Byler v. State , 106 Tex. Crim. 570 ( 1926 )

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 whiskey and without cause or provocation, shot the deceased with a pistol, from the effects of which he died about nine 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 whiskey, 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 ninety 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 sixteen 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,271 S.W. 385; Robbins v. State, 272 S.W. 175; Panyon v. State,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, 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 bill, as presented, shows no error. The failure to enforce the rule 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.Crim. Rep., 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.Crim. Rep., 257 S.W. 242; Rosamond v. State, 97 Tex.Crim. Rep., 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 toward 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 No. 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.

Affirmed.

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.