Harrell v. State , 39 Tex. Crim. 204 ( 1898 )

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of thirty years; hence this appeal.

The homicide occurred in Atascosa County, at a little place called Campbellton, on the 18th of May, 1897. The venue was changed to Frio County. The testimony on the part of the State showed that bad blood had existed between the parties for some time prior to the killing. On an occasion about a month before the homicide occurred, appellant and deceased met at a saloon in Pleasanton, and an altercation occurred, in which the deceased was assaulted by the defendant, and beaten over the head with a pistol. A severe wound was inflicted on his forehead, the flesh being cut immediately over his eye. From this and other wounds the deceased bled profusely. He escaped from the defendant, and after this the feeling appears to have been intensified. It appears that a school house in the neighborhood was burned, and defendant charged this upon deceased, against whom he made an affidavit for arson. On the trial of said charge deceased was discharged, and then made an affidavit against defendant before the justice of the peace at Campbellton for malicious prosecution.

The case was set for trial on the evening of the 18th of May, 1897, and the parties were in attendance at Campbellton on said day. Defendant and his relatives, the three McAdas, went from the home of the former to Campbellton. The testimony showed that they carried arms in the wagon, and arrived at Campbellton some two or three hours before the deceased who came in the evening on horseback, unarmed, and arrived about a half hour before the homicide occurred. He hitched his horse a little north of the store where the court was to be held. The testimony of the State tends to show that he proceeded from there towards the store, and was in full view of the defendant, who was on the street, some thirty or forty feet distant. In a short time, the court was called, and deceased proceeded towards the courtroom. Appellant, about the same time, started to the courtroom from an opposite direction, and intercepted deceased near the sidewalk of the old storeroom where court was to be held. Deceased turned his head in the direction of defendant, and defendant shot him, the ball entering his forehead. He fell with his head on the rock pavement. Defendant backed off from him, and was arrested in a few moments by Sheriff Avant, who came out of the courtroom. One witness for the State testified that immediately after the shooting he heard defendant say, "That's the way you intended to do me." Avant testified for the defendant that, when he came out and approached defendant, he said he shot deceased because he made a motion as if to draw a gun. Two or three witnesses testify for the defendant that at the time of the killing, and before defendant shot deceased, they saw deceased make a motion with his right hand as if to draw a pistol. The State's witnesses controvert this, stating that he made no demonstration whatever; that he had his hat down over his face, and was walking with his eyes and head downward, and evidently did not see the defendant until he was confronted by him, and was immediately shot down. The defendant proved a number of threats by the deceased to take the life of the defendant, most of said threats being of recent origin; that is, since the charge of burning the schoolhouse, and the assault made by defendant on deceased at Pleasanton, but some of said threats were more remote in time. Some of said threats were communicated to appellant, and some were uncommunicated. It was also shown by the defendant that, about a month or six weeks before the homicide, the deceased, in connection with the threats against defendant, also denounced his wife as a whore, which threat and insult were communicated to defendant by the witness McAda on the evening before the homicide. The wife of the appellant also testified that, about eleven years before the killing, deceased came to her house, in the absence of her husband, and cursed and abused her husband, and cursed and abused her; that she only communicated this matter to defendant on the night before the homicide. It was also shown by a number of witnesses for the defendant that deceased was a dangerous man, and one likely to carry out a threat made by him. The State, in rebuttal of the demonstration with the right hand testified to by the defendant's witnesses, showed that the deceased did not use his right hand in shooting a pistol at all, but used his left hand exclusively for that purpose, and that this habit was known to the appellant. This testimony, however, was controverted by the appellant. The State also rebutted appellant's testimony in connection with the insults to the wife of the appellant, by testimony tending to show that appellant was in proximity to deceased a little while before the homicide, and before the fatal meeting, and must have seen deceased. This was substantially all the facts adduced. The theory of the State was that the killing was unprovoked, and was done upon malice, and was either murder in the first or second degree. The theory of the appellant was that the killing was done in self-defense; that deceased, just before he was shot, made a demonstration as if to draw a weapon, and this, in connection with the bad blood existing between them, and the threats made by deceased against his life, was sufficient to induce him to believe that his life was in danger, or he was in danger of great bodily harm from an assault then being made, or about to be made, on him by deceased; that, under the circumstances, he had a right to kill him. He further contended that the homicide, at the most, could be no more than manslaughter, because of the insults to his wife, and that his passion was thereby excited, and that he slew him on the first meeting after such insults had been communicated to him. We have made this summary of the main features of the case in order to review the questions made by appellant, and insisted upon by him, as being errors which require a reversal of this case.

