
    DAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1910.
    On Motion for Rehearing, Feb. 8, 1911.)
    1. Indictment and Information (§ 33)— Formal Requisites — Necessity for Signature of Foreman of Grand Jury.
    Failure of the foreman of the grand jury to sign an indictment officially does not invalidate it, the provision of Code Cr. Proc. 1895, art. 432, directing that an indictment be so signed, being merely directory, especially in view of article 565, providing that exceptions to.the form of an indictment may be taken for the want of any requisite or form prescribed by article 439 (embracing the same provision as article 432 as to signature), except the want of the signature of the foreman of the grand jury.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 132-137; Dec. Dig. § 33.]
    2. Criminal Daw (§ 1091) — Appeal—Reservation of Grounds of Review — Sufficiency of Bills of Exceptions.
    The mere statement in a bill of exceptions of facts as grounds of objections is not equivalent to showing that the matters stated as the grounds of objection are true, and a bill of exceptions objecting to the testimony of a witness as to threats made by accused on the ground that they were general, and because decedent was not present, is insufficient where it does not show that decedent was.absent when the statement was made, nor that, tested with reference to other facts, the threats did not refer to decedent.
    [Ed. Note. — For other cases, see' Criminal Law, Cent. Dig. § 2894; Dec. Dig. § 1091.]
    3. Homicide (§ 300) — Murder — Instructions— Self-Defense.
    An instruction on a trial for murder as to the right of self-defense on a reasonable apprehension of death or serious bodily injury held to have given accused the full benefit of his Claim of self-defense.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 614r-632; Dec. Dig. § 300.]
    4. Criminal Law (§§ 763, 764) — Instructions — Weight of Testimony.
    A charge that, if the jury believed that the state introduced a witness who testified substantially that accused had told him that there was not a man with decedent’s name that had nerve enough to stand up before him with a knife, pistol, or anything else, etc., merely submitted to the jury whether such testimony had been introduced, and whether they should credit it as well as the weight they should give it, and was not a charge that the witness as a matter of fact had testified substantially to such effect and on the weight of the testimony.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    5. Criminal Law (§§ 763, 764) — Murder-Instructions — Weight of Testimony.
    A charge that if the jury believed that the state introduced at former trials of the case ■“the following testimony of accused, taken by the stenographer substantially as follows” (setting it out by question and answer), etc., did not invade the province of the jury by charging on the weight of testimony; it being necessary in limiting impeaching testimony to state the substance or purport thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Farris Day was convicted of murder, and he appeals.
    Affirmed.
    E. S. Chambers, B. B. Sturgeon, and J. G. Dudley, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

The indictment in this case was filed in the district court of Red River county on the 30th day of May, 1907, charging appellant with the murder of one Spencer Holt. The case came to trial on December 13th of last year, and resulted in a conviction of murder in the second degree, assessing appellant’s punishment at six years’ confinement in the state penitentiary.

The record is quite a voluminous one, and contains, among other things, 17 bills of exception. These, however, for the most part, are so qualified and explained by the court as to show no error, and are of such a character as not to require discussion. The case was submitted in a very lengthy charge in which the jury were instructed with reference to murder in the first degree, murder in the second degree, manslaughter, and self-defense. The jury were also instructed with reference to the doctrine of provoking a difficulty, and numerous matters of testimony offered by way of impeachment was by the court duly and properly limited.

1. Before the case came on to trial, appellant filed a motion reciting his citizenship of Texas and of the Union, and averring that he could not be prosecuted for murder except on a bill of indictment, and the indictment in this case was invalid, in that same was not signed by the foreman of the grand jury as required by article 432 of our Code of Criminal Procedure of 1895, either officially or in person, and has never been signed, but appears in blank. • The motion alleges that one H. O. Bailey was foreman of the grand jury, and that he resided in Red River county, and that, having been unsigned, said indictment could not have been legally presented through the foreman without his signature thereto. The motion prayed the court* that, if said bill was presented, to require the said foreman of the grand jury, H. O. Bailey, to sign the said bill of indictment officially before he be required to plead to same, and, on failure of said foreman to sign said indictment, that the same be abated. Article 432 of the Code of Criminal Procedure of 1895 directs that the indictment shall be signed officially by the foreman of the grand jury. Upon examination, however, it will be seen that this article does not purport to name the essentials of an indictment, but that same is merely intended as an instruction to the officers as to what they are to do with reference to the preparation of indictments. This same article directs that the names of the witnesses shall be indorsed on the indictment. This provision has in many cases been held to be directory. Article 439 of the Code of Criminal Procedure does set out in detail the requisites of an indictment, and among other requirements there stated is the following provision: Section 9: “It [the indictment] shall be signed officially by the foreman of the grand jury.” This article taken alone would seem to indicate that the indictment would be fatally defective if not so officially signed. It will be noted, however, that article 565 of the Code of Criminal Procedure of 1895 directly refers to and expressly limits and controls so much of article 439 as is herein invoked. Article 565, supra, is as follows: “Exceptions to the form of indictment or information may be taken for the following causes only: (1) That the indictment or information does not appear to have been presented in the proper court, as required by article 439 or 466. (2) The want of any other requisite or form prescribed by articles 439 and 466, except the want of the signature of the foreman of the grand jury, or in the ease of an information, of the signature of the attorney representing the state.” It has therefore been held in this state from a very early day that the failure of the foreman of the grand jury to sign an indictment officially does not invalidate same. Pinson v. State, 23 Tex. 579; State v. Powell, 24 Tex. 135; Hannah v. State, 1 Tex. App. 578; Campbell v. State, 8 Tex. App. 84; Jones v. State, 10 Tex. App. 552; Weaver v. State, 19 Tex. App. 547, 53 Am. Rep. 389; Robinson v. State, 24 Tex. App. 4, 5 S. W. 509.

