
    BALLARD v. STATE.
    (No. 9490.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.
    Rehearing Denied March 10, 1926.)
    1. Homicide <&wkey;>l58(3) — Refusal to limit to question of motive testimony of wife of deceased as to conversation in which accused told deceased if he did certain thing he would wake up in hell held not error.
    In prosecution for manslaughter, where wife of deceased testified that, when her husband told accused that, if latter did not help him out of trouble he had got him into, he (deceased) would turn whole matter in, accused replied that, if he did, deceased would wake up in hell, refusal to limit testimony to question of motive held not error; it being admissible also as conditional threat.
    2. Criminal law <&wkey;l 173(2).
    Failure to instruct jury to disregard testimony that court had already excluded on motion'of accused is not prejudicial error.
    3. Criminal law <&wkey;ll70!/2(5) — Question on cross-examination as to relation between accused and deceased’s wife, to which objection was sustained, held not prejudicial error, in absence of any suggestion in question of improper relation between accused and deceased’s wife.
    In prosecution for manslaughter, question on cross-examination, as to statement deceased may have made to witness about accused and deceased’s wife, to which objection was sustained, held not prejudicial error, in absence of anything in question imputing improper relation between accused and deceased’s wife.
    
      On Motion for Rehearing.
    4. Criminal law <&wkey;608.
    Evidence held not to show abuse of discretion in denying continuance on ground that accused was sick and unable to confer with his counsel.
    5. Criminal law <&wkey;ll70!/2(2) — Question on cross-examination as to statement purported to have been made by witness held not basis for reversal, where witness disclaimed memory of making statement.
    Question on cross-examination by state’s attorney in homicide case as to whether witness had stated on morning after killing that he did not want to testify against accused, and gave his reasons therefor, held not basis for reversal, where witness answered that he did not remember making such statement.
    Commissioners’ Decision.
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    L. A. Ballard was convicted of manslaughter, and he appeals.
    Affirmed.
    Lon A. Brooks, of Anson, and J. E. Cunningham and Oliver Cunningham, both of Abilene, for appellant.
    Stinson, Ooombes & Brooks, of Abilene, and Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is three years in the penitentiary.

This is the second appeal of this case. Disposition of the first appeal is found in 262 S. W. 85, 97 Tex. Cr. R. 455, where a sufficient statement of the facts is made.

Appellant’s first complaint is at the action of the court in overruling his first supplemental motion for a continuance. This motion was based on the ground that the appellant was sick and unable to advise with his counsel in the defense of his case. This issue was contested before the trial court and proof introduced touching the physical condition of the appellant. After hearing the evidence on the issue, the trial court decided it against the appellant. The record discloses the testimony that was heard on this matter, and we are not in a position to say, after a careful review of the same, that the trial court abused his discretion in holding that the appellant’s condition was not such as to make it impracticable for him to advise with his counsel and to stand trial in the case. The only testimony offered was that of two physicians, and their testimony is so indefinite and uncertain as to preclude us from saying that the trial court’s action in the matter was error.

We think there is no just ground for complaint at the court’s action in refusing to limit the testimony of the wife of the deceased. This witness testified, in effect, that the deceased told the defendant in her presence that the defendant had gótten him into trouble, and that, if he (the defendant) did not help him out, he would turn the whole matter in, and that the defendant replied that, if he did, he (the deceased) would wake up in hell. It is appellant’s contention that this testimony ought to have been limited by an instruction advising the jury that they could consider it only for the purpose of showing motive. The'learned trial court correctly refused to do this. Such an instruction would have been directly on the weight of this testimony, for it was not only admissible for the purpose of showing motive, but it was also admissible as at least a conditional threat, and the jury had a right to consider it as such.

What has been said -with reference to the testimony of the wife of the deceased also applies to the testimony of E. R. Burns. His testimony was admissible, not only for the purpose of showing motive, but it was admissible as a conditional threat also.

The conversation between the witness Burns and Ed Peach is made the subject of complaint. Burns testified that the witness Peach came into his place of business the next morning after the shooting, and made the following statement:

“I know all about this affair, and I want to tell you I don’t want to testify in the examining trial, because Ballard (the defendant) owes me about $60, and if I do testify it will be against him, and they will likely break his neck.”

