
    BRITTON v. STATE.
    (No. 10898.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    1. Criminal law, <&wkey;>l 120(3) — Bill of exceptions, not certifying what answer to excluded question would have been, will not be considered.
    Court will not consider a bill of exceptions which complains because state’s objection to defendant’s question was sustained, where bill of exceptions does not show what the answer would have been.
    2. Criminal law &wkey;>449(2) — In murder case, question whether defendant refused to testify for victim’s father, and thereby made victim and father “mad,” held properly excluded, as calling for opinion and conclusion.
    In prosecution for murder, defendant’s question, put state’s witness, who was victim’s brother, on cross-examination, whether he knew that defendant, in presence of victim and his father, refused to testify for victim’s father, and that this made them “mad” at defendant, 
      held properly excluded, as calling for an opinion and a conclusion.
    3. Criminal law &wkey;>449(2) — Testimony that reason witness advised defendant, before homicide, not to go along road, was that he knew reputation of victim’s family, and that they would likely kill him, held properly excluded, as dealing with conclusions.
    In prosecution for murder, testimony that the reason witness advised defendant, before the homicide, to go across a field, instead of by a road, was that he knew the reputation and character of victim’s family, and that they would likely kill defendant, held properly excluded, as dealing with conclusions.
    4. Homicide <&wkey;169(I) — Testimony that deceased victim’s father made improper advances towards neighbor’s wife held' properly excluded.
    In prosecution for murder, testimony that victim’s father, who was killed by defendant on an occasion before the killing in question, made improper advances towards neighbor’s wife,. held properly excluded.
    5. Criminal law <&wkey;706 — District attorney’s statement that he objected to showing relationship to defendant, and that defendant was not keeper of that section of country, so far as he knew, held not error.
    . District attorney’s statement, in- objecting to question as to whether witness was related to defendant, that he objected to showing any family relationship of witness to defendant, and that defendant was not the keeper of that section of the country, so far as he knew, held not error.
    6. Criminal law &wkey;>l 120(3) — Bill of exceptions complaining of question on cross-examination, but not showing answer, if any, shows no error.
    Where bill of exceptions, which complains because state asked defendant’s witness a certain question on cross-examination, fails to show the answer, it shows no error.
    7. Criminal law <&wkey;>829(5) — Refusing special charge in murder case on threats was not error, where general charge properly presented subject.
    Where general charge in murder case properly presented law of threats, as raised by the facts, refusing special charge thereon held not error.
    Commissioners’ Decision.
    Appeal .from District Court, Rusk County; R. T. Brown, Judge.
    Will Britton was convicted of murder, and he appeals.
    Affirmed.
    Eutch & Cooper, of Henderson, 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 murder, and his punishment assessed at six years in the penitentiary.

The record discloses that the appellant and a neighbor by the name of Wren Hough were not on very friendly terms, and that on August 2T, 1926, the appellant, while returning from Timpson, and at a point in the public road near his home and that of the said Hough, shot and killed the latter with a shotgun; the shooting being witnessed by Hough’s two sons, Kelley and Grady. Appellant snapped his gun at Kelley and Grady Hough after the shooting, and upon the gun’s failure to fire he ran to the home of one Todd, near by, secured his gun, and started across the field in the direction of his home, carrying both guns. It appears that at this time Wren Hough was not dead, and that his son Kelley ran to their home for the purpose of telephoning for a doctor and procuring a truck with which to remove bis father from the scene of the trouble to his house. In order for Kelley Hough to 'return with the truck to the scene of the shooting, it was necessary for him to travel over a road which ran in front of appellant’s house, and, as he was passing appellant’s residence, appellant killed him by shooting him two or three times with a gun. It was for this homicide that appellant was tried and convicted in the instant case.

It was the contention of the state, and evidence was introduced to that effect, that Kelley Hough and Grady Hough were un' armed when appellant shot their father, and that Kelley Hough, at the time of his death at the appellant’s hands, was merely driving down the road in a truck at a rapid rate in order to assist in getting his father to their home, and was doing nothing more. The state also introduced evidence to .the effect that, when appellant .fired the first shot, deceased jumped out of the truck and attempted to run away, but that appellant continued to shoot until he fell.

