Full opinion text
PRENDERGAST, J. On September 15, 1910, the grand jury of Nacogdoches county indicted the appellant for the murder of Eli Box on May 2, 1910. Some time in October, 1910, he was tried in the district court of Nacogdoches county, or rather there was a mistrial, because the jury failed to agree, and were properly discharged by the court on that account. Prior to said mistrial, the appellant made a motion to change the venue, which was contested by the state and the evidence heard thereon by the judge, who denied the appellant’s motion. The record in this case shows that it (the record) was applied for by the appellant’s attorneys on March 11, 1911. The trial from which this appeal was taken began on March 2, 1911, and continued until at least some time on March 7, 1911. The record proper, >and original statement of facts, was filed in this court on May 24, 1911. There appears with the record a certified copy of what purports to be a statement of facts heard by the judge below on appellant’s motion for change of venue. It seems to have been applied for by appellant’s attorneys on June 1, 1911, and was not filed in this court until June 14, 1911. It is separate from, and not a part of, the record proper in the case. There is no bill of exceptions anywhere in the record containing this purported statement of facts. Article 621, G. G. P., prohibits the order of the judge granting or refusing a change of venue from being, revised on appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved, ■ and filed at the term of court at which the order was made. It Is needless to cite the cases decided by this court under the said article, but they all conform thereto. Therefore the manner in which this matter is presented, it cannot be considered by us, nor can we consider, for any purpose, the purported statement of facts filed'herein on that subject. Besides what is stated above, it appears from the record that on October 19, 1910, the judge of the district court of Nacogdoches county on his own motion, as he clearly had the right to do under article 613, C. O. P., changed the venue from Nacogdoches to Shelby county, which was one of the counties within his district, and recited fully in his order the grounds — which were amply sufficient — for such change of venue. This order is full and complete, and shows that the appellant was personally present, as was his counsel and the district attorney, and no exception or objection appears therein. However, there is a bill of exceptions in the record now which shows that at the time the court entered the order changing the venue appellant objected to the court’s order changing the venue from Nacogdoches to Shelby county at the time it was made, because, in substance, the county seat of Shelby county’ was further from the county seat of Nacogdoches county than some of the other adjoining counties in the same judicial district, and that Center, the county seat of Shelby county, was inaccessible and inconvenient to reach because of the railroad facilities and train schedules, and that the same prejudice against appellant existed in Shelby county that had existed in Nacogdoches county, caused by the publicity of the charges against appellant and the trial of this cause in Nacogdoches county, and also because appellant had once before been tried in Shelby county on account of proceedings in a divorce suit of his therein, and that some of the witnesses therein had been indicted and convicted of perjury, and he himself had been indicted and tried for subornation of perjury in the same case, and that these objections did not obtain in some of the other adjoining counties to Nacogdoches. The court in allowing this bill qualified it by stating that he did not approve as correct the appellant’s statements therein as to the schedules upon which trains are run, and the various connections of the trains and the distances between points as set out therein, and he stated that it was not known that the same schedules would he in effect when the case would be called for trial in Shelby county. And “it was shown that the divorce suit and prosecution of defendant’s witnesses for perjury occurred some 14 years ago, and that, if there was an indictment of defendant growing out of the transaction, it was dismissed many years ago, and it was shown to the satisfaction of the court that the attention the divorce suit, and its in-cidents attracted, was local to the neighborhood where the parties then lived, and that from lapse of time this had been mostly, if not wholly, forgotten.” By another bill in this connection, it was shown that, when the case was called for trial at this time when it was tried, the appellant objected' to announcing therein because the court had erroneously changed the venue from Nacogdoches to Shelby county, and requested that the case be transferred back from Shelby to Nacogdoches for the reasons shown by defendant’s bill of exceptions above noted; that the court refused this, and required appellant to announce, to which he excepted. In allowing this bill the court qualified it by stating “that no motion or affidavit was made to change the venue — a mere verbal suggestion by counsel for defendant.” The way this matter is presented no reversible error whatever is shown by the court of his own motion changing the venue from Nacogdoches to Shelby county, as he did; nor by refusing to retransfer the case from Shelby .to Nacogdoches county, nor in requiring the appellant to announce under the circumstances. When the case was called for trial, appellant made a motion to continue it, which was his second application to continue, on account of the absence of ten witnesses, naming them, and giving their residences. In his motion he states the diligence used by him to procure their attendance, and states that he exhibits to the court each and all of the process hereinabove referred to by him in his application for its inspection and as a part of his motion for continuance. This process nowhere appears in the record. The motion shows the testimony the appellant expected to prove by each of said witnesses. Briefly, what he expected to prove by May-field, Long, and Escabar- was that they were his section hands, and were present when the killing occurred; that deceased was approaching him while he was sitting on the hand car with his back to deceased, and that deceased had his hand in his bosom; that appellant called to him and told him to stop and not come up to him; that he then got his gun and again demanded of deceased to stop, saying, if he did not, he would have to shoot him, and then instantly fired; that they saw no change in deceased’s position when appellant was requesting him to stop; that they could see deceased only from his waist up; that they know appellant distinctly called deceased to stop twice before appellant got his gun and once after he got it. The court overruled the motion. Neither the application nor the record elsewhere shows that the appellant thereafter applied for or had issued any other process to procure the attendance of any of said witnesses. As stated above, the case was called for trial on March 2, 1911. The trial continued from that time until some time during March 7, 1911. In allowing the bill to the overruling of this motion the court qualified it by stating “that most all witnesses named appeared before evidence was closed, and, as explained by the evidence and proceedings, on motion for new trial and contest of same by state. See record of same.” There appears with the papers in this cause a separate document which appears to be an original statement of facts which was heard by the court below on hearing the appellant’s motion for new trial. It was prepared by the court stenographer, and certified to by him on April 11, 1911, and agreed to by the court and all the parties thereto. It was filed in the court below on May 15, 1911. That term of court, as shown by the record, adjourned on March 14, 1911. It has been uniformly held by this court that such a statement of facts must be filed during the term of the court at which the trial occurred, and that the statutes permitting the statement of facts on the main trial to be filed after term time did not apply to such statement of facts on the hearing of the motion for new trial. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases therein cited. So that this court cannot and does not consider the said purported statement of facts on the motion for new trial. In this connection, the record shows that the overruling of the said motion for a continuance was made one of the grounds of the motion for new trial, and that said motion for new trial was contested by the state, and particularly on this point. Among other grounds urged by the state in said contest was that the appellant was able to prove, and did prove, by other witnesses, in substance, the same matters which he alleged he could prove in said motion for a continuance by the witnesses Ford Parmelly, Pink Grayson, and Mrs. Pink Grayson, and because the witnesses Ed. Long and Joe Escabar, who were alleged to have been present at the time of the killing, would not have testified to the facts set up in said motion for continuance, but if they had been present, and if they had so testified, said testimony was not probably true, and the state attached as an exhibit to and a part of said' contest the affidavit of said Long, which was made on May 4, 1910, fully detailing what his testimony would be, and shows that his testimony would have been entirely different from what was claimed by appellant in his motion for a continuance. The state also in said contest and as a part thereof, in addition to attaching the affidavit of said Long, also attached the affidavit of John McCuistian and John Mayfield made May 4, 1910, for the purpose of showing that the facts which defendant alleged that he could have proved by the witnesses Long and Escabar were not probably true, and would not have been testified to by said witnesses had they been present. The affidavit of said Mayfield is as follows : “I, John Mayfield, make this as a voluntary and true statement of the facts as I know them in reference to the killing of Eli Box by T. S. Treadway on the 2d day of May, A. D. 1910. On the morning of the killing, the section gang, composed of myself, John McCuistian, Edward Long, three Mexicans, and T. S. Treadway, met at the section house, and .left same about 7 o’clock on a hand car to go to a portion of the track near Eli Box’s farm. Treadway claiming to have orders to do some work at that point, we arrived at that point — that is, near Box’s farm — and had been at work about an hour, when I first saw Mr. Box. He came, riding horseback, down through his field, and got off of the horse, and went down to where his little boy was hoeing, and stayed there some little bit, and then left, and the next time I saw him he and his three little boys came back up in the corn patch situated near the right of way. Two of the little boys had their horses and ploughs, and the other little boy had a hoe. Treadway during all of this time was sitting on the end of the hand car, which was on the track, and was situated so he could see Mr. Box. While Treadway was sitting on the end of the hand car, and after Mr. Box and his little boys had come into the corn patch, as above stated, I heard Treadway say in a low tone of voice, ‘Don’t come any further,’ and supposed at the time he was 'talking to we section hands who were at work, as Mr. Box could not have heard the remark. At that time I saw Mr. Box, and he was standing up in the cornfield some 30 yards with his right side to the railroad track and to Treadway, apparently looking after the little boys at work. Soon after Treadway made this remark, he got off of the hand car and went to where his gun was, which he had leaned up by the side of an embankment when we first got there, and picked up the gun and walked down by the side of the embankment some eight or ten steps, and threw up his gun, and shot Mr. Box, stating at the time: T will kill you.’ At that time —that is, when the shot was fired — I saw Mr. Box, and he was in the same position as above described — that is, with his right side towards the track and towards Tread-way, and doing absolutely nothing — and at the time the shot was fired Mr. Box seemed to be looking the hands at work, with his head turned in that direction, and was not looking at Treadway. Mr. Box at the time the shot was fired was standing perfectly still, and making no movement with his hands that I could see, and not looking at Treadway, and was some 30 yards away from where Treadway was. Mr. Box was in his shirt sleeves at the time. Immediately after Treadway fired the shot, he walked back to where we were at work, and gave two Mexicans some instructions with reference to the fixing of the track, and told me, McCuistian, Long, and a Mexican by the name of Joe Escabar to get on the hand car, and bring him to town. While we were on the way to town, he made the remark he ‘had killed the damn son of bitch,’ and told us he wanted us to swear that Mr. Box was coming towards him with his hand in his bosom, and asked the Mexican if he, the Mexican, understood what he, the Mexican, was to swear, and the Mexican told him ‘No,’ and Treadway then told the Mexican that he must swear that Box was coming on him, Treadway, with his hand in his bosom. Me and Long made no reply to Treadway when he told us what he wanted us to swear, but McOuistian told him that he was going to tell the truth. From where Treadway’s gun was sitting by the embankment, Treadway could not see Box, and he had to walk down by the side of the embankment some eight or ten steps to about the point from which he fired the shot in order to see Mr. Box. Treadway asked us after we got on the hand car, and while we were on the way to town, if we heard him say, ‘Stop,’ or ‘Don’t come any farther.’ Treadway remarked on one occasion before the killing, in the presence of me and possibly the other members of the section gang, that, if he did kill Box, he would have some damn good witnesses, and I heard him say on different occasions prior to the killing that, if old man Box fooled with him, he would kill him. Treadway carried his gun from the section house on the hand car with him on the morning of the killing. I do not think that Mr. Box saw Treadway at the time he shot him, or had the least intimation or warning that Treadway was going to kill him. Treadway seemed perfectly cool, and was not excited, so far as I could see, either before, at the time, or after the shooting. Mr. Box had no weapon of any kind that I saw, and had done nothing to indicate that he intended to do Treadway or anybody else any harm, but was apparently engaged in looking after his little boys in their work.” The said affidavits of Long and McOuistian were substantially the same as Mayfield’s. The state further alleged in said contest, and offered to prove upon the hearing of the motion, that three of the six parties— McOuistian, John Mayfield, and Jesse Garza ■ — shown to have been present at the time of the killing, were present in court upon the trial of this cause when tried in Nacog-doches county, and that the witnesses Long and Escabar were both present at that trial, and that the appellant did not then use either of them, nor any of the other parties shown by him to have been present at the killing; and, further, that the appellant in his motion to continue alleged under oath that he could prove the same facts by the witness Mayfield that he could prove by the witnesses Long and Escabar, and that the state would show and offer to prove upon the hearing of said motion for new trial that said Mayfield was in attendance on this court, having arrived after the presentation of said motion for a continuance and before the jury was completed, and remained in attendance through the trial, and that appellant- did not offer him as a witness in appellant’s behalf, thereby showing that the allegations in his motion as to what he could prove by said witnesses were untrue. The judgment of the court overruling the motion for new trial shows that the court heard the evidence submitted on the hearing thereof, and overruled the motion. As stated above, the purported statement of facts or said hearing, not being in the record, and not having been prepared and filed during term time, cannot be considered for any purpose. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. It is uniformly held by this court that, where there is not a statement of facts on an appeal, this court will indulge every reasonable presumption that the action of the lower court was sustained by the evidence. This likewise applies on such a motion as this. This court, through Judge Hurt, in Mitchell v. State, 36 Tex. Cr. R. 299, 33 S. W. 368, in discussing the diligence used to procure witnesses and the presumption arising therefrom, among other things, said: “If the process had been returned several days before the case was called, and the witnesses were absent, it was the duty of appellant to have obtained attachments for said witnesses; and, when the case was called for trial, it was three or four days before the evidence closed in the case, and yet no effort is shown in the application to obtain the attendance of said witnesses. We reasonably presume that, if they lived in the county, their attendance could have been secured by any reasonable effort on the part of appellant before the close of the testimony.” And in further discussion of the same questions, on page 300 of 36 Tex. Cr. R., page 368 of 33 S. W., the court further said: “Moreover, we would remark as to the Harris county witnesses that one of them, to wit, Chancery, by whom, according to the application of appellant, more testimony of a more material character for appellant, could be elicited than by either of the other witnesses that before the beginning of the argument in the case, said witness was produced and brought into court, and no effort was made on the part of the appellant to avail himself of his testimony. If appellant failed to avail himself of the best witness he had, according to his affidavit, when it was within his power to produce them before the jury, we cannot reasonably presume that he would have used the other witnesses had they been present.” Then again, on motion for rehearing, in discussing the same questions, the court in the same case on page 307 of 36 Tex. Cr. R., page 457 of 36 S. W., said: “It will be further observed that, although the trial in this case lasted four or five days, no effort was made to procure the attendance of any of the absent witnesses after the trial began. For aught that appears, by the use of reasonable diligence, they could have been obtained in time to have testified in the case. • Counsel, however, insist that on the overruling of his motion for a continuance he was not able to do any more in the way of diligence, and, no matter if said witnesses twere accessible, and could have been produced, that upon the overruling of his motion for a continuance the case was, as to that matter, in statu quo, and this court could not look- beyond the time of the overruling of the application for a continuance as to the question of diligence.The statute places it in the discretion Of the court to overrule a motion for a continuance, and then to re-examine the question on motion for a new trial, and to refuse a new trial, unless it should appear that the absent testimony was material, and probably true. And we hold that it is perfectly competent for the court to look to the action of the appellant and his counsel after the overruling of a motion for continuance in passing upon the materiality or probable truth of the absent testimony. Suppose, in a trial of this character, counsel were informed by the court that the witness was in town, and could be had, and counsel should decline to ask for process to bring the witness before the court, or suppose that afterwards (as in the case of the witness Chancery) he should actually come into court, and appellant should decline to use him, would not the court be compelled to hold in such case that appellant was trifling with the court, that the witness would not swear what was- alleged, or else appellant did not regard the testimony as probably true? Such occurs to us to be the inevitable conclusion. And, thus considering the action of the appellant with reference to these witnesses, we would hesitate to accord a new hearing upon this ground.” Again, it was held by this court, through Judge Henderson in Blain v. State, 34 Tex. Cr. R. 452, 31 S. W. 370, that, where a number of witnesses have been summoned as to an issue and are not placed upon the stand, the appellant cannot claim a continuance on account of the absence of other • witnesses upon the same point; the court saying: “The defendant should have exhausted the testimony presented before he could claim a continuance on account of the absence of other witnesses upon the same point.” Again, Judge Willson for this court in Allison v. State, 14 Tex. App. 424, said: “All the material facts which defendant alleged he expected to prove by the witnesses (naming them) were sufficiently proved by the testimony of other witnesses who testified on the trial, and defendant was therefore not injured by the absence of those witnesses.” It is true as to the witnesses Mr. and Mrs. Grayson, defendant in his application says: “This defendant is informed that the said Pink Grayson is now suffering from a mashed and broken foot recently received by him, and that he is at this time physically unable to attend this court, and that his wife, Mrs. Grayson, is now in constant care of her said husband because of said injuries, and is unable to at this time leave her said husband in his crippled condition” — yet he does not inform the court by his application anywhere the source of his information, nor the reliability thereof. If the