
    EMMONS v. STATE.
    (No. 8710.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Rehearing Denied June 10, 1925.)
    1. Criminal law &wkey;1169(9) — Conclusion of witness not prejudicial, where in accord with undisputed testimony.
    In prosecution for murder, testimony of witness that deceased was trying to get away, objected to as a conclusion, held not prejudicial, where undisputed testimony showed that at time spoken of by witness deceased was running away fropi accused.
    2. Witnesses <&wkey;372 (2)— Cross-examination of accused’s brother, as to whether they were not all mad at deceased’s family, not improper.
    In prosecution for murderf cross-examination of accused’s brother, as to whether they did not all get -mad at deceased’s family at time of a certain search of his father’s premises, held not improper; state being entitled to show anything prompting witness to testify for defense.
    3. Criminal law <&wkey;665(2) — Admission of testimony after rule invoked is largely discretionary.
    Admission of testimony of deputy sheriff after rule had been invoked, was largely discretionary, and not reversible error, in absence of abuse of discretion, especially when not offered on any material issue in ease, but more in nature of impeachment.
    4. Homicide 340(4) — Alleged errors in charge on malice and murder cured, where conviction was for manslaughter.
    In prosecution for murder, where conviction was for manslaughter, alleged error in charge pertaining to malice and murder is eliminated.
    5. Criminal law <&wkey;>822(!7) — Charge on manslaughter, considered as a whole, not prejudicial.
    Charge on manslaughter, that provocation must arise at time of commission of offense, and passion should not be result of former prov-ocatiqn, held not prejudicial, when considered in connection with balance of charge.
    6. Criminal law <&wkey;673(I) — Charge on threats by deceased against accused properly limited to those communicated.
    In prosecution for murder, charge on threats made by deceased against accused was properly limited to those which had been communicated to accused.
    7. Criminal law <&wkey;823(2) — Charge as to threats held, in view of other charges, not on weight of evidence or erroneous.
    . Charge as to justification on ground of threats, held not erroneous as on weight of evidence, placing burden of proof on accused, or depriving accused of- right to have transaction viewed from his standpoint, in view of other charges.
    On Motion for Rehearing.
    8. Criminal law <&wkey;808j/2 — Charge on justification.for killing, based on threats against accused, not error.
    In prosecution for murder, charge in the words of Pen. Code 1911, art. 1143, that threats would not afford justification unless deceased manifested intention to execute his threats at time of killing, which court applied to instant case, held not error.
    Commissioners’ Decision.
    Appeal from District Court, Freestone County; J. R. Bell, Judge. •
    O. C. Emmons was convicted of manslaughter, and lie appeals.
    Affirmed.
    Williford & Geppert and Edwards & French, all of Fairfield, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was charged by indictment with murder by shooting and killing Mack Ryno with a pistol, on or about the 4th day of September, 1923, in a barber shop at Wortham, in Freestone county, and was tried and convicted of manslaughter in the district court of said county on January 14," 1924, and his punishment assessed at 3 years’ confinement in the penitentiary; from which conviction he has appealed to this court, seeking a reversal of the judgment of the trial court upon alleged errors of said court, as shown by his bills of exceptions 1 to 15, inclusive.

The evidence in the case shows that the defendant shot the deceased twice, and shot at him the third time while he was running across the street from said barber shop. It is further shown from the record that both defendant and deceased were young men about 19 or 20 years of age and had former trouble between them on two different occasions, in which the deceased appeared to be the aggressor, and that he had on several occasions made serious threats against the liie of defendant, and liad drawn a knife on tile defendant on one occasion, and armed himself with a pistol, apparently for the purpose of attacking the defendant. The evidence further tended to show that the defendant’s general reputation was that of a quiet, peaceful, law-abiding citizen, and that of the deceased of an overbearing naturq, and one likely to carry into execution his threats. Some of said threats had been made known to the defendant prior to. the homicide, and some had not. In short, the testimony adduced by the state on the trial tended to show, and was to the effect, that at the time of the homicide the deceased was unarmed and was making no demonstration or doing or saying anything tending to show that he intended to carry any threats into execution at the time that the defendant shot him. Upon the other hand, the evidence adduced upon the part of the defendant and his witnesses was in effect tending to show — and especially that of the defendant himself — that at the time of the homicide the deceased was advancing upon him with his right hand behind him, and with a vicious look, and that he shot in the protection of himself and in his own self-defense.

The above is a sufficient statement of the facts, in the ease to base our opinion upon the questions raised by the bills of exceptions.

Appellant complains of the action of the trial court in permitting the witness Joe Battle to testify in behalf of the state, while explaining the location of the shop and the actions of the defendant and the deceased, and with reference to the movements of the deceased, “but he is trying' to get away,” because same calls for the conclusion of the witness. We think the court’s explanation of this bill shows it harmless; and, furthermore, the testimony of the witness Day is to the same effect, in that it shows that at that time the deceased was running towards the door, and in fact the undisputed testimony shows that, at the time mentioned by the witness, the deceased was running away from the defendant.

In bill of exception No. 2, appellant complains of the court’s permitting counsel for' the state to ask the witness Demming as to the feeling between the witness and the Ryno family. In view of the court’s qualification and explanation of the bill, we see no error in that particular.

In bill of exception No. 3, appellant complains of the court’s action in permitting the state to ask the defendant’s brother if the officers of Navarro county had not searched his father’s premises, and in permitting the witness to answer in the affirmative, and to ask said witness if they all did not get mad at the Rynos. The court’s explanation of this bill we think eliminates it from any error complained of by the appellant; and besides, under the facts as stated, it occurs to us that the state was entitled, on cross-examination, to ask the witness the questions for the purpose of showing what, if anything, prompted him to testify favorably to the defense, and in order to give the jury all the circumstances in order to weigh the testimony of said witness.

