
    SIMMONS v. STATE.
    (No. 4860.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1920.
    On Motion for Rehearing, April 28, 1920.)
    I. Homicide &wkey;>183 — Conversation by accused held inadmissible in prosecution for assault to murder.
    In a prosecution for assault to murder committed on a merchant, defendant’s testimony that, on morning of the assault, and before he saw the merchant, he conversed with another merchant who had a mortgage on defendant’s crop, and that such other merchant told him that he had got supplies already from the merchant assaulted, and that he would refuse further credit until such other bill was paid, was inadmissible for defendant, not tending to justify or mitigate offense.
    .2. Criminal law 1170i/2(3) — Error in improper#questlons cured by sustaining objections.
    1 In prosecution -for assault to murder, where prosecuting attorney improperly asked whether there were not a lot of people who wanted to mob defendant for what he had done, and whether or not practically every man in the town was outraged by what had happened, impropriety in such questions was cured by trial court’s action in sustaining objection promptly, .defendant not requesting instructions, matters should not be considered.
    3. Homicide <&wkey;>295(l) — Charge no verbal provocation would justify assault not called for.
    In prosecution for assault to murder, where trial court gave defendant his unlimited right of self-defense, and gave no charge on provoking the difficulty, a charge that no verbal provocation (defendant having called the assaulted person by an insulting term, and thereby provoked him to strike) would justify an assault was not called for.
    4. Criminal law <&wkey;829 (5) — Refusal of charge on right to go armed not erroneous in view of charge on self-defense.
    In a prosecution for assault to murder, where court in his charge gave defendant his right of self-defense without limitation, refusal of charge on right to go armed held not erroneous.
    5. Homicide <®=^300(i) — Charge on right to arm properly refused; “arming”; “weapon.”
    Defendant’s act in sharpening a borrowed pocketknife, opening it, and carrying it up his sleeve when going to meet the person ultimately assaulted was not “arming” himself as contemplated by Texas law, a pocketknife not being a “weapon,” and a charge on right to arm himself was properly refused in his prosecution for assault to murder, as contemplating erroneous idea his acts were justifiable.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Weapon.]
    On Motion for Rehearing.
    6. Criminal law <@=o413(2) — Testimony as to defendant’s remark while sharpening knife inadmissible as self-serving.
    In prosecution for assault to murder defendant’s creditor, whom he cut with a borrowed pocketknife, where statement of blacksmith proved that short time after assaulted person demanded payment of his debt from defendant, latter was seen in blacksmith’s shop, sharpening his knife on a whetrock, testimony of blacksmith on cross-examination by defendant that at the time he told the blacksmith, if his creditor would give him a little time, he would pay what he owed held, inadmissible as self-serving.
    7. Criminal law <&wkey;II70!/2(3) — District attorney’s action in repeating question finally excluded harmless.
    In prosecution for assault to murder, action of district attorney in repeating question seeking to elicit opinion of witness, the assaulted person, to which trial court finally sustained objections, and which was not answered, held harmless to defendant.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Andrew Simmons was convicted of assault to murder, and appeals.
    Affirmed.
    Wilcox & Graves, of Georgetown, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   EATTIMORE, J.

The original opinion in this case is withdrawn, and that which follows is substituted.

In this case the appellant was given three years in the penitentiary for assault to murder I. C. Prewitt, in the town of Granger, Williamson county, Tex. The assault was with an ordinary pocketknife, shown by the evidence to have a blade a little over 3 inches long. Two blows were struck by appellant, one of which made a cut some 14 inches long down and across the shoulder and arm of Prewitt, and the other penetrated the chest cavity and severed three ribs.

It appears from the evidence that appellant owed Prewitt a small debt, which was about to become barred by limitation, and that on the morning of the day of the difficulty Prewitt asked him for its payment; and, when that was refused, he asked for a note, which also was refused. Prewitt then informed appellant that he would sue him the following Monday, and .the men separated. Appellant shortly thereafter secured a knife from a negro man, stating at the time, according to one witness for the state, that he was going to kill the damn son of a bitch. This knife appellant then took to a blacksmith shop and whetted. The evidence further showed that later in the day appellant accosted Prewitt on the street, and in the course of the conversation cursed him, calling him to his face a damn son of a bitch, whereupon Prewitt struck appellant with his fist, and was cut as aforesaid with said knife. At the time appellant began this last conversation with Prewitt, it seems — and in fact he testified — that he had the knife open in his hand, with the blade concealed up his sleeve. Eor himself, appellant stated that when he went to see Prewitt on the occasion of the cutting, he thought he would get a compromise; that he thought Prewitt was going to do something that would cut off his credit with the merchants, and prevent his getting supplies for his family.

