Keith v. State , 93 Tex. Crim. 585 ( 1923 )

ON REHEARING

March 7, 1923.

LATTIMORE, Judge.

Appellant insists that we erred in declining to reverse his case because of the admission in testimony of a statement made by his wife at the scene of the homicide and shortly thereafter; the testimony coming from the lips of appellant’s daughter-in-law, the wife of deceased. We have again considered the matter. It appears without dispute that appellant shot and killed his son on the occasion in question. He testified that he shot in self-defense after having been shot by deceased. The wife of deceased testified that appellant came up to the place where the homicide occurred, angry and inquiring for his' wife with whom he said he had just had some kind of a fight. That when deceased remonstrated with appellant and told him that he ought not to have any trouble with his mother and tried to get appellant to surrender to him the gun and pistol which the latter was carrying, appellant declined, and when deceased further insisted, that appellant shot inflicting upon deceased the mortal wound. Under no phase of the State’s testimony could the homicide be reduced to a less offense than manslaughter. The statement of the wife testified to by the daughter-in-law, appears in our original opinion. There is absolutely nothing in it which sheds any light upon the question of self-defense, and nothing which could have led the jury to wrongfully convict appellant of any degree of unlawful homicide. We cannot attach the importance to it which appellant ascribes in his motion. It was already in evidence that appellant said he and his wife had just had a fight. The statement of the wife made in the presence of appellant and without denial on his part, was that he had just hit her and her side was hurting her very badly. If the jury had found appellant guilty of a graver offense than manslaughter, or if they had given to him more than the minimum penalty therefor, this court might be in some doubt of the fact that passion or prejudice of the jury was aroused, and in that event would have been more inclined to consider seriously the contention of appellant. We do not believe the evidence is shown to be inadmissible, nor do we conclude that it could have injuriously affected appellant’s defense.

The motion for rehearing is overruled.

Overruled.