We will treat the fifth, eighth, ninth, eleventh, and twelfth assignments of error together, as they present the same question in different shapes; that is, they are all assignments on account of the refusal of the court to permit the defendant to introduce in evidence statements made by himself to other witnesses on various occasions. The fifth assignment is substantially as follows: Mrs. Harrell testified that, about two months before the killing, she and her husband and family went to church, and the deceased was also there. After church, she and her husband (defendant) started home in a wagon. Deceased and two other men, with guns, came in sight about one and one-half miles from the church, coming across the country, and in the direction of the road ahead of the wagon in which the defendant and his wife were traveling. Defendant had the wagon to turn around, and they went back, and he borrowed a horse from one Roundtree. This testimony was admitted, and appellant offered to show by Mrs. Harrell in that connection that her husband stated that he wanted to go home another way, to avoid the deceased. With reference to this particular testimony, we would state that this was no part of the res gestae pertaining to the homicide. It was sought simply by this declaration of the appellant to prove his reason for returning to the church and borrowing the horse and taking another road home, which, as he stated, was to avoid the deceased. Evidently, this purpose was made as manifest to the jury by the proof of the acts done as if appellant had been permitted to testify as to his intention. The jury, if they believed the testimony, could have put no other construction on the act of the defendant than that he was actuated by a purpose to avoid the deceased on that occasion. And so we fail to see any injury that could have ensued to the appellant by the exclusion of this testimony, even if its admissibility be conceded as a part of the res gestae of the appellant's acts on that occasion. We would further observe in regard to this testimony that the bill shows no act of deceased or his companions manifesting a hostile intention towards the appellant on that occasion. So far as we are advised, deceased's mission on that occasion had no reference to the appellant, and was absolutely harmless.

The eighth assignment of error shows that one Jerd Campbell, a witness for the appellant, testified, on the day that defendant was shown to have assaulted and beaten deceased at Pleasanton, that he heard deceased thereafter make threats against appellant, and that he was hunting for a gun to kill him, etc. He communicated these threats to the appellant, and then it was proposed to prove by him that appellant said: "I will go to see Avant [meaning the sheriff] and see if I can get off. If I can, I will go home, because I do not want to have any trouble with the deceased. I do not care to meet him, and want to keep out of his way." Defendant also offered evidence in this connection to show that appellant came to Avant, he being a witness in attendance on the court at that time, and asked to be released, stating that "Peeler had threatened to kill him, and had tried to borrow a gun for that purpose, and that he wanted to go home, etc., to keep from meeting Peeler, and that Avant excused him, and about an hour thereafter appellant did go home. On objection, this testimony was excluded, as being irrelevant, hearsay, and self-serving. These declarations of appellant were no part of the threats made against him by the deceased. At most they only showed a fear or apprehension on the part of the defendant on that occasion, which was long before the homicide.

