Lewis was in, for an unlawful purpose, and that in stopping said car, if he did so, the defendant drew his pistol and intimidated the party driving said car and knowingly brought on the difficulty with said Lewis by such acts, if any, with the intention of killing said Lewis, if the said Lewis should resent the same, the defendant would not be justifiable in killing said Lewis, although after the starting of such trouble, if any, by the defendant, if you find he did so, it become necessary to kill said Lewis to prevent Lewis from killing him; but if you have a reasonable doubt as to whethei or not the defendant stopped the car and made an attack on the occupant of said car with a pistol for an unlawful purpose, you will give the defendant the benefit of such doubt and consider and apply the rules of self-defense as above given you in charge.”

Appellánt in Ms bill of exceptions and in the brief filed in tMs court says such a charge was uncalled for; that it was an undue limitation on his right of self-defense; that it is upon the weight of the evidence, and because the court did not instruct the jury that appellant had the right to stop the car for the purpose of asking an explanation and having an interview with deceased, etc.

We do not think the charge is upon the weight to be given the evidence, but a mere statement of the law in case the jury finds a certain state of facts to be true. As to the charge being uncalled for by the testimony, we think it aptly presents the law as applicable to the evidence in tMs case. Appellant himself testifies that deceased had made ■threats to take his life about this girl, and he armed himself on tMs occasion for that reason; he admits stopping the car; the state’s evidence is that he stopped the car by waving a pistol with the threat, “If you do not stop it, I will kill you.” As soon as the car stopped, he began striking, one of the occupants of the car over the head—not the man he killed, but another man. If he committed such acts, Ms right of self-defense would be impaired, and the court should have so instructed the jury. In another paragraph of the charge, the court informs the jury, under such a state of facts, if found true, when appellant would be guilty of murder and manslaughter; and out of an abundance of precaution in another paragraph of the charge he instructed the jury:

“In connection with the charge of self-defense, you are further instructed that the defendant did not waive his right of self-defense by arming himself with a pistol and seeking an interview with the deceased. Bud Lewis, for the purpose of inquiring of said Lewis an explanation of threats, if any, made by said Lewis against the defendant, or to have a conversation with Willie May Bonnepart.”

Taken as a whole, the court’s charge presented very fairly the law as applicable to the two theories upon which the case was tried and as made by the testimony, and is not subject, to the criticism of appellant; only two paragraphs of the charge being complained of.

Special charge No. 1 requested was apparently copied in the main charge as given, and, of course, under such circumstances there was no error in marking it refused. Special charges Nos. 3 and 4, requested by appellant, were fully covered by the court’s charge. In the record there ist no special charge numbered 2, and if any such was requested, it was omitted from the record now before us.

We have carefully studied the record, and are of the opinion no matter is presented which would call for or authorize a reversal of the case.

The judgment is affirmed. 
      <fc»3Tor other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes
     