The appellant defended upon the ground of threats and self-defense. He testified, and introduced other testimony to the same effect, that Wren Hough had obstructed the road, at 'the place where the first homicide occurred, and that, when he stopped his automobile for the purpose of removing the obstruction, the said .Wren Hough stepped upon the running board of his car, and was assaulting him with a hammer, when the shooting occurred. He further testified that Kelley and Grady Hough began shooting at him immediately, and that, upon learning .that his gun would not fire, he ran to Todd’s house, and later went home. It was also contended by appellant that, when Kelley Hough was passing his house after the first shooting, he was driving a truck with one hand and had a gun in the other, and was attempting to shoot him (appellant) at the time of the homicide.

The record contains six bills of exceptions. In bill No. 1 appellant complains of tbe action of tbe court in refusing to require tbe state’s witness Grady Hougb, on cross-examination, to answer tbe following question:

“Don’t you Imow as a matter of fact that Will Britton, the defendant, in the presence oí your father and brother, Kelley Hough, refused to go to Tyler and testify in your father’s behalf, and that this made them mad at the defendant?”

Tbe court sustained tbe state’s objection to this question, and tbe appellant excepted to tbe court’s action, on tbe ground that, if tbe witness bad been permitted to answer said question, it would have been shown that there were “hard feelings” between deceased and bis father and tbe defendant. This bill, however, fails to certify what tbe answer of tbe witness to said question would have been, and without such a certificate this court is unauthorized to consider tbe bill, or conjecture what said answer would have been. Townsley v. State, 104 Tex. Cr. R. 508, 281 S. W. 1054; Murff v. State, 103 Tex. Cr. R. 617, 281 S. W. 1076. It further occurs to us that the question would have called for an opinion and conclusion on the part of tbe witness. .

In bill of exceptions No. 2 appellant complains of tbe refusal of tbe court to permit him to show by the witness Todd why .be advised appellant to go across tbe field, instead of going back around tbe road, after appellant left the witness’ bouse with tbe borrowed gun. Tbe appellant contends that, if the witness bad been permitted to testify, be would have stated that bis reason for giving said advice was that he knew of the reputation and character of the Houghs, and knew that, if appellant went down the road, they would likely kill him. Tbe court did not err in refusing to permit tbe witness to testify to these conclusions. Tbe court qualifies this bill by stating that be permitted tbe appellant to prove everything that was said and done by him at the residence of the witness Todd, and that there was no contention made to tbe effect that the court refused to permit appellant to prove tbe general reputation of said deceased parties.

In bill No. 3 appellant complains of the refusal of tbe court to permit him to prove by tbe witness Mrs. Sam Todd that Wren Hough, prior to the date of the alleged homi- ■ eide, made improper advances to her at her home. The court qualifies this bill by stating that tbe appellant was upon trial for the killing of Kelley Hough, and that the evidence sought to be introduced in no manner involved tbe said Kelley Hougb. This bill shows no error.

In bill No. 4 complaint is made to a certain statement of tbe district attorney. It seems that Mrs. Sam Todd was recalled to tbe stand, and asked if she was related to the appellant, which she answered in tbe negative. Tbe district attorney, in objecting to this testimony, stated that be objected to showing any family relationship to Will Britton, and that Will Britton was not the keeper of that section of tbe country, so far as he knew. This bill, as presented, shows no errdr. We are unable to see bow the remarks of tbe district attorney could have been harmful to the appellant.

In bill No. 5 complaint is made to the action of the state’s attorney in asking appellant’s wife, on cross-examination, if it were not a fact that deceased was “right there next to ‘your bouse when tbe shot was fired, and that be [deceased] just jumped out of the truck and ran down tbe road, and your husband was squatted down behind some vines near the side of tbe road.” Tbe objection urged to this question was that the witness did not see the shooting, and was not examined by tbe defendant as to how it occurred, and the state was not authorized, upon cross-examination, to inquire into the matter. This bill fails to show what answer tbe .witness made, if any, and, as presented, shows no error. Hcnnington v. State, 101 Tex. Cr. R. 12, 274 S. W. 599.

Bill No. 6 appears to be a complaint to tbe refusal of the court to give a special charge on the law of threats requested by appellant. Tbe general charge properly presented tbe law of threats, as raised by the facts in this case, and tbe trial court did not err in refusing to give the special charge requested.

Finding no error in tbe record, tbe judgment of tbe trial court is affirmed.

PEE CUEIAM. The foregoing opinion of the Commission of Appeals has been exam-, ined by the judges of tbe Court of Criminal Appeals and approved by tbe court.

MOEEOW, P. J., not sitting. 
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