
    HILLEN v. STATE.
    (No. 11127.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    1. Homicide <g==>193 — Where accused claims to have killed in self-defense, state has right to show deceased was unarmed.
    In case where accused, taking life of another, claims to have acted in self-defense in firing shot which killed deceased, state has right to show deceased was unarmed.
    2. Homicide <S==>244(I) — Where accused claims to have killed in self-defense, state may show deceased was unarmed by circumstances.
    In case where accused claims to have acted in self-defense in killing another, state may show that deceased was unarmed by circumstances, such as that no weapon was found on his body, or that his weapons were in different places at time of killing.
    3. Witnesses <§=»329 — Cross-examination of defendant’s witness as to whether he knew deceased was deputy sheriff held relevant to issue of witness’ knowledge of deceased’s reputation respecting which he testified.
    In prosecution for homicide, where accused put witness on stand to prove that deceased had reputation in community for being violent and dangerous man, testimony elicited from witness on cross-examination, over objection, that he knew deceased was deputy sheriff and was paid salary by the people of the town, was relevant, as likely to effect jury’s opinion of the accuracy of his knowledge, since any circumstance which fairly tends to make proposition at issue more or less probable becomes relevant.
    
      4. Witnesses <@=>329' — Permitting cross-examination of witness, testifying in homicide case to deceased’s bad reputation, as to whether he knew'deceased was deputy sheriff, held discretionary.
    Permitting witness in homicide case to be asked on cross-examination whether he did not know that deceased was a deputy sheriff, and that his salary was paid by citizens of the town, over objection, hold entirely within reasonable discretion of trial court, where defendant sought to prove deceased’s bad reputation by such witness.
    5. Homicide <@=>163(2) — Admission of testimony, in homicide case, that deceased was most highly valued deputy sheriff town ever had, held prejudicial.
    In prosecution for homicide, admission of testimony of witness that deceased was most highly valued deputy sheriff town ever had, and that he was only one whose salary was ever paid by citizens of town, held error, since it was' not an issue in ease, and could only be prejudicial to accused.
    6. Homicide <@=163 (2) — Cross-examining accused in homicide case as to how long it had been since deceased was hired as deputy sheriff should not have been permitted.
    In cross-examination of accused in prosecution for homicide, question as to how long it had been since deceased was hired as deputy sheriff should not have been permitted.
    7. Homicide <@=166(3)— Permitting cross-examination of justice of peace issuing warrant, on which accused in homicide case was attempting to arrest deceased, as to whether complainant was thief, held error.
    In prosecution for homicide occurring when accused, a constable, was seeking to arrest deceased on warrant issued on complaint of a relative, admission of testimony elicited on state’s cross-examination of justice of peace who issued warrant as to arrest of complainant by accused on warrant issued by witness to show complainant’s character and motive, held error, since it was not an issue.
    8. Homicide <@=I63(2) — Permitting state to prove that another had committed assault and battery with which deceased in prosecution against constable for homicide was charged held error.
    In prosecution for homicide occurring when accused, a constable, was seeking to arrest deceased on warrant charging deceased with assault and battery, permitting state to prove over objection that another pleaded guilty to the assault and battery charged, to show motive and intent of accused, held error as irrelevant.
    9. Homicide <@=163 (2) — Refusal to allow accused in homicide case on cross-examination to show specific acts relating to deceased’s reputation for peace, which was in issue, held error.
    In prosecution for homicide where deceased’s good reputation for peace and quietude was shown by state refusal to permit cross-examination of character witness by defendant as to specific acts of violence reflecting unfavorably on trait of character in issue held error.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    George Hillen was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Sanders <& Sanders, of Center, for appellant.
    Davis & Davis, of Center, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manslaughter; punishment, five years in the penitentiary.

Appellant was constable of the precinct in Shelby county in which was located the town of Tenaha. Deceased had been local deputy sheriff at said place for a number of years. The men met in said town on the occasion of the homicide, and after some conversation started across the street. The testimony conflicts as to the attitude and relative positions of the two men as they crossed the street and as to who began the difficulty and how it originated. There seems no conflict over the fact that a complaint had been filed on that day in the justice court at Tenaha by one Conway, charging deceased with an assault and battery, and that a warrant for the arrest of deceased had been placed in the hands of appellant. He claimed that he mentioned to deceased the fact that he had this warrant of arrest and that it so angered deceased that the latter made gestures, accompanied by words, which led him to believe that deceased was about to take his life.

