
    BYLER v. STATE.
    (No. 10355.)
    Court of Criminal Appeals of Texas.
    Dec. 22, 1926.
    Rehearing Denied May 4, 1927.
    1. Criminal law <@=¿>1091 (I I) — Bill of exception in question and answer form cannot be considered, unless showing that trial judge considered it necessary (Code Cr. Proc. 1925, art. 760, suhd. 3).
    Court of Criminal Appeals is unauthorized to consider bill of exceptions in question and answer form, and not prepared in keeping with statute, unless bill shows that, in opinion of trial judge, it was necessary that it be prepared in such form in accordance with Code Cr. Proc. 1925, art. 760, subd. 3.
    2. Criminal law <S=>665(4), 1153(5) — Enforcing rule as to witnesses is discretionary, and will not be disturbed, in absence of showing of abuse.
    Enforcing rule as to witnesses, especially character witnesses, is left to discretion of trial court, and, in absence of showing of abuse of his discretion, Criminal Court of Appeals will not interfere therein.
    3. Criminal law <@=>1001 — State, after application for suspended sentence, may inquire as to defendant’s reputation up to date of trial.
    Where defendant, convicted of manslaughter, sought a suspended sentence, it was proper for state to make inquiry as to his reputation up to date of trial.
    4. Homicide <@=>300(7) — Refusal of charge on defendant’s right to arm himself and demand explanation of improper conduct toward wife held proper under evidence.
    In prosecution for murder, refusal of special charge ■ requested by defendant to effect that he had right to arm himself, seek deceased, and demand explanation of improper conduct toward defendant’s wife, held, proper, where evidence failed to raise such issue.
    On Motion for Rehearing.
    5. Homicide <@=>175 — Testimony by deceased’s mother relative to nature of injury and death therefrom held admissible.
    In prosecution for manslaughter, evidence consisting of recital by deceased’s mother describing character of injury, and that deceased was taken to hospital, where he grew steadily Worse, and finally died, held admissible, since it Was necessary that state prove death resulted from injury inflicted by defendant.
    Commissioners’ Decision.
    Appeal from District Court, Liberty County ; Thos. B. Coe, Judge.
    Jack Byler was convicted of manslaughter, and he appeals.
    Affirmed.
    C. H. Cain, of Liberty, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of manslaughter in the district court of Liberty county, and his punishment assessed at five years in' the penitentiary.

The record discloses that the homicide took place at a dance on the night of December 25, 1923. It was the contention of the state, and evidence was introduced to that effect, that the appellant, while under the influence of whisky, and without cause or provocation, shot the deceased with a pistol, from the effects of which he died about 9 days later. The appellant defended upon the ground, and so testified and introduced other evidence in support thereof, that the deceased, on the 'night in question, and while under the influence of whisky, cursed the appellant to appellant’s wife, and called her a vile name, all of which was communicated by her to the appellant prior to the homicide, and that he shot the deceased in self-defense, while the latter was advancing toward him and attempting to cut him.

The state’s attorneys for this court move to strike out the statement of facts, for the reason that same was filed more than 90 days after notice of appeal was given. The bills of exception are subject to the same objection. The appellant files in this court a proper showing which exonerates him from negligence in this particular, and under which this court is authorized to consider said statement of facts and bills of exception.

The record contains 16 bills of exception. Bills 1, 2, 3, 4, 5, 6, and 8 are in question and answer form, and are not prepared in keeping with the statute and decisions of this court, governing such matters, and for that reason we are unauthorized to consider same. Broussard v. State, 99 Tex. Cr. R. 589, 271 S. W. 385; Robbins v. State, 100 Tex. Cr. R. 592, 272 S. W. 175; Panyon v. State, 101 Tex. Cr. R. 527, 275 S. W. 1076.

Bill of exception 1A embraces all of the grounds urged in the motion for a new trial, combining various and sundry objections in the same bill, and, as presented, shows no error. Nugent v. State, 101 Tex. Cr. R. 86, 273 S. W. 598.

