Davis v. State , 102 Tex. Crim. 608 ( 1925 )

Our statement in the original opinion that "the use of said language violated no law of this State," was only made to meet the contention of appellant that to allow proof of the use of such language, was to allow proof of an extraneous offense. Nothing is legally an "offense" except it offend against some statute. Appellant now urges that it was hurtful to him, and therefore objectionable, because it was the introduction of evidence of a prior and disconnected contest, controversy and difficulty, and he cites Brown v. State, 112 S.W. Rep. 80; Vana v. State, 246 S.W. Rep. 1034, and Baker v. State, 11 S.W. Rep. 676. None of said cases are analogous on the facts or principles involved. In Baker's case Judge Hurt said no light on a pistol carrying case was afforded by proof of a quarrel and separation of the brother of appellant and his wife, the charging of one or the other with adulterous conduct, etc. In the Vana case Judge Morrow said that proof of vulgar remarks of appellant in the presence of one little girl, and indecent conduct with another little girl, shed no legitimate light on a charge against the accused of fondling the person of a third girl. In Brown's case Judge Davidson said the details of a difficulty had by appellant with Miller, objected to as not having any connection with the homicide on trial, and whether appellant was right or wrong in his difficulty with Miller, were immaterial, etc., and that it was a safe rule to limit evidence to the case in hand, and exclude evidence of extraneous offenses, contests, controversies and difficulties. Appellant called another man's wife "Sweetheart," and the other man, for that, shot at appellant, who on the instant occasion shot said other man. The conduct and statement of appellant at the time of the first shooting was in no sense disconnected or extraneous, but plainly led up to and was materially related to the case on trial. Appellant testified to threats against him by Gilliland, the injured party, and that on the occasion of the shooting he saw Gilliland on the street and thought he would speak to him, and just as he went to open the door Gilliland made a play for his gun; that the latter threw his hand down by his side here (indicating) to get his gun, and "when he did that, why I shot him. I knew he was going to get a gun. I knew he was going to get it. When I shot he kept trying to get his gun. * * * When I shot at him the second time I thought he was seeking a better position to shoot me. He still had his hand here (indicating) and it seemed like he was trying to pull a gun out. At the time I shot at him, at that time, I thought he was going to shoot me."

In view of all the testimony it would be but a repetition to allow the accused to further state that he thought Gilliland was evidencing an intention to execute a threat previously made, and the action of the court in sustaining the State's objection to such statement would not be material error, if at all.

The motion for rehearing will be overruled.

Overruled.