
    RODRIQUEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Witnesses (§ 240) — Examination—Leading Questions.
    In a prosecution for homicide, questions as to what deceased and accused were talking about at the time of the killing, and as to whether deceased attempted to strike his wife and was prevented by accused, are not leading.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240. ]
    2. Criminal Law (§ 1091) — Bill of Exceptions — Contents—Sufficiency.
    A bill of exceptions to the admission of testimony and to leading questions must contain sufficient matter to show that the testimony was improper and that the alleged leading questions did not fall within any of the exceptions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Daw (§ 1171) — Appeal—Haemless Error.
    Where the evidence showed accused to be guilty of murder but he was only convicted, of manslaughter, the lowest penalty being imposed, statements by the prosecutor that he had done his duty, but that, if the juries did not do theirs, officers of the law were powerless to prevent crime, will be considered harmless where the court instructed the jury to disregard them and the prosecutor apologized saying that he desired to withdraw his remark.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Homicide (§ 300) — Trial — Instructions.
    In a prosecution for homicide, where the only evidence of self-defense was that deceased chased accused with a knife and that when accused fell down deceased jumped upon him, whereupon in the struggle accused killed deceased, a charge on apparent danger is properly refused; the evidence showing only actual danger.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Caldwell County; Erank S. Roberts, Judge.
    Antonio Rodriquez was convicted of manslaughter, and he appeals.
    Affirmed.
    O. Ellis, Jr., and T. B. Monroe, both of Lockhart, for appellant. C. E. Lane, 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
    
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Upon an indictment for the murder of his brother-in-law, Se-novia Ramarez, upon a trial appellant was convicted of manslaughter, and the lowest penalty (two years in the penitentiary) assessed.

Appellant has several bills of exception to the introduction of the testimony of the state’s witness, Jesus Torres. Without any statement of the case in the .bills, he objected to these questions by the district attorney and answers: “Now, I want to know what Senovia’s wife said, and to whom she was talking when she said that?” 1-Ie answered: “She was talking to Senovia, and told him it was none of his business.” The attorney then asked: “What was Se-novia and Antonio talking about when Se-novia’s wife said to Senovia that it was none of his business?” He answered: “They were talking about a woman. She told the man that it was none of his business and not to butt in.” To further inquiries this witness stated they were talking about a woman, but he did not know whether it was Senovia’s woman or Antonio’s woman. Appellant’s objection to this was that the evidence is immaterial and irrelevant and not pertinent to any issue in the case and was hearsay and did not occur at such a time and place as to make it a part of the res gestae.

By another bill, without any explanation of the status of the case, it is shown that, after proving by said witness that Senovia hit his wife with his fist in Antonio’s presence, the district attorney asked the witness: “Did Senovia strike his wife, did he endeavor to strike her, and was prevented by Antonio?” He answered: “Senovia didn’t hit the woman; Antonio spoke up and said not to hit her.” His Objections to this was that the question was leading and suggested the answer desired, which answer was calculated to injure him. This is in substance the whole of the bill.

By 'another bill it is shown that after this same witness had testified that appellant and the deceased had been fighting with their mouths in the yard for about 15 minutes, and that deceased struck the appellant with a stick of wood and ran, with appellant running after him, the district attorney asked him: “What did Antonio do before he started to run, or after he started to run?” He answered: “When he hit Antonio, Senovia ran and Antonio pulled out a dirk knife and ran after him.” This was objected to because leading and suggested the answer. This is in substance the whole of this bill.

Neither of these bills show any error. We think none of the questions were leading, but, if so, the bill shows no error on that account. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. If we could look to the record and statement of facts to supply the clear deficiency of the bills, we would find that all this evidence objected to was material and relevant and was not hearsay and was a part of the res gestse of the fight because thereof and the killing.

By another bill appellant complains of this language used by the district attorney in making his closing argument to the jury: “I have done my duty in this case, but if the juries of Caldwell county do not do their duty the officers of the law are powerless to enforce the law and prevent crime. Do you know, gentlemen, that there are more homicides committed in Caldwell county than in any other county in this judicial district?” The circumstances under which this language was used by the district attorney and the surroundings of the case are in no way disclosed by this bill. It does disclose that when he objected to these remarks the court sustained his objections and that the court instructed the district attorney not to pursue such line of argument further. Whereupon the district attorney desisted. The court, in allowing the bill, qualified it by stating: “At the time when the district attorney made said remarks, the court instructed the jury that they should not consider the same, whereupon the district attorney apologized to court and jury for getting out of the record and stated that he desired to withdraw his remarks.” Even if these brief remarks by the district attorney were improper, they were not only withdrawn by him but he apologized to the court and jury for using them, and the court instructed the jury not to consider them. The appellant got the lowest penalty for manslaughter. He did not request, in writing, any charge to the jury. No injury whatever is shown to him by this. Clayton v. State, 149 S. W. 119, and cases there cited.

Appellant has some complaints to the charge of the court on manslaughter in effect that, in defining manslaughter and submitting it to the jury for a finding, he excepted his defense of self-defense to actual danger and not apparent danger. And to the court’s charge in submitting his self-defense that it was limited to actual and not apparent danger. In allowing appellant’s bill of exception on this subject, the court qualified and explained them, in substance, by stating the theory of the defense was self-defense, based upon actual danger. The defendant testified deceased chased him some distance with a knife and when he (defendant) fell down deceased jumped on top of him; the defendant eaught'the raised hand of deceased with one hand and that he then stabbed deceased in the back with his knife in the other hand, while he was lying on the ground with deceased on top of him. The whole evidence does not in any way raise apparent danger, but immediate, actual, and pressing danger, and only that, from appellant’s own testimony, which was all the evidence that raised it. We have carefully considered all of appellant’s complaints to the charge of the court, and none of them are well taken.

We have carefully read the record and evidence in this case. The evidence would have justified murder in either the first or the second degree. We cannot understand from this record how appellant escaped with a verdict for so light an offense and the lowest penalty.

There being no error, the judgment will be affirmed.  