witness Gray-son was in such condition, it would have been easy for the appellant to have procured his affidavit to that effect or a doctor’s certificate, or affidavit to that effect, or the information from some reliable and authentic source. Merely stating that he is “informed,” etc., in view of the whole record in this case, was not sufficient, and did not require the court to either grant the continuance on that account or require him to grant a new trial on that account.' Further, in view of the fact of the allegations by the state in its contest of the motion for new trial, and the evidence heard thereon,- we must assume that the action of the court in overruling the motion for a continuance and for a new trial on that account was correct, and fully sustained by the evidence. Several of appellant’s bills complain of the action of the court in permitting the several witnesses who testified to threats made by the deceased against the appellant to kill him, and that he ought to kill him, and that he should not work the right of way of the railroad which ran through the deceased’s farm, which threats were shown to have been made by the deceased, beginning more than two years before the killing of deceased by appellant, and made continuously from time to time from that time up to within a short time of the killing, some of which threats were shown 'to have been communicated to appellant soon after they were made and from time to time for the two years before the killing; and in permitting the state, on cross-examination, to bring out from said witness and as a part of the same conversation the circumstances under which the threats were made, and the cause stated by deceased therefor at the time. The record shows that the court restricted the state in its proof on this subject to what the deceased said at the time he made the threats, and as a part of the same conversation, and would not permit the witness to go into the detail of any claimed charge that the deceased made against the appellant which occasioned the threats. As an illustration, bill No. 8 shows that after the state’s witness Avery Box, son of the deceased, had testified for the state, on cross-examination by appellant, he stated that he had heard his father, the deceased, say several times that the defendant could not work that portion of his section upon tlie railroad' which passed through iris, deceased’s, field, and tliat lie heard him make such statement the last time about one month prior to the homicide. The state was then permitted' to prove by said witness that said statements were made by the deceased about the time that defendant was accused of whipping deceased’s daughter, the then wife of defendant, which testimony was offered by the state for the purpose of showing the cause and reason of the statements — threats—made by the deceased. The appellant objected to this testimony by the state for the reason that it was immaterial and irrelevant as to why deceased had made said statements; the purposes and motives of the deceased not being a proper inquiry, but the motive of appellant being the sole subject of investigation. The court in allowing these bills substantially explained and qualified them by stating: “This and similar evidence complained of in other bills was explanatory of the nature and circumstances of the threats, and did, when made, have their relation to the homicide.” Article 791. O. C. P., is: “When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.” Again, our statute on the subject of threats indicates that proof may be made that the person making them might reasonably be expected to execute them. In other words, when a threat is proven', it is important to know whether it was a mere idle threat without cause or without supposed cause, or whether it was seriously made, and whether the party making the threat was of such a character as would probably execute it. Otherwise, the jury would not be in a position to properly weigh and consider the threat, but they could do so when the occasion for it, the cause of it, and the circumstances under which it was made were given to them. This question on both of these phases— that is, whether threats are seriously made and the circumstances under which they were made and that the balance of the conversation, when one party has proved part of it, may be drawn out by the other — has been directly passed upon by this court through Judge Davidson in Adams v. State, 47 Tex. Cr. R. 355, 84 S. W. 233. He said: “Appellant was permitted to prove that threat. The nature of the threat and the inducing cause for the threat were legitimate facts to go to the jury. Its tendency was to throw light upon the transaction and explain the reasons for the threat." Under our statute, whenever part of a conversation is introduced, the entire conversation is admissible, if it tends to explain or make clear the purport of the conversation. Deceased stated he had made the statements about Bryan’s wife, and that they were true, and that he intended to kill defendant because he had repeated his statements. It is not legitimate to take out a portion of the inducements for the threat. It should all go to the jury in order that they may be able to weigh the force of the threat, and its probable seriousness.” The court did not err in permitting the state to make this proof as complained of by appellant’s several bills of exceptions on that subject. There is nothing in appellant’s contention that the reason for the said threats made by deceased against him from time to time were unknown or undisclosed to appellant, because the record teems with evidence that the appellant, not only was informed by various persons who communicated deceased’s threats to him, but he had absolute knowledge all this,, time, and from at least in the early spring of 1908 that deceased’s hostility and animosity against him, which caused him to make the said threats against appellant, were, on account of the deceased’s claimed mistreatment by appellant of the deceased’s daughter by ■whipping her, producing an abortion upon her, and causing her to write a letter derogatory to her; she being the wife of the appellant during all this time. On this question the record shows that the court gave a proper charge, limiting all this testimony within its proper bounds. There seems to be no complaint of the charge of the court on this subject. The proof, also without contradiction, shows that the deceased had the right to be where he was at the time he was killed. He was in his own field where he was accustomed to be, and where the appellant had seen him many times during the previous two years, superintending and directing the work in his own field. The railroad and its right of way ran through the deceased’s farm. In other words, the deceased’s farm was on both sides of the railroad track and right of way. The appellant is shown to have known all this at the time and long before the killing. ’ Appellant’s next complaint is that the court erred in permitting the state, over his objections, to prove by Mrs. Box, wife of deceased, that he was 57 years old when he was killed. This was objected to by appellant on the grounds that it was immaterial and irrelevant, and that, as it was shown that defendant was only 46 years old, the testimony as to deceased’s age was calculated to