Johnson v. State , 74 Tex. Crim. 179 ( 1914 )

Appellant was prosecuted, charged with the murder of A.P. Duncan.

The record would disclose that appellant was at work for the Waco Machinery and Supply Company; that Mr. Duncan was president and general manager of this company, and that the killing grew out of their relations as employer and employe. Appellant testified that on the morning of the difficulty Mr. Duncan told him he wanted him, appellant, to make a trip, termed a "missionary trip," when appellant replied he would not have time to see "many of them between trains," when Mr. Duncan asked "what he meant." Appellant then says: "I told him that I would not have time to see many of them and get back between trains and not stay all night. He says, ``Damn it, stay all night.' I says, ``Mr. Duncan, that is not my contract with you; my contract with you is to stay at home every night unless there is a special deal on; if that is just a missionary trip I can't say, because that is not the contract.' He says, ``Is that what to expect of you?' I said, ``Yes, sir.' He says, ``I will let you know in fifteen minutes what we expect of you.' . . . In about ten minutes Mr. Duncan came out and asked, ``Where is Johnson?' He says, ``Over here.' He says, ``Tell him to come here.' I went ahead then and went around there and went back in his private office. I went in his private office and Mr. Duncan says, ``I don't think we can use you.' He says, ``We don't think you can make the house any money and stay at home every night, and travel these close towns.' I says, ``Mr. Duncan, that is the trade I had with you.' He said, ``It's a damn lie.' I said, ``Mr. Duncan, if I was as big a man as you are you couldn't talk to me that way, but I am a small man.' He says, ``Yes, you are damn small.' I says, ``I am a gentleman.' He says, ``No part of a gentleman.' I says, ``I am just going to carry out my contract with you or I am going to quit.' He says, ``You are damn lie; you ain't got no contract like you say you have.' I says, ``Yes, I have got a contract like that.' He says, ``If you deny my word again I will mash your nose all over your face.' I started to get up and he looked at me awful vile, and I thought he was going to do me some harm. He looked like he had daggers in his eyes. I thought he was going to do me some harm, severe harm. He says, ``If you move I will stamp you through the floor.' It went all over me and I could not move. So while I was trying to control myself, he says, ``Go on now and get out and make us money and make money yourself.' I says, ``Mr. Duncan, I will fill my contract.' He says, ``You have no such contract.' I says, ``I have.' He says, ``You are a damn liar.' I was still afraid to get up. He says, ``How many towns can you make and get back here in a day?' I says, ``I can make Hillsboro, West, Abbott, Elm Mott,' and went on and named a lot of them that I could make and be back at home at night. He says, ``Go get a piece of paper and make out a list of those towns that you can make and make money and be back home every night.' In a few moments Mr. Duncan came and asked me if I had the list made and upon my replying that I had and gave it to him, he said, ``We will let you know in about ten minutes.' Then Duncan walked in the office where his son Bruce and Mr. Martin were, and in a few minutes called me, and said: ``We have agreed that you can't make these towns and make us any money at the salary and expense you will be at.' I says, ``Mr. Duncan, I can't work for you people and stay away from home at night. I want to fill my contract.' He says, ``It's a damn lie; you have no such contract as you say you have.' I jumped up right straight. I said, ``I want some witnesses to this conversation.' I opened the door and moved three or four steps and Mr. Duncan said, ``Come back here; you don't need any witnesses.' And he said that in a very severe voice. I did not know hardly what to do, under the spell I was before, I came back. And when I got back I did not want to sit down because I thought if he went to do anything I would have room to go. So I did not sit down. I got back and put my foot in my chair just like this; put my foot on the chair this way and stood there and talked to him. He says, ``You can go ahead and take this list of territory and try to make us money, and see if you can do it; go ahead and take it.' I said, ``That is a different contract from what I had to fill.' He says, ``You are a damn lie; you had no such contract as you are talking about.' I says, ``Mr. Duncan, if I was as big a man as you are, I would resent that.' He says, ``You are a damn lie and there is no part of a man in you.' He said that awful hard. He said it threatening to me. I did not know what he was going to do. I says, ``Well, I want to fill my contract, or I am ready to quit.' He said, ``You have no such contract'; and he said, ``Sit down.' I said, ``No,' and he said, ``You damn lying pimp, sit down,' and said it in an awful way. He says, ``You damn lying son-of-a-bitch, sit down.' And he came at me that way. And I jerked my gun out of my pocket and shot him. As quick as I shot him I ran. I ran out the front way and went around Franklin Street and came up to the courthouse. I wanted to give up. So when I got here I gave my gun to some man — I do not know who he was — in the office. I told the man, ``I guess I have killed Mr. Duncan.' I shot Mr. Duncan because he was threatening, and I knew he meant some harm. He raised up and looked like he attempted to do me some bodily harm, and some deathly harm. I shot because I thought he was going to kill me. He was able to kill me with his naked fist. He could have killed me even with his hands. I think one blow would have fixed me. And he came at me in such a threatening manner — I can not hardly realize a man could get in such a passion as he looked when he came at me — I thought that very minute that he was coming at me to assault me then. I think so yet. I was excited at that time. I was so much excited I did not know what I did. I do not know how many times I shot, I was afraid of Mr. Duncan." He further testified that Mr. Duncan got up and glanced at the table on which there were some paper weights, ink bottles and cabinet cases, and he acted as if he was going to get some of those things and hit him with them. That he believed Mr. Duncan could kill him with them; he thought his life was in danger, and for this reason he shot. Duncan was shot in the back of the right hand, the left elbow was broken; he was shot in the left side, and in the back, the wound in the side being the fatal wound.