The eleventh assignment of error shows that the appellant desired to prove that, on the day before the trial, he requested Sheriff Avant, of Atascosa County, to be present on the next day, because Peeler would be there, and he wanted him there to keep down any trouble with Peeler, and that he did not want any trouble with Peeler, and that he expected to sell out and leave the country to keep from being troubled with Peeler as soon as he was through with his case. The twelfth assignment of error shows that about a month before the homicide, on appellant being informed that deceased had bought a new gun, and that he had told the witness Smith that Harrell (appellant) had to leave the country, the appellant proposed to prove in that connection that appellant told witness Smith that deceased did not have to run him out of the country with a gun, that he was going to sell out and leave the country, and he offered to sell to the witness some of his personal property, — horses, cattle, and some of his farming implements. All of this testimony as to what appellant may have said was excluded by the court. It is said that it was a part of the res gestae, as being what appellant should have said when these matters were communicated to him. They were not res gestae of the acts or declarations proven, but merely what appellant should have said to the witnesses when he was informed thereof. So, we fail to see how they were res gestae. It is contended that this testimony would serve to shed light on the condition of the mind of the appellant at the time of the homicide. Threats are admissible for two purposes: First, if the testimony is conflicting as to who began the violence, or this fact is in doubt, threats, whether communicated or uncommunicated, are admissible to solve the probability as to who began the violence; second, where the accused relies upon some act committed by his adversary, accompanied with or without words, as an excuse or justification for the homicide, communicated threats are admissible for the purpose of qualifying and intensifying the act relied upon, because the accused has the right to view the act of his adversary in the light of the communicated threats and the character of his adversary. Evidently, what was said or done by the accused when the threats were communicated to him would have no tendency to qualify the act relied upon as an excuse for the homicide. Threats to take life in a homicide case are, as a general rule, admissible, and also the dangerous character of the party making the threats; but we know of no rule which authorizes proof to be made of what the party may have said about the threats, when they were communicated to him. With reference to all of this testimony, we would observe that, even if it be conceded that it was admissible, then we say that its rejection was absolutely harmless. It is said that they would serve to show the condition of his mind at the time of the homicide. The condition of his mind at that time was unquestionably a material issue in the case, and, if it be shown that such testimony would tend to solve any unsolved issue, there might be error. Now, what unsolved issue would it tend to establish? The jury found that he was not of cool and deliberate mind at the time of the homicide, and was not therefore guilty of murder in the first degree. They evidently found that his mind was perturbed and excited on that occasion, for they found him guilty of murder only in the second degree. Consequently, it would have added nothing to the proof made in that regard, which fully served the purpose with the jury to reduce the homicide from murder in the first degree to murder in the second degree. Nor would this testimony have served the purpose of shedding any light on the issue of manslaughter. The jury found the state of mind, — that appellant was not cool and deliberate; but they failed to find that adequate cause existed, and so we do not see how the rejected testimony would have been of any benefit to the appellant on this ground. How as to the issue of self-defense? No matter what was shown as to the condition of the mind of appellant at the time, this testimony would have shed no light on the question as to whether or not deceased in fact made it demonstration against appellant. So, we fail to see any useful purpose that this testimony would have served; and as stated above, as presented, there was no error on the part of the court in the rejection of this character of testimony. It appears to us to be hearsay, and simply self-serving.

During the progress of the trial, the court interfered in the examination of the witnesses, and interrogated quite a number. Appellant objected to this interference on the part of the court, and particularly to his manner of examining said witnesses, on the ground that the questions were leading, and that the method pursued by the court was calculated to indicate to the jury that he discredited the witnesses. The second assignment of error under this head is based on the third bill of exceptions. Will McAda, a witness for the defendant, had testified to certain threats made by the deceased against defendant, which he stated he did not communicate. The court then asked the witness "why he did not communicate said threats to defendant." He replied that "he did not do so, because He thought it might make things worse." The court then said to the witness, "You did tell him?" to which the witness answered, "Yes, sir;" and then the court asked, "Did it make things worse?" and the witness answered, "Yes." Appellant objected to this testimony, on the ground that it called for an opinion of the witness, and indicated to the jury the opinion of the court on the evidence, and bore upon its weight. The nature of the threats is not stated in this bill, and we are not advised of their character. The threats may have been of such a character and the circumstances connected therewith, as that the witness was authorized to state his apprehension as a reason for not imparting them, and then, when he did communicate them, he may have known that the communication of said threats was the prime cause that made "things worse." In what respect it made them worse, we are not informed. The bill is not full enough. It may be, if we had a full exposition of the matter, that we would be prepared to hold that his testimony was prejudicial to appellant; but as it comes before us, we can not say that it was.