.Appellant here alleges that error was committed, as shown by his bill of exceptions No. 1. From said bill it appears that a question, or, in substance, one certain question, was asked by the district attorney of the prosecuting witness a number of times, to which objection was made. Examining the bill further, it appears that when objection was urged by appellant, the form of the question would be altered by the district attorney before the court could make any ruling, and that finally, when the question was fully asked, appellant’s objection thereto was sustained. We think the question asked was clearly improper, but as same was not answered, and the court sustained the objection, we do not conclude that the case should be reversed for this reason.

On the trial, the state proved by the witness Prewitt that, when he asked appellant to give him a note for the debt, appellant refused, and told him he would not pay him. On cross-examination, this witness said appellant stated that, if he made it this fall, he would pay this fall, and if he did not make it this fall, he could not. Thereafter, when the state’s witness Winningham was on the stand testifying that shortly after the first conversation between the parties appellant was at his blacksmith shop, sharpening a knife and talking to witness, appellant proposed to prove by said witness that in this conversation appellant told him that if Prew-itt would give him a little time he intended to and would pay the bill. We do not think this admissible. If appellant assaulted Prewitt because the latter was going to sue him on Monday, the offered statement contains neither justification nor mitigation. If, on the other hand, he cut Prewitt because the latter assaulted him, as was clahned on the trial, the statement' offered could not affect his right of self-defense. Branch’s Crim. Daw, § 337, is cited. We have examined each authority there mentioned, and find nothing supporting this contention of appellant. What was said by appellant to Win-ningham neither explains nor gives character to his act in cutting Prewitt. In this connection, a bill is presented, complaining that defendant’s witness Reynolds was not permitted to make answer to a certain question, but an examination of bill No. 7, wherein this matter is set forth, shows that when it came up the appellant excused said witness without objection being made by the state or sustained by the court, and no error is presented.

Appellant wished to testify that on the morning of the day of the cutting, and before he saw Prewitt, he had a conversation with Mr. Reynolds, a merchant at Granger, who had a mortgage on appellant’s crop, and a contract to furnish him $100 worth of supplies during the current year, and that Reynolds told him that he had gotten $135 worth of supplies already, and that he would refuse to credit him further until that was paid. The reason for wishing to have this statement in evidence appears to be that when appellant talked to Prewitt later he says it occurred to him that one reason why Reynolds had refused him credit was that Prew-itt had told Reynolds of his unpaid bill against appellant; also that he thought Prew-itt had reported him to the Merchants’ Association, thereby depriving him of his credit with Reynolds. There is absolutely nothing in the record to justify such conclusion or thought on the part of appellant; and, while we think such belief on his part might have been offered on behalf of the state, if known to them, as affording a reason why appellant might entertain a grudge against Prewitt, still we think such evidence would neither justify nor mitigate his offense, if any, in making such assault.

Appellant’s witness Ulmer Young testified that one Sullivan tried to get at appellant with a knife shortly after the occurrence of the cutting, and while appellant was in the custody of the officer. Immediately thereafter, upon cross-examination, state’s counsel asked said witness as follows: “Since you mention it, were there not a lot of people there who wanted to mob him for what he had done?” The court promptly sustained appellant’s objection to this, and the state’s attorney asked further, “Practically every man in town was outraged by what had happened?” to which also appellant’s objection was immediately sustained. Appellant complains here by his bill of exceptions to the! asking of such questions. That such questions were uncalled for and manifestly improper is apparent,, but, at most, the trial judge could only sustain the •objections, and, if appellant so desired, instruct the jury that such questions should not be considered by them, and warn counsel for the state against the repetition of such character of questions; but if the trial court sustained such objections, and took any other action which might be desired by appellant in the premises, we would not feel justified in reversing the case because of the fact the state’s attorney asked such improper questions. The state, through her representative, the district attorney, can- always afford to be perfectly fair in her prosecutions, and care should be exercised that only .questions should be asked and arguments made which are within the fair rules of practice, and the trial court should promptly repress transgressions of such rules.

Appellant asked two special charges, one to the effect that Prewitt was not justified, by reason of the epithet applied to him by appellant, in striking appellant with his fist just prior to the cutting. The court told the jury that no verbal provocation would justify an assault, but in view of the fact that the court gave to the appellant his unlimited right of self-defense, and gave no charge on provoking the difficulty, we think said charge was not called for. The court told the jury that if from appellant’s standpoint at the time it appeared to him that he was in danger of serious bodily Injury, or loss of life, and that he committed the alleged assault in defending himself, he should be acquitted.