Bruce Duncan, Mr. Martin and others testified for the State, and would make a plain case of murder, when appellant was in no danger, actual or apparent. We have copied extensively from his testimony, as, in passing on the alleged errors in the charge, the matter must be viewed as it reasonably appeared to appellant at the time, and not as the matter might be viewed at a later time. Mr. Martin says that the last thing the deceased said to appellant was: "Now, Johnson, if you want to be a man and go out on the road and make this work and want to try it and make good on it go ahead and get out and do it." That he then raised up in his chair, with his hands folded on his breast, as was customary with him, and he, witness, thought the whole matter was dismissed. That he, Martin, turned to his desk, when Johnson fired and continued to shoot until Mr. Duncan fell. Bruce Duncan, in substance, testifies to the same thing. They admit that during the conversation Mr. Duncan did call Johnson a "dirty liar" and "a damned liar" about the contract, but he at no time made any demonstration as if he intended to harm Johnson, and made no threatening move or gesture of any character.

The court instructed the jury on the issue of self-defense:

"A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actualdanger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"If from the evidence you believe the defendant killed the said A.P. Duncan but further believe that at the time of so doing the deceased was about to make an attack upon him, or the defendant believed he was about to make an attack upon him, which, from the manner and character of it, and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, viewing the same from the standpoint of the defendant, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him, or if you have a reasonable doubt thereof, you will acquit him."

This aptly and directly applied the law to the defensive theory as made by defendant's testimony. He and his testimony alone injected the issue of self-defense; he testified that deceased was a large, heavy man, of an overbearing and ungovernable temper, and he had been informed of numerous difficulties in which deceased had been engaged, etc.

On the issue of murder in the second degree the court instructed the jury: "Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, Alex Johnson, with a deadly weapon, and that the same was a gun and an instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden passion, aroused without adequate cause as adequate cause will be hereinafter explained, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, and not under circumstances which would reduce the same to manslaughter, with intent to kill, did unlawfully and with implied malice aforethought, on or about the 18th day of March, 1912, shoot and thereby kill said A.P. Duncan, as charged in the indictment, you will find him guilty of murder in the second degree and assess his punishment at confinement in the penitentiary for any period that the jury may determine and state in their verdict, provided it be for not less than five years."

Appellant contends that this charge shifted the burden of proof and required him to prove "beyond a reasonable doubt that he acted in self-defense," etc. The language used is not subject to such construction, for it required the jury to find beyond a reasonable doubt that he did not act in self-defense, etc., before they would be authorized to convict.

Appellant complains most vigorously of the charge of manslaughter as given by the court. We think the court erred, if he erred at all, in submitting manslaughter to the jury under the testimony in this case. What testimony is there that raised the issue of manslaughter? It is true that appellant testified he was "excited" by the insulting words and gestures of the deceased, but what fact does he testify to that would be "adequate cause" under the statute to create this excitement? If the facts as stated by appellant are true he would have been justified in shooting. If these facts are not true, there is no fact or circumstance in the case that would in law be deemed "adequate cause" to excite him. Excitement alone will not reduce an offense to manslaughter. The testimony outside of appellant's would show that deceased called him a "dirty liar" or a "d__n dirty liar." Appellant says he called him a "lying s__n of a b__h," but our statute (art. 1131) says: "Insulting words or gestures are not adequate causes." In Eggleston v. State, 59 Tex. Crim. 542, this court said:

"Complaint is made in the motion for new trial and before this court that in submitting the issue of manslaughter to the jury the court did not submit all the law with regard to manslaughter, and in the charge that was given the court omitted some of the elements of manslaughter, and for that reason, together with the failure of the court to give the requested instructions asked by appellant with regards to manslaughter, error prejudicial to the appellant was committed by the trial court. A most careful review of the testimony in the case demonstrates to our minds that there is no manslaughter in this case. The theory of the State was that the defendant had become incensed at the appearance of the deceased upon the ground and his advice to the negroes to stop playing, and regarded same as interference with his purposes on that night, and fearing that the deceased might have the parties arrested, he concluded to provoke a difficulty with the deceased, for the purpose of killing him, and the evidence on the part of the State shows a killing without any excuse whatever. While on the part of the defendant, if his story is to be believed, it is a clear case of self-defense. It seems to be the impression with some members of the bar that in all cases where self-defense arises that necessarily manslaughter is in the case, but this is not a correct interpretation of the law. It would be wrong for the court to submit an issue not raised by the testimony, and as manslaughter could not, from any possible view of the facts, as detailed in the trial of this case, be suggested, we think manslaughter is not in the case. Therefore, if manslaughter is not in the case, any errors of the trial court in its charge on this subject could not avail the appellant, as said charge in submitting this issue was favorable to the appellant and would give the jury an opportunity to find the appellant guilty of a lower grade of homicide than murder in the said degree."

Thus it is seen if there should be error in the charge on manslaughter, that issue not being in the case, it would present no error. Are we correct in holding that manslaughter is not in the case? In the cases of Simmons v. State, 23 Texas Crim. App., 653, and Levy v. State, 28 Texas Crim. App., 203, it is held that to call a man a son-of-a-bitch or damned son-of-a-bitch, is not adequate cause to reduce an offense to manslaughter. In Boyett v. State, 2 Texas Crim. App., 93, it is held that insulting words alone are not adequate cause to reduce an offense to manslaughter. In Barbee v. State, 34 Tex.Crim. Rep., it was held that to call one a "son-of-a-bitch" and charging him with attempt to rape, would not be adequate cause. In Timon v. State, 34 Tex.Crim. Rep., that grossly insulting words might be introduced in evidence in mitigation of the punishment, but would not reduce the grade of the offense. In the case of McKinney v. State, 8 Texas Crim. App., 626, this court held: "To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind but the adequate cause which produced them must also exist. (Penal Code, art. 602.) Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery,are not adequate causes (Penal Code, art. 596), and manslaughter can not be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause." Neyland v. State, 13 Texas Crim. App., 536; Hill v. State, 11 Texas Crim. App., 456; Blackwell v. State, 29 Texas Crim. App., 194. In the case of Clore v. State, 26 Texas Crim. App., 624, the evidence shows the parties had one difficulty; which apparently was amicably settled; they started home in a wagon, when they commenced quarreling and cursing, and Clore said, "I will take it no longer" and struck. Held not to be adequate cause. In Treadway v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 655, and Kelly v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 304, we have recently had occasion to review the decisions of this State on this question, and it has always been held that if there be no legal "adequate cause" to produce the state of mind, such as anger, rage, sudden resentment or terror, even if such state of mind does exist, the offense is not manslaughter, but murder in the second degree. Take the evidence of appellant alone, and in passing on the question of whether or not there is manslaughter in the case, we must take the evidence offered in his behalf, there is nothing shown but that deceased cursed him and used insulting language towards him. No gestures or other acts of any kind, until appellant says that when he arose from the chair, he looked as if he was going to get something off the table, advancing towards him, threateningly, and from his acts and conduct, he thought his life was in danger. If this presents self-defense, certainly these same acts do not present adequate cause to reduce the offense to manslaughter. There may be and often are cases in which manslaughter and self-defense are both presented, but in a case like this, where nothing is shown but insulting language, until the overt act which if true would make a case of self-defense, the "adequate cause" to reduce the offense is lacking. And if error there be in the charge on manslaughter, this being an issue which he was not entitled to have submitted, but which the court did submit and thereby authorize less punishment than appellant received, it is a matter about which he will not be heard to complain. The other criticisms of the charge we do not deem it necessary to discuss for they present no error.