The court asked appellant's witness Tom Smith if he had ever seen the defendant Harrell with a pistol, to which question the witness answered, "Yes." Appellant excepted to this action of the court, because it was an inquiry into the character of the defendant in regard to his habit of carrying a pistol, and as defendant had not put his character in issue, such evidence was not admissible. We do not regard this as evidence of defendant's character; nor are we informed in what connection the court may have asked this question. If we recur to the evidence in the case, it shows that the appellant was a constable, and, as such, had a right to carry a pistol. Aside from this, if the witness had answered that the defendant was not in the habit of carrying a pistol, the fact that he had one on the occasion of the homicide might of itself have been a significant fact against the defendant. We fail to see how this answer could have injured appellant.

Foster, a witness for the defendant, testified on direct examination, that he had a conversation with the deceased, and deceased had inquired of witness if Harrell was in town, and remarked, "I want to see him up the street here; I will fix him." The witness stated that he did not tell Harrell this until after the killing of the deceased. The State cross-examined this witness in regard to the time of such conversation. The court then, over the objections of the appellant, took the witness, and asked him: "Why he did not communicate this matter before the homicide, and stated to said witness, 'You knew this was an uncommunicated threat at the time of the killing?' to which witness answered, 'Yes.' 'You knew the defendant could not have acted on said threats at the time of the killing, because he had not heard them?' The witness answered, 'Yes.' " This testimony was objected to, because the court had no right to ask leading questions, nor enter into an argument with the witness for the purpose of discrediting him. The threats testified about by this witness could not have materially influenced appellant in would he did, as he was not aware of them until after the homicide; nor would it tend to show that the deceased made the first demonstration to bring on the difficulty, because deceased was unarmed at the time, and evidently not in a condition to have brought on the difficulty with his adversary, whom he knew was armed. It is not shown by the bill that this witness testified to any material fact; and so, if it be conceded that the method of the court in examining this witness was improper, yet no injury is shown to have resulted from the action of the court.

Hinds, a witness for the appellant, testified that the deceased was a violent and dangerous man, and one who might reasonably be expected to execute a threat, and he always believed what deceased told him. The court then took the witness and asked him the following question: "You mean by this that he was a determined man, as I understand you; that you always believed what he said?" The defendant objected to this question, and the court then remarked in the presence of the jury: "I want to understand the witness' testimony. That is what I am after." Counsel for appellant then said: "May it please the court, that is a matter for the jury to determine." The court replied: "That is the question I want to find out from the witness." Defendant's counsel then said: "The witness is asked a question, and his answer is for the jury." The court replied: "The witness can explain." The court then asked the witness the following question. "Have you put it on the presumption that he was a violent and dangerous man? I want to know. You say you believe what he said?" — to which witness answered in the affirmative, and said: "If deceased stated that he would pay witness $1000 on a certain day, he would do so; and if he said he would kill him, he would kill him." The court qualified this bill, but the qualification is of no importance. It will be noted that, whatever was the purpose of the court in examining the witness, the examination only served to fix more firmly the fact testified to by the witness, and he enforced what he meant by giving an apt illustration. The effect of this examination of the witness by the court was to bring out in bold relief the fact testified to by the witness, to wit, that deceased was a man likely to execute a threat he had made. This was not injurious.

Mrs. Spivey was a witness on behalf of defendant, and, on cross-examination by the State, she was asked the following question: "Did you not tell Mrs. Peeler, at your house, on or about the 23d of October, that, on the day of the killing, Will McAda came to your house in company with the defendant and Joe Kerr, and that Will McAda had on a pistol, but that it would have to be dragged out of you?" The witness answered that she did not make such statement. "The State then asked: "How did you and Mrs. Peeler come to be talking about the case?" — to which the witness answered, "I went with her from church, and we talked about one thing and another, and she was trying to see if she could not pick something out of me. Thereupon the court asked the witness the following question: "What did you mean, Mrs. Spivey, when you said that she was trying to pick something out of you?" — to which the witness answered: "Well, to see if she could not get something to tell." The court then asked the witness: "Is that your opinion of Mrs. Peeler? A. Well, it was not until I found that out." The court then asked: "How did you find that out?" To all of this examination by the court the appellant objected. The examination by the State was had for the purpose of laying a predicate for the impeachment of the witness by Mrs. Peeler. It is not shown by the bill that Mrs. Spivey testified to anything material for the appellant, and in the absence of such showing, we can not presume that Mrs. Spivey was a material witness for him. Therefore, if the manner of the court and his asking the questions tended to cast some discredit upon this witness, we can not say that it was injurious to the appellant. Even if it was the purpose of the court to confuse the witness as to the integrity of Mrs. Peeler, it failed in that purpose, for the witness stated that her opinion of Mrs. Peeler was formed from her conduct on that occasion.