lead the jury to believe that he was old, feeble, and helpless, and that appellant was young, stout, and robust, and to give greater weight to the state’s theory because of the deceased’s age, and refuse to consider the facts fairly and impartially between the appellant and the deceased because of their respective ages. The record shows that the appellant proved his age on the trial of the case, and that each party, the state and the appellant, on the trial of the case, had most, if not all, of the witnesses to testify to their respective ages; the testimony in this regard showing that they were from young boys to quite old men. This is always done on the trial of most every case, civil and criminal. In addition to this, the record shows that it was proven time and again, by both the state’s and the appellant’s witnesses, that the deceased had grown married children, who had families of their own at the time he was killed. It further shows that the appellant married a daughter of the deceased prior to 1908 — how long prior thereto is not shown — but the evidence tends to show that it was some time prior thereto, all of this without añy objection whatever by the appellant. All of this testimony would show that the deceased was rather an elderly man. There was no possible injury to accrue to the appellant by permitting the state to then prove by the wife of the deceased that deceased was 57 years old at the time he was killed. We think that the objections of the appellant to this testimony were hypercritical, or, at least, that the evidence could, at most, have but improbable and remote effect in the case, and none of it in our opinion materially against the appellant. Appellant also complains that the court erred in permitting the state to impeach the testimony of the appellant’s witness Stone, and, if not error as to the admission of this impeaching testimony, then it was error in the court not to give a charge limiting the impeaching testimony for that purpose alone. The facts about this matter are these: The appellant introduced the witness Stone, who, in substance, testified that he was constable of the precinct in Nacogdoches county embracing the town of Nacogdoches in 1910, he then filling his second consecutive term as constable; that he knew the deceased all of his life, he then being 43 years old; that some two or three weeks before the killing of Box by appellant he had a conversation with Box, the deceased, in the town of Nacogdoches, fixing the place, and in that conversation he was talking about the case against appellant for whipping his wife having been reversed by the court, and said to him there was not any use for him to try to get justice out of the courts, for he could not do it; that, if he had done what he ought to have done, he would have taken his gun and killed appellant at the start, and he would have to do it yet if he got justice, and said: “There is no use in me carrying my gun. I will have to resort to other means” — stating as a reason that there was no use in carrying his gun, that every time appellant saw him with his gun he ridjí This witness Stone further testified that he saw appellant that same evening, and told him the very identical words that deceased had said to him, detailed above. Qn cross-examination the court permitted the state to ask the said witness Stone, in substance, if it was not a fact that he had stated to R. I. Taylor and O. B. Linthicum on the day he was subpoenaed as a witness in this case by appellant at the trial at Nacogdoches in October, 1910, that he did not know what he wanted with him, as he did not know anything about the case. Appellant objected to these questions, and to requiring his witness Stone to answer them, because it was immaterial and inadmissible, was an attempt to lay a predicate to impeach the witness upon an immaterial matter or issue contradicting the witness upon a statement or expression of his opinion and conclusion, and, even though the witness had made such statement, the same was but the expression of his opinion and conclusion as to whether or not he knew of any facts material to the issues to be tried, and was an attempt to lay a predicate to impeach him by an expression of his opinion and conclusion as to whether or not he knew any material facts in the case. The court overruled these objections, and required the witness Stone to answer them. In approving the bill on that subject he qualified it “as shown by the statement of the facts.” Appellant also objected to the state asking said witness Stone on cross-examination if he did not state to Henry Milliard on the day the deceased was killed and after hearing it, and while they were on their way from Nacogdoches to where the killing occurred, that he was surprised, as he thought the matter had been entirely dropped, as he had not heard either the defendant or deceased mention the trouble for several months. Substantially the same objections were made to this as to the previous questions above stated. The court overruled the objections, and required the witness to answer. In substance he denied making the statements above imputed to him. The court thereupon permitted the state to introduce the witnesses Taylor, Rinthicum, and Milliard, who flatly contradicted the appellant’s witness Stone on that subject, to which appellant objected, as the said several witnesses testified, on substantially the same grounds as stated above. The court overruled the objections, and permitted each of the witn'ess-es to so testify. The court gave no charge to the jury limiting the effect of this impeaching testimony. The appellant requested no charge on the subject. In our opinion the questions asked appellant’s witness Stone did not call for, nor did he in answer thereto merely express, his opinion or conclusion. On the contrary, what he was asked called for a statement of fact by him, and was not his opinion or conclusion. The testimony of the state’s witnesses impeaching him was material, and clearly admissible for that purpose. We deem it unnecessary to cite the authorities to show that contradictory statements may be introduced by either party to contradict the witness of the other where material and pertinent, because such is the unquestioned rule. But see Branch’s Criminal Law of Texas, § 871. It is also the unquestioned rule that, if impeaching testimony can only be used by the jury to impeach a witness, it is not necessary to charge on the subject at all. Or, in other words, that it is only necessary for the court to charge limiting such testimony where the same could be used by the jury to establish any fact in the case other than as affecting the credibility of the impeached witness. See the cases collated in Branch’s Texas Criminal Law, § 873, p. 555, last paragraph; Harrelson v. State, 60 Tex. Cr. R. 534, 132 S. W. 787, 788. In our opinion the impeaching testimony of the witness Stone was material and pertinent, and the questions asked and answered by him were neither conclusions nor opinions, but were facts; and the testimony of the impeaching witnesses could not be used by the jury for any other purpose than the impeachment of the witness Stone. So that the court did not err in these matters complained of. Appellant also complains that the court committed reversible error in not charging the jury on manslaughter. He