In this case the accused claimed to have acted in self-defense in firing the shot which took the life of deceased. In such case the state has the right to show that the deceased was unarmed. Grubb v. State, 43 Tex. Cr. R. 75, 63 S. W. 314; Thomas v. State, 45 Tex. Cr. R. 114, 74 S. W. 36. Such fact may be proven by circumstances, such as that no weapon was found on his body, or that his weapon or weapons were at other and different places at the time of the killing.

Appellant claimed that, when he informed deceased that he had the warrant for his arrest, the latter said that appellant could not arrest him. Appellant said he told deceased that he was wrong; he knew an officer’s duty; and that deceased turned white and started toward appellant. Appellant said, he got off the sidewalk; that deceased said, “You are pushing this damned business,” and kept on coming toward appellant, and said he was going to kill the man who made the complaint, and appellant too. Appellant said he tried to reason with deceased, who kept on advancing. Appellant said he told him to stop, and retreated 25 or 30 steps, holding his pistol in his hand. Appellant testified that deceased said he was goftig to make appellant “Eat that damned thing,” and that deceased put both of his hands in his pockets, where appellant said he knew deceased frequently carried a pistol, and at this point appellant said he shot. The state’s theory, supported by the testimony of its witnesses, made out a case of murder and showed an entirely different state of facts.

Appellant put Mr. Edge on the stand and proved by him that deceased had a bad reputation in the community in which he lived for being a violent, overbearing, and dangerous man. In cross-examination of Edge the state had him admit, over objection, that he knew that deceased was deputy sheriff at Tenaha and was paid a salary by the people of said to.wn. We believe the testimony relevant. Any circumstance which fairly tends to make the proposition at issue more or less probable becomes relevant. McGuire v. State, 10 Tex. App. 125; Luttrell v. Stare, 40 Tex. Cr. R. 651, 51 S. W. 930; Lane v. State, 73 Tex. Cr. E. 266, 164 S. W. 378; Wharton’s Crim. Ev. §§ 20, 21; State v. O’Neil, 13 Cr. 183, 9 P. 286; Levy v. Campbell (Tex. Sup.) 20 S. W. 196. Mr. Underhill, in section 855 of his work on Criminal Evidence, says:

“The limits within which either party may cross-examine upon matter not strictly relevant, hut which affects the credibility of the witness, is largely discretionary, and a reasonable exercise of this discretion will always be allowed.”

Beverting to the testimony of Edge, we observe that he said he lived 10 or 12 miles from Tenaha over in Panola county. Tenaha is in Shelby county. Edge was able to recall only one man who said deceased was a dangerous man, and this person also lived near Edge and in Panola county. Witness said he had heard others reflect upon deceased but could not name them. We think it entirely within the reasonable discretion of the trial court to permit this witness on cross-examination to be asked if he did not know that the deceased was a peace officer in the town in which he lived, and that his salary as such was paid by the citizens of said town. That the citizenship of a town would voluntarily pay for the services of one as a peace officer in the town would be a circumstance which, if known by the witness, might affect the jury’s opinion of the accuracy of the knowledge of said witness, he living in another county many miles distant from the place where the man lived whose reputation was attacked by his testimony.

Complaint is made in another bill of exceptions that Mr. Barber, a state witness, was allowed to answer the state, over objection, that he had never heard of any other deputy sheriff except deceased who had been hired by the citizenship of Tenaha as such officer. • This presents 'a totally different question from that arising upon the testimony of witness Edge, supra. Here we have a man who lived at Tenaha; had himself been deputy sheriff at such place, who is thus allowed to place before the jury the fact’ that, among all the local deputy sheriffs had in the town of Tenaha, deceased was the only one so highly regarded by the citizenship as' that they voluntarily paid his salary themselves. The question arises: Why such proof, and why show the jury that appellant had killed the most highly ' thought of deputy sheriff the town ever had? That appellant’s cause was harmed by such proof is plain. He was showq to have killed an officer who was more highly valued by his people than any other one who had ever held such office. We regard the admission of this testimony as error.