There are a number of bills of exception in the record relating to the admission and rejection of certain testimony. The first bill relates to admitting the clothing of deceased in evidence. The bill is approved by the court with the following qualifications:

"That there was no objection by the defendant to any of the testimony given by the witness, Dr. Connally, in regard to the examination of the clothing by said witness; that while the witness, J.W. Hale, was upon the stand, and while he was engaged in examining the clothing worn by the deceased at the time of the killing, the defendant made the following objections thereto:

"``We object to a rehash of this here. There is no dispute between these two doctors as to what the conditions were. The defendant has not cross-examined the first doctor about that, and there is no use of waving all this stuff around here.' We think it is prejudicial and unnecessary. The court stated he could not anticipate what question the county attorney wanted to ask. Mr. Neff, county attorney, stated, ``I am fixing to put the coat on.' The court stated, ``Go ahead.' Mr. Williams, counsel for defendant, stated, ``We except for the reasons stated.' No other objection was made to this proceeding.

"There was a controversy in the trial of this case as to the position in which the deceased was standing at the time the shooting took place. The defendant contending that he was rising from his chair and gotten nearly erect with right hand extended slightly to right toward desk and the State contending that deceased was standing erect with arms folded, and while there was no controversy between the physicians as to the place in the body which the wounds entered, nor the position of the wound on the body, as considered in connection with the entrance of the bullet holes in the clothing at the various places, it was the opinion of the court that the holes in the clothing were material in order to enable the jury to decide upon the issue made between the State and the defendant as to the attitude and position of the deceased at the time and during the shooting, and with these qualifications this will be allowed."

As approved the court did not err in the premises.

The next bill relates to a question propounded by defendant to witness, A.M. Martin. This bill shows the following proceedings: "I will ask you the question, was not Mr. Duncan at the time he arose from his chair commanding or demanding Johnson to sit down? to which the county attorney objected, and the court sustained the objection, to which action of the court Mr. Williams, counsel for the defendant, replied as follows: ``We except to the ruling of the court.' The court replying: ``There is no objection to asking what was said,' to which Mr. Williams, counsel for defendant, replied, ``I can not form my questions that way and get at what I am driving at, your honor. As I understand it your honor sustains the objection to that question.' The court says, ``There is no objection to asking the witness any question you want to lay a predicate for, by what was said by either party at the time.'" This bill presents no error.

In the next bill it is shown that Miss Fay Bolger testified she could not remember the language used by the deceased on the occasion he received the mortal wound, and also testified that she could not give the substance of such language, when defendant asked her if the "language used was vile and profane." The bill shows she would have answered, "That it was profane." The court held that what one person might term "profane language," might not ruffle another; that some people are more sensitive than others; that this was a question for the jury to determine. As all the witnesses present, both for the State and defendant, state that deceased did call appellant "a dirty liar," and "a damned liar," which language to a young lady's ears would be profane, the bill presents no error.

Appellant testified that prior to the killing he heard that some years ago "that Mr. A.P. Duncan and Silas Duncan killed a man in Grimes County. I could not remember who told me that. I heard it down in that country. I heard that they were indicted for that offense. I heard that Mr. Duncan and his brother were indicted in Grimes County for murder. According to my information Mr. Duncan had lived somewhere in Grimes County. He had lived in Calvert. He had been in business there. He had also been in business at Bryan. That information that I received was talked two or three times with me. I just got that information from talking with the general public there. Such people as oil-mill men are generally thrown with.

"I heard that in Calvert Mr. Duncan had knocked a man down with an axe handle. I heard that Mr. Duncan had some trouble at Temple with Mr. Hollingsworth in the hardware business. I heard that that trouble got so serious that one of them had to quit business. And that Mr. Duncan sold out and quit business and went back to Calvert. I understood that there were pistols in connection with the business at Temple. I did hear of that matter.

"I think the next trouble I heard that he had was in the Exchange Bank here. I heard that he and Mr. Eddins carried guns for each other for a while and that they liked to have had a fight and they had to separate them at a directors meeting there one time. That was at the Exchange National Bank here in Waco.

"The next incident I heard of was a matter that happened in Dallas. It was a general rumor up there and on the road. That was before the killing. It was some two or three years ago. I went to Dallas on some business and while I was up there I was talking with some one about the Duncan-Hobson Electrical Company and the trouble Hobson had with Duncan in business there. They said they had to get rid of Duncan.