2. The next matter of importance relates to the action of the court in respect to the testimony of one Cleve Guions. In order to make this matter clearly understood, since the bill is very short, we copy it entire: “Be it remembered that on the trial of the above-entitled cause the state offered to prove by the witness Cleve Guions that the defendant stated to him when he wanted to get his pistol, that he said he would kill some God .damned son of a bitch before night, to which the counsel for the defendant objected, for the following reasons, viz.: We object to anything that was said generally without any specific remark concerning any one, and we object to anything he said generally, and the deceased was not present, and the remarks were not directed to any one, and the court overruled the objections and said witness answered. The defendant excepted to said ruling and herewith tenders his bill of exceptions, and asks that the same be signed, sealed! and made a part of the record in said cause, which is accordingly done. This testimony, if not admissible, was withdrawn, and the jury instructed not to consider it for any purpose whatever. Ben H. Denton,' Judge.” We think this bill is not in such shape as to support appellant’s contention. In the first place, it is not shown in the bill that appellant was absent at the time the statement was made, nor is it shown in the bill that, tested with reference to other facts, the threat did not refer to the deceased. We have uniformly held that the mere statement of facts as grounds of objection is not equivalent to showing that the matters stated as grounds of objection are indeed true. It will further be noted that the bill shows that the court overruled the objections, and that the witness answered. What his answer was does not clearly appear. It does appear what the offered proof of the state was. Whether the answer of the witness supported and coincided with this offered proof we are left to infer. We think clearly the bill is insufficient, Again, since the testimony was withdrawn, it was not of such harmful character as necessarily to operate to appellant’s prejudice.

3. Complaint is made of the following paragraph of the court’s charge: “If you believe from the evidence that the defendant shot the deceased at the time and place alleged in the indictment, yet, if you further believe that just prior to or at the time of the shooting the defendant was assaulted with a stool, or a knife, or a baseball bat by deceased and his brother, or either of them, or was attacked by deceased and his brother Ivan Holt, or either of them, or both or either of them had made some demonstration as if about to attack him, and that such assault or attack or demonstration (if any) created in the mind of the defendant such a degree of anger, rage, sudden resentment, or terror as to render his mind incapable of cool reflection, and in such a state of mind he shot the deceased, then, if you do not find him justifiable under the instructions given you, he would not be guilty of any higher grade of offense than manslaughter.” This is objected to for the reason that if, as claimed by counsel for appellant, appellant had been assaulted or attacked by deceased and his brother, or either of them, or if both or either of them had made a demonstration as if about to attack him, he would have the right to shoot in his own self-defense, and would not have been guilty of any grade of offense whatever, and the court was in' error in instructing the jury that notwithstanding they found such an assault or that his adversaries were attacking. him, or made a demonstration upon him, that he would be guilty of no higher grade of offense than manslaughter, which they claim meant to the jury that, notwithstanding they had assaulted him or attacked him, yet, if he did the shooting, that it would not have been done in self-defense, and he would have been guilty of manslaughter. It will be noticed that this instruction was given with the qualifying clause that under the conditions named in the charge, if the mind of appellant was aroused to a degree of anger, rage, or sudden resentment such as to render it incapable of cool reflection, and if under instructions thereafter given they did not find appellant justifiable on self-defense, that he would be guilty of no higher grade of offense than manslaughter. This charge was immediately followed by a lengthy charge on self-defense, in which, among other things, the jury were instructed as follows: “If the defendant just before the shot was fired believed from the words, acts, or conduct of the deceased and his brother, or either of them, that they, or either of them, were seeking to get possession of some weapon or instrument, and it reasonably appeared to the defendant that he was in danger of death or serious bodily injury from the deceased and his brother, or either of them, if they, or either one, did get possession of any such weapon or instrument, then the defendant would have the right to shoot and continue to shoot until such danger or apparent danger had ceased. Now if you believe from the evidence that the defendant killed Spencer Holt, but you further believe that just prior to or at the time of the shooting said Spencer Holt and his brother Ivan Holt, or either of them, had made, or was making, an unlawful attack upon the defendant, or either one or both had done, or was doing, some act or acts which either alone or together with accompanying words of both or either of them produced in the defendant’s mind, as viewed from his standpoint, a reasonable apprehension of death or serious bodily injury at the hands of said Spencer Holt and his brother Ivan Holt, or either, of them, and that defendant did such killing to protect himself from such danger or apparent danger, then such killing was in justifiable self-defense, and if you so find, or if you have a reasonable doubt as to whether such killing was in justifiable self-defense or not, 1 you will acquit the defendant” We have not infrequently held that it is proper for the court to charge on manslaughter under conditions quite similar to the case before us on the theory that, although the jury may not have believed that the acts and conduct of the deceased were sufficient to justify appellant in acting in self-defense either in respect to real or apparent danger, yet nevertheless his attitude or conduct might be- such as to reduce the offense to manslaughter. See Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 335. In this case by this charge appellant was given the full benefit of his claim of self-defense, and an appropriate charge on manslaughter based on certain evidence which the jury might have accredited and believed to be sufficient to have so reduced his offense.