requested no charge on the subject. He simply complains that the court did not charge thereon, and he excepted at the time to the charge of the court because thereof. We deem it unnecessary to give a detailed statement of the evidence in this case. We will merely mention the salient points which are proper to show the issues that were raised by the evidence, and which required a proper charge thereon from the court. Some time prior to 1908, the exact time is not given, though from the record we conclude it was several years prior thereto, the appellant married the daughter of the deceased. It is not definitely stated in the record when the trouble arose between the appellant and his wife which came to the knowledge of the deceased, but it also must have been some time prior to 1908. In any event, the record shows, without controversy, that the deceased was informed, believed, and acted upon what he understood was the treatment by appellant of his wife, deceased’s daughter, in these particulars: That the appellant had whipped his wife, that he had forced her to write some letter reflecting upon herself, and that he had produced, or attempted to produce, an abortion upon her. Thereupon, as early as in the early part of the spring of 1908, more than two years before the killing, the deceased began to make threats against the appellant, which were to the effect that he ought to kill him; that he could get no redress from the courts, and that he ought to have taken the matter in his own hands to get justice; that the appellant should not work the right of way of the railroad of which he was section boss through his, deceased’s, farm. Deceased had prosecuted appellant for whipping his wife, and he was convicted, but on appeal about April, 1910, this conviction was reversed. This greatly enraged deceased, and appellant was informed shortly before the killing that deceased renewed his said threats, and that he would have to take it in his own hands; that he ought to have' killed appellant at the start, and intended to do so yet; that it was no use to carry his gun, he would have to resort to other means. Other phases of threats may have been made, but the substance of those given above are sufficient to illustrate the questions in this case. These threats were made by the deceased beginning in the early spring of 1908, and continued from time to time and repeatedly thereafter up to within a very short time of the killing. Most, if not all, of these threats were communicated by the parties to whom-they were made, or others, to the appellant soon after they were made. There is no question but that the appellant knew of them all the time from the early spring of 1908. The deceased owned his farm, which is called “his section” in the testimony. We take this to mean that probably his farm contained as much as a section of land, 640 acres. The right of way of the railroad company ran through the deceased’s section of land. The deceased’s residence was on the east side of the railroad. His farm was on both- sides, the east and the west. The railroad track, where it ran through deceased’s farm, made a cut, which, together with the earth taken out of the railroad track and thrown up on the sides, made a considerable embankment. The shot was fired by appellant while he was standing at the railroad track in this cut. As the embankment was right at the appellant from Where he shot, he could see, as he testified, almost the whole of the body of the deceased at the time he shot him, from his knees up. From a description of this embankment by various witnesses, it is evident that the deceased could not have seen the body of appellant at the time, or prior to the shooting, but that, at most, he could only have seen a portion of his head or shoulders. Prior to the time of the trouble between appellant and the deceased, the deceased had not carried with him around over his farm a shotgun. After the trouble between them, and deceased began to make said threats against appellant, deceased is shown to have generally carried his gun with him. According to the appellant’s testimony and that of some of his witnesses, the deceased, on two or three occasions, perhaps several occasions, some considerable time before the killing, had made maneuvers in going about the right of way of the railroad where the appellant was working, showing or tending to show that he was seeking to execute his threats on appellant. On some of these occasions when deceased would make these demonstrations, the appellant would get behind the embankments so as to be out of sight of the deceased. At other times he would walk up among his sectionmen so as to keep some of them between him and the deceased, and on at least one other occasion, when some visitor to him was present, he kept the visitor between him and the deceased. On all of these occasions the appellant apprehended that the deceased was seeking an opportunity to execute his threats as he believed. Notwithstanding all this, the appellant is shown, without question, to' have been the railroad section boss on the line of the railroad, which included the part of it that ran through deceased’s field, the whole of this time, and passed back and forth over it almost daily, sometimes several times a day, and is shown to have worked it and had it worked during all these two years; that on the occasion of the killing the appellant had received positive instructions from his superior to work that part of the track running through, deceased’s field which was a part of the track in appellant’s section. On the morning of the killing, the deceased had gone from his residence east of the railroad across the railroad to the west part of his farm, riding horseback in his shirt sleeves, without a gun, and it was shown beyond question that he had no weapons of any character on that occasion. When the deceased first appeared upon the scene horseback, he was seen by the appellant. According to appellant’s own statement, he rode going in one direction in about 150 yards of appellant: He is then shown to have gone some distance west beyond the railroad to where his three boys were at work plowing in his field. Where the three boys then were was out of sight of the appellant. After riding past appellant, first to one portion of his field, he rode back in the same general route and within about the same distance of the appellant, and appellant then saw him going to another part of his field west of the railroad. On this occasion deceased directed two of his boys to go over in his field near the right of way of the railroad to plow some young corn he had, and which they did. He then turned his horse in a grain patch, and walked back from the western portion of his field towards the railroad track where these two boys had just commenced plowing his young corn. We will now copy the whole of the testimony of the appellant as to what he said occurred at the time and just prior to the killing. On direct examination he testified: “And then on Monday I went to fix this track in Mr. Box’s field, on Monday morning, the first thing I went to Mr. Box’s field to fix this place. I left the section house about 7 o’clock that morning to go and fix that track. The section house was nearly two miles from that point. John McOuistian, John Mayfield, and Ed Long, and three