In bill No. 7 complaint is made to the action of the court in permitting the state to have the witness, Musgrove, testify that the appellant’s reputation was bad, the objections being that said witness was not placed under the rule, and heard some of the testimony, and that the state’s inquiry as to the appellant’s reputation was not confined to the time of, and prior to, the homicide. This hill, as presented, shows no error. The failure to enforce the r.ule as to witnesses, and especially character witnesses, is left to the discretion of the trial court, and, in the absence of a showing of abuse of his discretion, this court will not interfere with the action of the trial court thereon. Allen v. State, 98 Tex. Cr. R. 219, 265 S. W. 580. The appellant having sought a suspended sentence, it was proper for the state to make inquiry as to the appellant’s reputation up to the date of the trial, and it was not error to refuse to limit this issue to the time of, and prior to, the homicide. Bayer v. State, 96 Tex. Cr. R. 310, 257 S. W. 242; Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297.

Bill No. 9 complains of the action of the court in refusing to give appellant’s special charge No. 2 relative to manslaughter, based upon the statement of the deceased to the appellant’s wife. This issue was fully covered in appellant’s special charge No. 4, which was given by the court.

Bill No. 10 complains of the action of the court in refusing to give appellant’s special charge No. 5. The record discloses that the court gave this charge to the jury.

Bill No. 11 complains of the action of the court in refusing to give appellant’s special charge No. 3, to the effect that the appellant had the right to arm himself, seek the deceased, and demand an explanation of his conduct towards appellant’s wife. ' There was no error in the refusal of this charge, for the reason that the evidence does not raise such an issue. The appellant testified that, when he got his pistol preparatory to leaving the scene of the dance, he was on his way home, and did not know that the deceased was in the room through which he was passing until his wife called his attention to that fact; that he was intending to go home at said time, and intended to see the deceased later.

Bill 12 complains of the refusal of the court to charge the jury that, if they, had a reasonable doubt as to whether the appellant was guilty of murder or manslaughter, to resolve the doubt in his favor. The verdict was for manslaughter, and this question passes out of the case.

Bills of exception Nos. 13, 14, 15, and 16 complain of the argument of the state’s attorneys to the jury, and, as presented, show no error.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant especially complains because we declined to consider bill of exception No. S on account of it being in question and answer form, insisting that it is apparent from the bill itself that it was necessary so to present it in order to make clear to this court the matter complained of. The necessity to put the bill in questions and answers does not appear obvious. By a little care the bill could have been presented in narrative form. However that may be, it is our understanding that the Legislature, in subdivision 3, art. 760, C. C. P., has vested in the trial judge the discretion to direct when a bill should contain the questions and answers, and we have said several times that ordinarily, unless the bill in some way shows that in his opinion it was necessary that it be prepared in that form, the bill would not be considered. McCroy v. State, 96 Tex. Cr. R. 354, 257 S. W. 566; Broussard v. State, 99 Tex. Cr. R. 589, 271 S. W. 385; Taylor v. State, 98 Tex. Cr. R. 185, 265 S. W. 152.

If bill of exception No. 4 is considered (as appellant insists it should be), we fail to find anything therein calling for a reversal. It was necessary for the state to prove that death resulted from the , injury inflicted by appellant, and the evidence objected to was a recital by the mother of deceased, describing the character of the injury inflicted, that deceased was taken to the hospital, where he grew steadily worse, and died on the ninth day after being wounded by appellant.

, Appellant requested three special charges (Nos. 2, 4, and 5) supplementing the main charge upon the issue of manslaughter. The court gave special charge No. 4. Appellant now complains because he did not give special charge No. 2 instead, and criticizes the charge .given, although prepared by himself. It would have been improper for the court to have given more than one of the special charges, and it occurs to us that he selected and gave the one which presented the case in the most favorable light for appellant.

The motion for rehearing is overruled. 
      @=»For other eases see same topic and KBY-NTJMBER in all Key-Numbered Digests and Indexes
     