With reference to all the bills of exception bearing upon this action of the court, we have to say that, judging by the bills themselves, we can not see how the action of the court was prejudicial to the appellant; but we do say that this conduct of the court in our opinion, was very reprehensible. Our Code of Criminal Procedure marks out the duties of the court and the respective officers thereof, during the trial of a criminal case; and we do not understand it to be any part of the duty of a judge to take in hand examination or cross-examination of witnesses. These functions belong to the respective counsel on either side, and it is presumed that they know how to discharge their duties properly. If they do not comply with the rules in regard to the examination and cross-examination of witnesses, it is the duty of the court to see that they do comply. It may be the province of the court to sometimes inquire of a witness as to some statement made by him for a clearer understanding on the part of the court, but it can never pertain to him to interfere in the case, and take the examination of a witness out of the hands of counsel, whose business it is to conduct the examination. As to a matter of this character, the court should studiously abstain from interfering. He should avoid even the appearance of partiality. It would be almost impossible for the court to take part in the examination of witnesses without impressing the jury with the belief that the court believed or disbelieved the testimony of the witnesses, whether the court intended to make such an impression or not. Our Code of Criminal Procedure is very particular in regard to this matter. Article 767 provides: "In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he at any stage of the proceedings previous to the return of the verdict make any remark calculated to convey to the jury his opinion of the case." Now, in the examination of a witness, however fair-minded the judge may be, it would be almost impossible for him to so conduct it as not to suggest in some measure that he is on one side or the other. And, moreover, we have noticed that, when the court attempts to thus usurp the functions of counsel, he is apt to ask questions that are leading in character, and that are otherwise objectionable. By carefully attending to his own duties and conserving his own functions, he will best be able to hold the scales of justice impartially as between the counsel who are managing the case for and against the State; and, whenever he does interfere, it is generally at the expense of his own authority and dignity, which should be rigidly guarded, in order that he may administer the law with fairness and impartiality, and with that authority and power which pertains to the office. We can not commend the action of the judge in his attempt to interfere with the province of counsel for the State in the examination of witnesses, and, if it appeared to us that such interference on his part was calculated to prejudice the rights of the appellant, we would not hesitate to reverse this case. Such interference on the part of a judge can never be called for, and especially in this case, where both the State and the defendant were represented by able counsel, it was absolutely unwarranted.

W.E. Toms was introduced by the State, and the court permitted him to testify that just before the shooting, when he saw defendant coming towards the deceased, he (witness) pulled his hat over his eyes, because he thought there would be trouble. Appellant objected to the question because it called for the opinion of the witness; and he objected to the answer when made, because it was an opinion of the witness. Evidently, the community were looking for trouble between the two men when they met, and the fact that, a few seconds after the witness pulled his hat over his eyes, trouble did begin, is shown by the undisputed evidence in the case. The witness did not state that he was looking for one or the other of said men to become the aggressor, and we can not see how the statement made was calculated to injure appellant.

We think it was competent for the State to ask the defendant's witness Thomas Smith, either in order to refresh his memory or to impeach him, if he had not testified on habeas corpus trial that everyone knew that deceased shot with his left hand. No objection was made that this called for the opinion of the witness, but the objection was merely to the question on the ground that it was irrelevant.

The court did not err in sustaining the objection of the State to the proposition of the defendant to prove by Mrs. Spivey that in connection with the threats she heard Peeler make against the defendant, which she communicated to him, she also told him that Peeler was a bad man, and that he had killed some men. The language of the witness was no part of the language used by the deceased in threatening the defendant. Appellant had the full benefit of the threat made, and the court did not err in refusing to permit the witness to inject her opinion of Peeler and the fact that he had killed some men. If Mrs. Spivey knew the deceased and his reputation, that could have been proven by her, but this is not the case here presented.