"The next incident, some time I believe, in December, the latter part of December, just before the first of January, Henry Bell told me that he expected that I would have to work for Duncan next year. Judge Kelly here was my lawyer on some business matters such as abstracts, and I was up in his office one day and I said: ``I expect I will go to work for Mr. Duncan before long.' I had put all the money I had saved in investments such as lots here in town. When I was up there talking to Judge Kelly I told him I understood nearly everybody else had had trouble with Duncan but that I had never had any trouble with anybody. Judge Kelly remarked that Mr. Duncan made a bad break in his office one day. I believe Mr. Kelly was representing Mr. Duncan in some business, and Judge Jenkins was representing Mr. Cramer, about a lease of a hotel of some kind. Mr. Kelly said Mr. Dunan got in the worst rage he ever saw a man there in his office. And he said if Judge Jenkins had not gotten between them there would have been a fight right there and maybe a killing. He said he never saw such a wild man in his life as Mr. Duncan was. I said I did not know why I could not get along with him, that I had been working for fifteen years, and that I had gotten along with everybody that I had ever worked for.

"About the time of the killing or before it, Mr. Duncan had some trouble with some carpenters there about some frame work out in front of the building. It seems that they had been a long time getting this work done and there was a lot of frame work out in front and it was a little hard to get out at the front, and Mr. Duncan went out and jumped on the carpenters and told them if they did not tear that down he would get some men and tear it down himself; that he was not going to have it any longer. That he was not going to have it up there any longer at all. I think that morning before this trouble took place they were talking something about lowering the floor there in front.

"Taking the information that I had and Mr. Duncan's conduct toward me that morning, I regarded Mr. Duncan as a dangerous man when he got mad. I regarded him as mad that morning."

He then offered to prove by Mr. Hollingsworth the details of the difficulty between him and Mr. Duncan; by Mr. Baker the details of the difficulty about the repair of the front of the building; by Mr. Twaddell the details of a difficulty with one Costello, etc. It was permissible to show, and the defendant was permitted to do so, that he heard of these various altercations, and if he desired to do so that they did occur, but it was not permissible to go into the details of those transactions. To try the merits of these extrinsic matters would detract the minds of the jury from the merits of the case then being tried, and be conducting a half dozen trials at one time; the fact that appellant had been informed that such matters occurred was admissible; that they did occur could be proven, but it was not permissible to go into details of these transactions and the court did not err in so holding.

The appellant not being satisfied with testifying that he had been informed that deceased had been indicted for murder in Grimes County some twenty-five years prior thereto, he called the district clerk of that county as a witness and introduced the records, and showed the deceased had in fact been indicted for murder. When these records were introduced the State in rebuttal offered S.D.A. Duncan as a witness who testified that his brother, deceased, when tried was acquitted, and testified that he was present when the killing took place, and that his brother took no part in that difficulty. When this testimony was offered appellant stated:

"``We object, your honor, to any testimony from this witness or from any other source as to what he and his brother did, or whether they had a difficulty or whether they did not.' We introduced in evidence a record showing that he and his brother had been indicted upon a charge of murder.

"That defendant had heard of that; as affecting the impression that defendant had a right to have of the deceased, Mr. Duncan. Now as to what grew out of that as to whether he was finally acquitted or as to how far he was actually involved I do not know and defendant did not know it. Therefore, could not have affected him nor the purpose for which this testimony is offered. The impression was made by the fact that he had been indicted for murder and the defendant affirmatively testified that he had heard that fact that Mr. Duncan, deceased, had been indicted and that he did not hear what had become of the case, and what was the final result of the trial in the case. For these reasons we object to the introduction of any testimony along that line."

These were all the objections offered to the testimony of S.D.A. Duncan and W.W. Meacham. Had appellant relied on what he had heard as affecting the impression made on his mind, this testimony would not have perhaps been admissible, but as he went further and introduced the record to show that Mr. Duncan, deceased, was in fact indicted for murder as affecting the reputation of the man, and to show that he was a violent and dangerous man, and would commit murder, then the testimony that Mr. Duncan did not in fact participate in the killing and was acquitted became admissible. The details of this matter further than that should not have been gone into, and had appellant objected thereto, doubtless the court would have sustained the objection as he did in the other instances. At least as no such objections were offered in the court below at the time the testimony was adduced, we can not review the matter in this court.

In rebuttal the State also introduced evidence that the general reputation of A.P. Duncan was that of a peaceable, law-abiding citizen. This was objected to by the defendant, he claiming that he had not attacked the general reputation of the deceased in these respects. If a record ever disclosed that a decedent was attacked as being of violent, high-tempered, dangerous and overbearing man, this record discloses such attack, and appellant testifies to hearing of all these matters prior to the killing, and that this reputation of deceased, was in his mind and had its bearing on his conduct at the time of the shooting. The court committed no error in admitting this testimony. The bill shows:

"It is further shown that the defendant testified that he had been informed of incidents showing on the part of Mr. Duncan, the deceased, an uncontrollable temper and violence toward other persons, and that he had been informed of these incidents prior to the homicide, and the incidents testified to by the witness, were as follows, towit:

"``That one time on a trip to Calvert, Bremond and Hearne, he had been informed that the deceased, A.P. Duncan, and his brother, Silas D.A. Duncan, had killed a man in Grimes County and had been indicted therefor.