Mexicans composed my section gang at that time. They were all men. I carried a shotgun with me that morning. I carried that gun with me to defend myself if I had to. When I got down there, there was not anybody working in Mr. Box’s field. Mr. Box was not working in sight, and I went to work, and had the track very near completed, and just before it was completed, I saw Mr. Box ride around the field, and he rode down through the field, and then went back east and went out of sight. Well, I thought Mr. Box was gone, and didn’t think anything more about him, though he had rode around about 150 yards from where 1 was at and rode around going back the other way. The section gang were there with me at work at that time, and I was there on the track, when Mr. Box passed out of my sight, X reckon he was gone something like, well, X will say 35 or 40 minutes, and the next time I saw him he was coming back behind me. I was sitting on the end of the hand car at that particular time, on the north end of the hand car. It is called east and west by our time card, and I was sitting on the west end. The track ran northwest and southeast. I was sitting on the end of the hand car about the center of the track. I was facing north. The men were scattered all along the track there. When I first discovered Mr. Box com-, ing some of the men, I couldn’t tell which one it was now, but some one there says, ‘Mr. Tom, yonder comes Mr. Box now,’ and I just looked back over my shoulder, and saw him coming. He was coming up kinder, well, not hardly behind me, but nearly behind me, coming up these rows here [indicates on plat]. When I first saw Mr. Box coming, I suppose he must have been something like 75 yards from me. As to what occurred from that time on, after I seen him, I got up and stood up there by the side of the car, and I halloed to Mr. Box. I says, ‘Mr. Box, please don’t come up here with your hand in your bosom that way,’ and I says, ‘Please stop.’ I said that because he was coming just right straight towards me with his hand in his bosom, with his right hand in his bosom. I didn’t have my gun at that time. My gun was lying right down opposite the front of the hand car on the bank, opposite the north end of the hand car where I was sitting; and Mr. Box made no stop, and the second time I says: ‘Mr. Box, for God Almighty’s sake, stop. Don’t come upon me in any shape like that; don’t come.’ And he just kept coming along at me as hard as he could, and I got up, and just reached over and got my gun, and I says, ‘Mr Box, stop, don’t come any further;’ and he never made no halt just come right on right towards me, and I told him the last time, ‘If you come any further, I will be bound to shoot you,’ and then he made his bulge to turn himself you know to pull out a gun or something. He had something black. With reference to the way his face and body were, like that man sitting there, he was coming. Of course, the wire fence was between me and him, and he was coming sorter ante-godling. across the rows. The rows were running like the fence, and, when I told him, ‘If you come any further, I will be bound to shoot you,’ and just as he did that, he fell back, you know, that way [indicates], and I shot him. His face was over his right shoulder when I shot him, and his right hand in his left bosom. I shot at that particular time. He was trying to get something out of his bosom with his right hand at that time. I shot one time. I shot because I thought he was fixing to shoot me, and I had got the word he was aiming to kill me, and was coming on me with some other means. I had seen Mr. Lawson the day before this shooting, and I had seen Mr. Stone about two weeks before that. When I shot Mr. Box, he had hold of something black with his right hand. I couldn’t tell what it was. I thought it was a pistol. I was standing right at the north end of the hand car when I shot. When I shot, I just went back and laid my gun down on the hand car, and told the boys. I says, ‘Let’s go. I am going to Nacogdoches and give up.’ I did not know at that time how bad Mr. Box was shot. The other barrel of my gun was loaded. I didn’t shoot the second time, because Mr. Box was not making any pretensions then to do anything. I stopped when I saw I had disabled him I then went to Nacogdoches, and surrendered to Mr. Spradley. At the time I fired the shot I could see Mr. Box’s body, well, I will say from his knees up. The hand car was standing on the south end of the cut. It was not up in the deep part of the cut. It was out of the cut. The first row there in the field curved into the fence I will say 10 or 12 or 8 or 10 feet north of where I was sitting. I heard young Avery Box testify about where the car was and where those rows curved into the fence. His statement with reference to those rows as to how they curved there was just about correct. If Mr. Box had continued down to where the rows curved into the fence, he would have struck the fence about opposite where I was at. He would not have missed me 10 feet. Mr. Box never changed his speed at all when I told him to stop. I didn’t have my gun, and Mr. Box could not see my gun when I told him to stop the first two times. He never saw my gun until I told him to stop the third time.” On cross-examination he testified: “I didn’t say when I first got down there that I saw Mr. Box going back in the direction of his house, when I first did 'see him, though he rode around and rode around through the field. When I first saw Mr. Box, he was on the west side of the track and on the west side of the hand car. Mr. Box come up down here some place, I don’t know where; but he rode around through here, and went on back down here and went out of sight [indicates on plat]. He went out of sight over the hill on the south side. He didn’t go out of sight towards his house that day. He went south. I didn’t see him cross the railroad and go in the direction of his house that day. I didn’t see him after he went over the hill until 1 saw him coming 'back behind me with his hand in his bosom. Mr. Box was dressed in his shirt sleeves. I don’t know whether it was a hickory shirt he had on or not. I was not looking at his shirt. He didn’t have on a vest. He just had on a shirt and a pair of pants as far as the clothes were concerned, and I saw him about 75 yards. I would say that Mr. Box must have been something like 40 yards from me at the time I shot him’ something like that, just guessing at the distance. He had walked about 35 steps coming, walking up.one of those rows. Let me show you [indicates on plat] one of those rows that points out here. You have got the rows running out over here, but they come in here [indicates], and he was coming up something about like this row here, walking up one of those rows. He had walked up one of those rows 35 steps with his hand in his bosom, and was looking right at me, and he had his hand in his bosom when I first saw him coming towards me, and I says: ‘Stop, Mr. Box; don’t come up on me with your hand in your bosom.’ I said that, when I first saw him, he had done come closer, though after I first saw him before I said that. I don’t know how many steps I let him take before I said that. I didn’t say it when I first saw him. When I looked around, he was coming, and I saw he was still approaching me. I didn’t wait but a short time after I first saw him until I told him to stop. I-Ie had walked 8 or 10 steps. I said it loud enough for you to have heard it if you had been 300 yards away. The second time I Said it the same way, I says, ‘For God Almighty’s sake, Mr. Box, stop.’ He could have heard that 300 yards away. The third time I said it the same way. I didn’t get any louder, just about the same: and he continued to come, he just continued to come and look right at me with his hand in his bosom. There was an embankment, a little dirt on the west side of that track about the point where I was. That embankment I reckon was something like 12 or 15 inches high. There was a low place in between me and him, and it was kinder filled up there with dirt, and he was a little higher than this place was down here coming over a little kinder of a knoll. I couldn’t tell you whether the embankment struck me about the knees or not. It did not strike me about the waist. I could see him from his knees up. I think from a little below his knees. As I halloed ‘Stop’ the last time, I goes right down and picks my gun up and cocked it, and, just as I halloed, I got It to my face and shot just as quick as I could get it up. I said that I saw Mr. Box drawing something black out of his shirt bosom. I could not tell you what it was he was drawing from his bosom. It was just a black object he had. I could see something black in his hand right in here (indicates in his own hand). Mr. Box was walking practically with his right side to me with his right hand in his bosom. I saw the black in his hand, and I was about 40 yards away from him, and, when I saw that, I shot him and he fell. I didn’t know how bad he was hurt. I didn’t hear it. I didn’t go to Mr. Box. None of my men, the three Mexicans nor John McCuis-tian nor John Mayfield nor Ed Long, went to him. Those two boys is all the people I saw in the field. I knew where the little boy's were at the time. One was going one way and the other the other way. There was one north and one south of Mr. Box, but as to which way they were going, I could-n’t say. There was a four-wire 'fence between me and Mr. Box. North from the place from which I shot the embankment got higher than a man’s head. It was, I guess, 30 yards before it got that high. I was not between the railroads and the wire fence. I was not standing bn the track. I was sitting down with my back towards Mr. Box. I was right at the corner of the hand car. I just stepped off, and got my gun and picked it up.” The statement of facts states this: “It is agreed in this case that from the point where Mr. Box’s body was to the wire fence was 27 feet 2 inches; from the wire fence to the edge of the cut 42 feet; from the edge of the cut to the edge of the ties 10 feet.” This shows without any doubt that the deceased was 79 feet 2 inches from the appellant at the time the appellant shot and killed him, and that the deceased had walked in the same general direction for more than 48 yards in full view of the appellant, the appellant watching him all this time, before he killed him. The uncontroverted testimony also shows that all the wounds inflicted by the appellant when he shot deceased with his double-barreled shotgun loaded with buckshot were on -the right side of deceased— none of them in front. One shot entered his neck two inches below his ear on the right side; another just above his right shoulder, and one came out on the back of his neck about where it joined the spinal column; another in front of his shoulder. Two others went through his right arm, and entered the right side of the body just a little below the nipple line. These two bullets went straight through the body from side to side, except that they did not go through the skin on the left side, stopping just under the left arm and a little higher up than the entrance, nearly on a line with the nipple on the left side. Another bullet glanced the larynx, cutting the skin; still another cut the waistband of his trousers, and just glanced. All of these bullet wounds came from the direction of the right side of the deceased, and all went in the same direction. These wounds demonstrate by the physical facts that the deceased was at the side of the appellant when he killed him, and was not facing him. The tracks of the deceased, without controversy, as well as the testimony of the appellant and others, show that the deceased was walking in an ordinary gait, and going in the same general direction. There is no indication that he stopped and turned around. In fact, the testimony of appellant himself shows that he did' not stop nor turn around, except that he said he turned his head. The testimony of the deceased’s two boys — one his son, the other his stepson- — who were plowing his corn along where the deceased was killed, shows that neither of them heard the appellant at any time call to the deceased to stop or said anything else to him in such a tone of voice as that they could hear. One of these boys was nearly as close to the appellant at the time he killed deceased as was deceased. The other was some distance, but much nearer than 300 yards. In fact, the farthest is shown by uncontradieted testimony to have been only 30 steps from the deceased when he was killed, which would place him less than 75 yards from the appellant at the time of the killing. The other was shown to have been only 40 feet from the deceased at the time he was killed, and the position where he was shown to have been would place him nearly as close, if not nearer, to the appellant than was the deceased. The testimony, taken as a whole, also shows, in effect and practically without contradiction, that the appellant from the time he first saw the deceased approaching in his direction he (appellant) was behind an embankment, the appellant being very near thereto. This embankment was such as to have prevented the deceased from seeing him. He testified that over it he could see the body of the deceased from about the knees upward. The physical facts, as well as the testimony otherwise, show that the deceased did not hear appellant call to him to stop, even if appellant so called, and had not seen, and did not know, that the appellant was anywhere near at hand. Deceased was not facing him, and was not coming directly towards him when he was killed. It will be seen by this, and we think.it is very clearly shown, that there were but two theories in the case and from the evidence that there could be but two. One of these was perfect self-defense on the part of appellant. The other was that of the state that it was murder in one of the degrees, and not self-defense, the state contending that the evidence justified the jury to believe that it was in effect an assassination by the appellant of deceased. Our manslaughter statute has two necessary requisites wliicli are required to make an unlawful killing manslaughter, to wit, “sudden passion,” and that that passion “must arise from an adequate cause.” If either of these requisites are lacking, the offense cannot be manslaughter, but must be murder in one or the other degree. In McKinney v. State, 8 Tex. App. 645, Presiding Judge White for this court said: “A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. 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. 702. 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 reflecti