The other special charge we do not believe to be called for. The trial court told the jury that appellant would have the right to approach the prosecutor, Prewitt, and endeavor to adjust any difference, and that such approaching would not deprive appellant of any right of self-defense: Said second special charge sought to have the jury told that appellant had the right to arm himself and make such approach armed, if he saw fit. Inasmuch as the court’s charge gave to appellant his right of self-defense without limitation, it would not be error to refuse to charge on the right to go armed. See Branch’s Ann. Penal Code, § 1950, and authorities cited.

In addition, we note that appellant had only an ordinary pocketknife, which he testified he had open and up his sleeve- at the time he approached Prewitt. This court held in the Thornton Case, 65 S. W. 1108, that where the injury was inflicted with an ordinary pocketknife, a charge on his right to arm himself was not called for, a pocketknife being commonly carried by every man,' and not being a weapou in contemplation of law. Sharpening one’s pocketknife and opening it and carrying it up one’s sleeve is not arming oneself as contemplated by our law, and such a charge would have conveyed the erroneous idea that such acts were justifiable.

We have carefully considered this record, and, finding no error for which we think the judgment should be reversed, it is ordered that the same be affirmed.

On Motion for Rehearing.

In his motion for rehearing, appellant presents two questions, the first urging that we were in error in holding inadmissible what was stated by appellant to the witness Winningham. Said witness was put upon the stand, and by him the state on direct examination only proved that a short time after Mr. Prewitt, the injured party, demanded of appellant that he pay what he owed or else be sued, appellant was seen in Winningham’s shop sharpening a knife on a whetroek. The state asked for no conversation between Win-ningham and appellant, 'and none appears on direct examination. Upon cross-examination, appellant desired to prove by this witness, that in a conversation at the time he was sharpening his knife, he told Winningham that if Prewitt would give him a little time he intended to and would pay what he owed Prewitt, but this conversation was rejected by the trial court Its admissibility is urged upon the ground that when a part of a transaction is offered by one party, the whole of said transaction may be offered by the other party, and Taylor v. State, 50 Tex. Cr. R. 377, 97 S. W. 473, is cited and relied upon. In that case, a borrowed ring was pawned, and when the owner demanded its return the accused said he had pawned it. The accused sought also to put in evidence, as a part of his statement that he had pawned it, the further statement then made that when he pawned the ring he intended to redeem it and return it to the owner. This court held that the latter part should have been admitted. The general rule seems to be well' understood thdt, when one party puts in evidence a part of a conversation, his opponent may place in evidence all that was then said on the same subject that materially sheds light on the matter first introduced. So of an act, when proven by another party, whatever was said or done in that connection which would make clear the status of said act in its relation to the issue affected thereby would be admissible on behalf of the opposite party. However, we find ourselves unable to make any application to the instant, case of this principle. The act of sharpening a knife, proven by the state, would make admissible any statement of appellant which would explain or shed light on the sharpening of said knife. That appellant intended, if given time, to pay Prewitt would not affect or change the attitude of the fact in evidence that he was sharpening the knife with which he shortly thereafter cut Prewitt. Said statement would have been as pertinent and provable, if made by him to any other witness between the time of his first meeting with Prewitt and the cutting, as it was when made to Winningham. It derived no added force to enable it to escape being self-serving by reason of the fact that appellant made said statement in connection with the sharpening of the knife in question.

The only other matter complained of in the motion is that we should have held erroneous the action of the district attorney in repeating a question to which the trial court finally sustained objections. We have gone carefully again over the rather lengthy bill setting out this matter. It therefrom appears that the district attorney asked Mr. Prewitt a question, to which appellant objected; the trial court started to remark something to the district attorney, who asked the court to wait a minute, and then proceeded to frame his question differently; but before the question was fully asked, he was interrupted by an objection from the attorneys for appellant. The district attorney again changed the form of- his question, and, while asking the same, was interrupted by another objection. None of the questions having been answered, the trial court directed the parties to proceed with the case, and the district attorney started to ask apparently the same question, and was again interrupted by an objection. At this juncture the trial court asked the stenographer to read the question, which was done, and the court stated to the district attorney that he could only ask questions which elicited facts. Thereupon the district attorney said that the court could pass on it, and asked the question which he had apparently been trying to frame. The court sustained the objection, and this ended the matter. The answer sought by the question was an opinion of the witness, and was of no fact the repeated statement of which in the question would be harmful to appellant. Perhaps it would have been better if the trial court had peremptorily ended the controversy sooner, but we are unable to conclude that the bill pre'sents any reversible error.

The motion for rehearing is overruled. 
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