"``That he had also heard that in Calvert deceased, A.P. Duncan, had knocked a man down with an axe handle.

"``That he had heard deceased had some trouble at Temple with Mr. Hollingsworth in the hardware business, and had heard that the trouble got so serious that one of them had to quit business, and that the deceased sold out and quit the business, and went back to Calvert, and he further understood there was pistols in connection with the business at Temple.'

"Witness further heard that there was trouble in the Exchange Bank at Waco, and the deceased and one Mr. Eddins carried guns for each other for a while, and they liked to have had a fight and had to be separated at a directors meeting at the Exchange National Bank in Waco.

"Defendant further testified that while in Dallas on business he had heard that deceased had trouble with one Hobson with whom he was in business there, and that the said business was the Duncan-Hobson Electrical Company, and that they had to get rid of Duncan.

"Defendant further testified that Judge Kelly in Waco, in a conversation about him having to work under deceased, A.P. Duncan, remarked that deceased made a bad break in his (Kelly's) office one day. That Mr. Kelly was representing the deceased in some business and that Judge Jenkins was representing one Mr. Cramer about a lease of a hotel. That Mr. Kelly said deceased got into the worst rage he ever saw a man, there in his office, and if Judge Jenkins had not gotten between them there would have been a fight right there, and maybe a killing, and Judge Kelly said he never saw such a wild man in all of his life as deceased was. That defendant said, in reply thereto, that he did not know how he would get along with deceased, but that he had been working for fifteen years and had gotten along with everybody he had worked for.

"Defendant further testified that about the time of the killing deceased had some trouble with carpenters about some frame work in front of the building and that the deceased went out and jumped on the carpenters and told them if they did not tear that down he would get some men and tear it down himself, he was not going to have it there any longer." And then introduced other witnesses to prove that many of these things did in fact occur as stated by him.

The other matters complained of in the record we do not deem it necessary to discuss further than the two bills relating to the remarks of the prosecuting officer, Mr. Neff. In one bill, some nine pages of typewritten matter, nearly all, or a great portion of the speech of Mr. Neff, apparently is copied. In this bill No. 12 no specific matter is complained of, and the complaints are too general to be reviewed. However, we will say, lengthy as it is, we have read the entire bill, and do not think it contains any matter of which appellant could justly complain. To take an isolated sentence, and not its connection and bearing, objections might be urged, but when we take all the remarks, they were within the record, and while in some instances, rather caustic, yet no error is presented. However, in bill No. 13, it is shown that in his closing remarks Mr. Neff said: "Next they introduced to the jury some evidence that about twenty-five years ago A.P. Duncan, while in business in Calvert, hit a man over the head with an axe handle. They bring the man here from far off New Mexico, to show that this incident took place. The man who was hit, of course, says that he was doing nothing. We got out of him, however, that the difficulty arose about collecting a debt that this man owed the Duncan house. We know nothing of this man who refused to pay this debt, and the attorneys for the defendant would not permit us to prove that this same man was indicted in Robertson County about this time for the high offense of swindling." That part of these remarks, "the attorneys for the defendant would not permit us to prove that this man was indicted in Robertson County about this time for the high offense of swindling," was improper. When the court sustained an objection to this testimony, he should have severely reprimanded Mr. Neff for thus attempting to get this evidence before the jury. The court at the request of appellant did instruct the jury: "You are charged that you must not consider any remarks of the county attorney to the effect that the witness Bainum had been indicted in Brazos County. There is no such evidence in this case and the county attorney acted improperly in making the assertion." The court having given such instructions to the jury, the remarks were not of that hurtful and harmful character as to present reversible error.

We have carefully reviewed this record; studied the able and interesting brief filed by appellant's counsel, but after carefully considering the entire record we are of the opinion that appellant has had a fair and impartial trial; that no error was committed in admitting testimony before the jury, and that the court, in his main charge, and in the special charges given at appellant's request, fairly and fully presented the law of the case.

The judgment is therefore affirmed.

Affirmed.

ON REHEARING. June 10, 1914.