It was not necessary for the court to instruct the jury with regard to the testimony adduced by the appellant to impeach the witness George M. Martin. This was not the case of the State introducing hearsay evidence which involved the statement of a material fact in impeachment of a witness, but it was where the defendant attempted to impeach a State's witness. If the court had charged on this subject at all, it would merely have instructed the jury that certain witnesses had been introduced to impeach the State's witness George M. Martin, and, if they believed that the impeachment had been successful, that then they would not consider the testimony of said Martin; otherwise, his testimony was before them to be considered along with the other testimony in the case. But such a charge can rarely be called for, and, where it is given, great care should be observed lest it be a charge on the weight of the testimony. The failure to give such a charge was not error.

In connection with the charge on murder in the second degree, the court outlined a charge on self-defense. This was evidently given by the court in order to present a charge on murder in the second degree, which is a killing upon malice, not express, and where the homicide is not reduced, excused, or mitigated, and not done in self-defense. This charge is objected to, because it is claimed that it permitted the jury to convict the defendant, if from the jury's standpoint there was no actual danger to the defendant, and not from the defendant's standpoint. In addition to this charge on self-defense, which was given in connection with the definition of murder in the second degree, the court gave a full charge on self-defense, predicated on that phase of the case as presented in the testimony; and in this charge the jury were specially instructed that there need be no actual danger to the defendant at the time of the killing, provided he acted upon the reasonable apprehension of danger as it appeared to him from his standpoint at the time of the killing, and that in such case appellant was in no event bound to retreat in order to avoid the necessity of taking the life of the deceased. This was all that was necessary, and the jury could not have been misled by the excerpt on self-defense, in connection with the charge of murder in the second degree, which is assigned as error.

Appellant also objected to the charge of the court on self-defense, because the same is circumscribed and limited in connection with the charge on threats. This was certainly in accord with the facts of the case as presented in the defendant's testimony. As an integral part of his right of self-defense based on a mere "hip-pocket" demonstration, he introduced threats. These were for the purpose of giving significance to the alleged demonstration, and we are constrained to believe that without the threats, which were abundantly shown by him, the movement of the hand of the deceased at or about the time of the difficulty could have had no significance.

We can not agree with appellant that any confusion was engendered by the failure of the court, to charge actual danger and apparent danger in separate charges. If it be agreed that there was no actual danger, as appellant appears to concede, then the charge in question fully authorized the jury to accord him the full right of self-defense on apparent danger, and we fail to see how he could complain.

The court gave a charge on manslaughter, based on the insults alleged to have been offered to the wife of the appellant, and communicated to him on the night preceding the homicide. The objection to this charge is "that it failed to instruct and explain to the jury that the provocation might arise at another and different time from the time of the killing;" and, further, the court erased from the written charge the following paragraph: "The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation." This erasure was made by drawing a pen across said clause. This was not read to the jury as a part of the charge of the court, and this is the ordinary way of making an erasure of this character, and it was evidently so understood by the jury. This elimination was intended to meet an objection which might have been urged against the charge had it remained, — that is, that this confined the jury to a provocation arising at the time of the commission of the offense; and in that shape it would have been incongruous with that portion of the charge which told the jury that insults to the wife of the appellant, occurring before the homicide, but afterwards communicated to appellant, could be acted on by him at the first meeting, and if, under such circumstances he killed appellant, it would only be manslaughter. See Lawrence v. State, 35 Tex.Crim. Rep..

Appellant assigns as error that the court nowhere defines, in the charge given, "malice aforethought." On this subject he refers us to Childers v. State (Texas Criminal Appeals), 13 Southwestern Reporter, 650. We have referred to said case, but do not find the charge given by the court. The court merely says that the charge does not explain to the jury the legal meaning of the term "malice aforethought," and that the omission to give such explanation is not supplied by the definitions of "express malice" and "implied malice" contained in the charge. Crook's Case, 27 Texas Criminal Appeals, 198, is also referred to. The charge is not given in that case. In that case the court says: "In all trials for murder, it is the imperative duty of the court to instruct the jury as to the meaning of 'malice' or 'malice aforethought.' It is fundamental error to omit such instructions, and the definition of 'express malice, will not cure this omission. In this case the charge fails to explain the legal meaning of 'malice aforethought.' " The court here appears to treat "malice" and "malice aforethought" as convertible terms, and this seems to be in accord with Mr. Wharton. See 1 Whart. Crim. Law, sec. 303. Mr. Stephens gives a more extended definition of "malice aforethought;" or, rather, instead of a definition, he gives illustrations of malice aforethought. In this case the court gave a definition of "malice" as follows: "Malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." This charge has been approved by this court in the case of Martinez v. State, 30 Texas Criminal Appeals, 129, and was thoroughly discussed there, and authorities cited, and we will not enter into any further discussion of the question.