4. Complaint is made of the charge of the court in respect to the instruction with reference to the testimony of one Bryson to the effect that appellant told him that there was not a Holt by the' name that had nerve enough to stand up before him with a knife, pistol, or anything else. The objection is that the charge instructs the jury as a matter of fact that the witness Bryson testified substantially to this effect. It is claimed that this charge is on the weight of the testimony, and instructed the jury what the testimony is upon said issue, and invaded the province of the jury in this respect. This matter is contained in the 35th paragraph of the court’s charge, which includes a number of impeaching matters. The particular paragraph is to this effect: “And if you further believe that the state introduced the witness Ben Bryson, and he testified substantially that ‘Farris Day told him that there was-not a God damned Holt by the name that had nerve enough to stand up before him with a knife or pistol or anything else.’ ” It will thus be seen that the charge was submitted to the jury to ascertain whether such-testimony had been introduced, and whether they should credit the evidence therein referred to as well as the weight they would give it. We attach no importance to the word “substantially.” If it had been entirely omitted, it would not have changed the sense of thg instruction. After referring to- and quoting literally much of this impeaching testimony, the court then charges the jury that the only purpose for which all of this testimony was offered by the state and admitted by the court was that they might consider it for whatever it was worth for the sole purpose of passing upon the credibility of the witness Farris Day, and that such testimony so introduced by the state-could not be considered for any other purpose.

5. The next complaint refers to the same section of the court’s charge, and relates to appellant’s application, for a continuance, made at the spring term, 1909, as well as certain testimony given by appellant on a former trial which was reproduced from the stenographer’s notes and set out in the charge in detail by question and answer. It is urged that this is a charge on the weight of testimony, and tells the jury what the testimony was upon the former trial in the cause, and does riot leave it to the jury to say whether or not such was the testimony. The charge on this last-mentioned matter is as follows: “And if you further believe that the state introduced before you the following testimony of the defendant at the former trials of this case, taken by the stenographer, which is substantially as follows:” This charge, properly construed, does not invade the province of the jury. In order to limit any impeaching testimony, it is indispensable that the substance or purport of. same should be stated to the jury so that they may be advised of what it is that is to be limited by them, and, unless it was definite enough to serve this office, the charge so limiting the testimony would be wholly worthless and a defendant in such ease justly aggrieved. In no other respect except those above stated is the charge of the court complained of. Considered altogether, it is a fair, adequate, and unexceptional presentation of every issue arising on the trial of the case. As stated, we have not reviewed ■many of the questions raised on the appeal, though they have all been carefully considered. In the light of the court’s explanation to the several bills of exception, the other matters relied on as grounds of reversal seem to us so clearly unavailable as not to require discussion.

Finding no error in the record, it is ordered that the judgment of conviction be, and the same is hereby, affirmed.

McCORD, J., absent.

On Motion for Rehearing.

PRENDERGAST, J.

The motion for rehearing in this case presents nothing which was not decided by the opinion originally delivered herein. It simply takes issue with the decision as made.

The record is quite lengthy but we have carefully gone over the whole of it again on this motion for rehearing and are satisfied with the original opinion herein. We believe that all of the questions were correctly decided thereby. It is therefore ordered that the motion for rehearing be overruled’.  