Appellant complains at the action of the court in refusing to limit this testimony to impeachment purposes alone. The record discloses that the testimony of Bums with reference to the statement made by Peach except that part where he expressed his opinion- that appellant -was guilty, was limited in the charge to impeachment purposes alone. The portion wherein he expressed his opinion as to appellant’s guilt was excluded on appellant’s motion. Appellant contends, however, that the court should have gone further and instructed the jury in his charge not to consider for any purpose that part of Burns’ testimony to the effect that Peach had expressed his opinion as to the appellant’s guilt. The record discloses that this testimony was excluded by the court, and, in fact, appellant’s objection to the charge shows this fact, and we think that this sufficiently protected appellant’s rights in the matter. We know of no rule that would make it reversible error in this case for the court to fail to instruct the jury to disregard testimony that the court had already excluded.

AYe think that no reversible error is shown in the cross-examination of the witness Ed Bigby. The conversation elicited by the state, as shown by the court’s qualification of the defendant’s bill of exceptions, was a part of that inquired into by the appellant himself while the witness was testifying in his behalf. The court sustained appellant’s objection as to any statement the deceased may have made to the witness about the appellant and the deceased’s wife, and the court in his qualification of the bill certifies that the question was framed in an entirely different manner to the question rer lating to the same matter on a former appeal, and that the question as framed' did not suggest an improper relation had existed between defendant and the wife of the deceased. Under these conditions reversible error is not shown.

We have carefully examined the other matters raised by appellant, and have reached the conclusion that no error is shown in any of them.

Blinding no error in the record, it is our opinion that the judgment of the trial court should be in all things aflarmed.

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.

'EATTIMORE, J.

In his motion for rehearing appellant presents two objections to our opinion. He first says we should have reversed the case because the court refused his first supplemental motion for continuance. As stated in our former opinion, this application was based on the ground of the then illness of appellant. Referring to the testimony of the two doctors who testified on the presentation of said motion for continuance, we observe that one of said doctors introduced by appellant said, among other things, that he was called to see appellant about 10 o’clock Saturday night, and found him complaining of a pain in his side, but that his temperature and respiration were both normal; that he had “friction rub” in the left side that witness took to be pletu-isy; that he gave him some morphine and a creosote mixture. We turn aside to say that on the Saturday night mentioned the jury in this ease had been obtained, and the case passed over for further consideration on Monday following. The witness just referred to was giving testimony on said Monday. He further testified:

“If this man was properly clothed and properly brought over here (evidently meaning to the courthouse), I don’t think it would hurt him. * * * I think he is able to converse with his lawyers and talk with them about matters without inconvenience or pain. I don’t believe I have heard him complain when he talks.”

The other doctor was introduced in opposition to the motion, and testified for the state 1 that he examined appellant about one, o’clock Monday afternoon, and did not find any disease present. He further said that, assuming that the defendant had pleurisy pain Saturday night, or friction rub, and that he has had no temperature or excitement of the pulse, and the weather was dear, and, in view of the fact that it wasi only 300 or 400 feet from the courthouse to the place where he resided, he saw no reason why appellant should not be able to undergo the strain of a trial at this time. He further testified it was his opinion that appellant could sit up in a chair. In the light of the testimony above set out, we see no error in the action of the learned trial judge in overruling the supplemental motion for continuance.

Appellant also complains of our disposition of the matters contained in his bill of exceptions No. 5. Same shows that the state asked defense witness Peach if he had not said certain things to Ernest Burns, and that the question was objected to by appellant’s counsel, and it is stated the court overruled said objection. The bill, however, further shows that the state’s attorney changed the question, and asked the witness if he did not tell Mr. Burns on the occasion referred to, the next morning after the killing, that he did not want to testify against the defendant before an examining court, and if he did not gjve his reasons for it. "Witness answered, “No, sir, I don’t remember making any such statement as that.” The bill recites that appellant then and there objected and excepted, etc. It thus appears that there was no answer made to that part of the question which is argued in the motion for rehearing as objectionable.

Being of opinion that the case was properly decided, and that the motion for rehearing is without merit, same will be overruled. 
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