Appellant singles out a portion of the charge on murder in the second degree, and claims that it is erroneous, because it instructs the jury "that, in murder of the second degree, malice will be implied from the fact of an unlawful killing." This is merely an excerpt or a part of the charge on murder in the second degree. When the whole is taken into consideration, it is correct, and the jury could not have possibly been misled.

Nor do we believe that the court erred in failing to give a more elaborate charge on manslaughter than was given. Besides charging on the particular provocation, on which appellant's defense of manslaughter was predicated, he told the jury, in connection therewith, they could consider all the facts and circumstances in evidence in the case; "and if you find that by reason thereof, that the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in evidence in determining the condition of the defendant's mind at the time of the alleged killing, and the adequacy of the cause, if any, producing such condition." This was certainly giving appellant the amplest latitude, when really the only factor in the case suggesting manslaughter was the insult to appellant's wife.

We have examined the record carefully, and, in our opinion, the evidence sustains the verdict, and the jury were fully warranted in assessing the punishment which they did. We gather from the record that appellant went to the scene of the homicide with the intent to slay deceased, and the jury were fully warranted in discarding and disbelieving, as they did, the testimony regarding the insults to appellant's wife, or that they were the moving cause to the homicide. Appellant had exhibited his malice towards the deceased on previous occasions. Only a few months before, he had him arrested on a charge of burning a schoolhouse. Deceased appears to have been acquitted of the charge, and, in turn, to have preferred a charge against appellant of malicious prosecution, which was to be tried on that particular day. In the meantime, some months before the homicide, appellant had, on slight provocation, severely beaten deceased over the head with a sixshooter. He appears in all their troubles to have been the aggressor. On the fatal day, deceased came to the place of trial unarmed, and his condition in that respect was observed by a number of witnesses, and defendant, who was within twenty or twenty-five feet of him when he arrived and hitched his horse, must have seen him then and afterwards. Appellant came to the place with guns and pistols in his wagon, and with his three cousins. When court was called, deceased immediately went from the opposite building, where he was standing with the county attorney, Martin, towards the courtroom door. This must have been observed by the appellant, who stood in front of the same building, some twenty steps north of him. He immediately left his place, and started towards the courtroom door, closely followed by one of his cousins, and another was close by. He intercepted deceased when near the courtroom door, and, as the latter turned his head towards him, he appears to have been ready, and immediately fired, shooting him through the brain. A number of witnesses for the State testify that deceased could not have observed appellant while he was en route to the courtroom, as he had his head down, and his hat rather over his eyes. Appellant approached deceased rather to his left. The State's witnesses, some of whom were observing deceased, state that he made no motion or demonstration with his hands whatever. Defendant's witnesses — that is, his two cousins, and perhaps another witness — state that the deceased at this juncture threw his right hand towards his hip. Unarmed as he was, and knowing that his adversary was armed, why he should make this movement is remarkable, unless, on seeing his adversary about to shoot him down, he made some involuntary movement with his hands, just as he received the fatal discharge from appellant's pistol. At any rate, the jury appear to have disbelieved the "hip-pocket" movement, which is so often invoked, and to have adopted the theory of the State, which to our minds appears more reasonable and more worthy of belief, and we do not feel inclined to disturb their verdict. We believe the jury were fairly charged upon all the issues in the case, and that they would have been fully warranted in finding a much severer verdict than they did, for, in our opinion, the record here would sustain a homicide upon express malice. No errors appearing in the record authorizing a reversal of this case, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]