What we have just said applies to the same question asked witness Burns, viz.: Had he ever heard of any other'man who had been hired by the citizenship of Tenaha to act as deputy sheriff? The proposition that the citizens of Tenaha valued more highly the services of deceased as a peace officer than any other man was not an issue in this case, and such proof could have been only harmful to the cause of appellant.

Appellant took the witness stand and gave his version of the killing. On his cross-examination he was asked how long it had been, at the time of the killing, since the citizenship of Tenaha, a village of 400'popula-tion, had hired deceased as an officer. We note that this was not the cross-examination of a character witness for the purpose of testing his accuracy or the extent of his knowledge, but was an effort on the part of the state to keep before the jury the fact that appellant had killed one who was a valued officer, whose services the citizenship of the entire town valued highly enough to privately pay his salary. We do not believe this testimony should have been permitted.

As stated above, appellant claimed that he was seeking to arrest deceased at the time of the lading, having a warrant issued upon a complaint made by Preston Conway. Conway was not a witness in the case, but was shown to be related to appellant. Mr. Burns, justice of the peace, who issued said warrant, was a witness for the defense on this trial. He was asked by the state on cross-examination if appellant did not arrest said Conway for theft on - a warrant issued by witness. The question and its answer were objected to by appellant for various reasons. The learned trial court in his qualification to this bill of exceptions says he admitted the testimony on the question of motive of appellant and Conway and as showing the kind of person Conway was who had complained against deceased, and after the reputation of deceased had been attacked. We think the learned trial court in error in admitting this testimony. Whether Conway was a thief or not was not an issue in the case, nor was it an issue that deceased had any right to assault a man because he was a thief, or because said party had been arrested for theft. We are unable to see any reason for such proof in this case.

The state proved, over objection, that after the killing one Watson pleaded guilty before Justice Burns to an assault and battery on Preston Conway. Complaint against Watson was shown to have been filed by Conway on the same day he filed complaint against deceased. We observe that Watson was not a witness in this case. In his qualification to the bill reserved to the admission of this-testimony, the trial court said'he admitted same on the motive and intent of appellant. Again, we are unable to see the relevance of the evidence to the purpose for which it was admitted, or to any other legitimate issue in this case. We can conceive how such testimony might be used as supporting a plea that, Watson having pleaded guilty to the assault, this tended to show that he and not deceased was the party guilty of an assault and battery upon Conway, and that Conway (a relative of appellant) wrongfully complained against deceased, possibly at the instigation of appellant, his relative. We perceive no issue in this case to which the testimony could be properly applied.

The state proved by Johnson the good reputation of deceased for peace and quietude. Cross-examining Johnson appellant asked if witness did not know that, shortly before the death of deceased, the latter made a deadly assault with a pistol on one Jackson. Objection of the state to questions relative to specific acts of violence was sustained. Mr. Branch, on page 117 of his Annotated P. C., cites many authorities supporting the proposition that, when good character is proven, the opposite side on cross-examination may ask as to specific acts which reflect unfavorably on the trait in issue. See, also, Holloway v. State, 45 Tex. Cr. R. 303, 77 S. W. 14; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Roberson v. State, 83 Tex. Cr. R. 248, 203 S. W. 349. Substantially the same question was asked, and the same answer expected, of another witness, objection to whose testimony was sustained, as shown in bill of exceptions No. 14c, and the same ruling was made by the court below. We think the bill manifests the same error as the one just discussed.

This court notes with regret numerous bills of exceptions in this record purporting to be bystanders’ .bills. Most, if not all of these, are defective for one reason or another. The practice as to such bills originated before the days when competent and reliable court stenographers by their constant presence and efforts made it possible for records on appeal to be prepared accurately without the former and ancient inevitable conflicts when the statement of facts and bills of exception were prepared from memory or from hasty notes. There still may arise cases when such bills become necessary, but certainly there ought to be small necessity for such number of bills as appear in this record. The reconciliation of such bills causes this court a great deal of trouble, and it appears to us that same could in most cases be avoided.

Por the errors above mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
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