In bill of exception No. 4, the defendant complains of the action of the court in permitting the deputy sheriff, after the rule had been invoked, to testify in behalf of the state. It appears from the bill that said testimony was not offered on any material issue in the case, but was more in the nature of impeachment. Furthermore, such matters are left largely to the discretion of the trial judge, and, in the absence of abuse of such discretion, there is no reversible error. We see no merit in this bill.

In appellant’s bills of exceptions Nos. 5 and 6, complaint is made of the court’s charge pertaining to malice and murder; but, in view of the verdict of the jury, finding the defendant guilty of manslaughter, such complaint, if error, would be eliminated.

In bill of exception No. 7, appellant complains of the court’s charge on manslaughter, wherein the court charges the jury:

“That the provocation must arise at the tíme of the commission of the offense, and that the passion is not the result of a former provocation.”

The court also, in this connection, charged the jury:

“Although the law provides that the provocation causing 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 of anything the deceased did, or by reason of any threat or threads made .by deceased toward the defendant, if any, the defendant’s mind at the time of the billing was incapable of cool reflection, and that said facts and circumstances, if any, 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.”

Taking this portion of the charge given, in connection with the other portions of the' charge on manslaughter, we see no error therein.

In bill of exception No. 9, appellant complains of the thirteenth paragraph of the court’s charge, wherein the court limits the threats to those that had been communicated to the defendant; appellant assigning as a reason for said complaint that the court, in effect, took from the consideration of the jury the evidence of all threats made by the deceased against the defendant which were not communicated to the defendant, and in effect contends that the court should have charged the jury on uncommunicated threats as well as communicated threats.

In Branch’s Criminal haw, § 482, and the authorities therein cited, it is set out:

“The- court should charge that if defendant believed that the deceased had threatened the life of defendant, and this threat has been communicated to the defendant before the homicide, and at the time of the homicide deceased by. some act then done manifested an intention to execute the threat, viewed from the standpoint of the defendant, then the defendant had the right to kill” — citing numerous authorities. '

It appears that the court was following the law as laid down above. Besides, in the case of Dunne v. State, 263 S. W. 608, opinion on rehearing, 615, this court, through Judge Hawkins, held that it is not necessary for the court to charge on uncommuni-cated threats. We therefore hold that there was no error committed by the court in this particular.

Appellant also complains, in bill of exception No. 11, of the sixteenth paragraph of the court’s charge, as follows:

“Although you may believe that deceased made threats to take defendant’s life, which were made in defendant’s presence, or were communicated to him, yet, if you find from the evidence, beyond a reasonable doubt, that at the time defendant shot him, if he did, the deceased, Mack Ryno, did or was doing no act which from defendant’s standpoint reasonably appeared to him to indicate or manifest an intention on deceased’s part to carry his threats, if any, into execution, • then you are instructed that th'e defendant could not justify himself on the ground of threats against him,”

—because it is alleged that said charge is on the weight of the evidence, places the burden of proof on the defendant, and takes from the defendant the right to have the transaction viewed from his standpoint at the time he acted. The court fully charged on the burden of proof as being upon the state, and upon reasonable doubt, and told the jury in his charge that they would have to view the matter from the defendant’s standpoint alone, and we find no error in this bill, especially when taking the whole charge into consideration. Besides, we believe it was the duty of the court to charge on this phase of the case, as the testimony raised that issue.

Appellant complains of the following portion of paragraph 15 of the court’s charge, set out as the first section Of said paragraph 15:

“When a defendant, accused of mprder, seeks to justify himself on the ground of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the killing, unless it be shown that at the time thereof the person killed, by some act then done, manifested, an intention to execute the threats so made,”

—because it is contended that this charge-is on the weight of the evidence, puts the burden of proof on the defendant, and deprives the defendant of the right to be judged by the matters and transactions as they appeared to him at the time he acted. We fail to see any error in this charge from the exceptions taken in this bill. When the court’s charge is taken into consideration as a whole, it covers all the objections raised by this bill, and we therefore overrule appellant’s contention.

The above objections, as set out in the bills of exception, are the only objections urged by appellant in his brief. However, we have examined the other bills in the record, and, after a careful consideration of the entire record, we are unable to agree with the contentions made by the appellant in this case. Appellant in his brief has not favored us with any authority on any point raised by him, and we are of the opinion that he has found none sustaining his contentions, or same would have been cited.

The record in this case discloses a ca,se where it was largely left to the discretion of the jury as to which witnesses the jury would believe, that is, whether they would believe the testimony of the defendant and his witnesses or the testimony of the state’s witnesses; and, the jury having passed upon ali the facts, and returned a verdict of manslaughter, which is fully sustained from the testimony of the state in this case, and the court having submitted all phases of the case —murder, manslaughter, self-defense, apparent and real danger, and threats — we find no error in the record, and therefore affirm the judgment of the lower court.

PER 'CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals ánd approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant predicates his motion for rehearing upon the disposition heretofore made of the questions raised by bills of exception 1, 2, and 3, and of his criticism of the fifteenth paragraph of the charge. We have again given attention to these particular matters. The portion of the charge at which exception was directed is a literal copy of article 1143 of the Penal Code. After setting it out as the general statement of the law, the court then makes application of it in language which furnishes no ground of complaint whatever. The explanation of the court, which became a part, of the bills of exception referred to,' when accepted by appellant with the explanation attached, makes it clear that the evidence elicited over objection was pertinent and proper under the circumstances stated.

The motion for rehearing is overruled. 
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