Bell v. State (48 Tex. Crim. 256, 1905)

HENDERSON, Judge.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of four years, hence this appeal. .

Appellant excepted to the action of the court refusing to permit appellant on cross-examination to propound to witness Verly Johnson, the following question: “What was the deceased in the act of doing ai the time and just prior to the time defendant shot him? What was the impression made upon your mind by the action of the deceased at said time? From your position,- what did it seem to you deceased was making an effort to do?” This was objected to by the State, on the ground of its immateriality and that it called for the conclusion of the witness, and not for facts, and that the question was leading. Of course, appellant was authorized to ask a leading question on cross-examination of the witness. It occurs to us that some of the matters inquired about were material. However, the question, if it be conceded one interrogatory, appears to call for the conclusion or opinion of the witness, and as put, we believe the court was justified in excluding it. If appellant desired to ask that portion of the question which was legitimate to wit: “What was deceased in the act of doing at the time, and just prior to the time defendant shot him?” he should have propounded the question in that form, without confusing it, for as put it involves the opinion of the witness. He did not do this, but demanded an answer to the entire question as propounded. Besides, it is not disclosed- what the answer of the witness would have been: save that appellant in the bill shows that while he did not know what the answer of said witness would have been to said questions, yet he expected to elicit from the witness in answer to the question the statement that deceased immediately before the shooting by defendant, was walking upon defendant and in the act of striking defendant with something in his hand. , It may be conceded that this was all that could be expected of appellant under the circumstances in the cross-examination of a State’s witness. But this expectation was confined to only a portion of said question. As stated, before, if counsel had eliminated the objectionable portion of said questions and had asked the witness only that part of the interrogatory which was legitimate, then the action of the court would have appeared improper. But as before stated, the question was put to witness in its entirety, and it was the duty of the appellant on objection being sustained to eliminate the objectionable portion of said interrogatory. Besides, if we were permitted to recur to the statement of facts, it will be seen that this witness as well as others, answered that portion of the question, as to what deceased was doing before and at the very time he was shot.

Appellant objected to the charge of the court on manslaughter: his insistence being that there were no facts in the case that authorized a charge on manslaughter. But conceding that there was—the only adequate cause was an insult to the fiancee of appellant; and that the court, after presenting this, in effect withdrew it from the consideration of the jury. We do not believe that the evidence adduced on the trial presented the issue of manslaughter predicated on an insult to the fiancee of appellant, because the uncontroverted proof showed that while she might have been considered at the time under the protection of appellant, yet the insult was offered in appellant’s presence, and he did not resent it then. The yroof further shows that he met him repeatedly afterwards; in fact appellant’s exception to the charge grants this. It may be conceded that the charge as given on this subject was erroneous, as it was a mere abstract charge, and there was no application of the law on this subject to the facts of the case; yet, inasmuch as no charge was called for on this subject, we fail to see how it operated to appellant’s injury, especially as the court gave a charge on manslaughter on the very phase of the case presented by the evidence. And in addition, authorized the jury to look to all the antecedent facts and circumstances existing between the parties that might intensify the provocation at the time. As we view the record, the phase of manslaughter which arose from the evidence was the conduct of deceased at the very time of the homicide. He had previously insulted Avery Griffin, to whom appellant was engaged, in appellant’s presence, and they had had an altercation on that subject. Deceased had followed this up by subsequent hostile conduct towards appellant. Some time after this, when appellant retired from the house and went with a companion to an alley nearby, he passed deceased and some companions on the way. Deceased followed him into the alley, and there in the dark, some of the witnesses say he was in the attitude of making an attack on appellant, advancing towards appellant, using hostile expressions, and having in his hand something, the character of which the witnesses were unable to state. How the hostile attitude of deceased at this juncture, which just preceded the shooting, may not have justified appellant in slaying the deceased, in the opinion of the jury; yet under the circumstances it was certainly calculated to create in his mind, emotions of alarm or apprehension of danger. On this attitude of the case, the court presented the charge on manslaughter, and authorized the jury in judging of the provocation at the time, to look to all the antecedent acts and conduct between the parties preceding this. This was the phase of the case which, in our judgment, was presented by the evidence.

The improper charge on insults, which the court gave, could not injuriously affect appellant. Indeed this charge served to call attention to the antecedent insult in order to enhance the provocation given at the time. Moreover, the jury found appellant guilty of manslaughter, and they did so evidently on the theory of the case as presented by the court.

Appellant insists that the verdict of the jury is not sustained by the evidence. We have examined the record carefully in this regard, and on this subject we would observe that the evidence presented a nice question for the determination of the jury; that is, whether appellant acted in his self-defense from an attack being made or about to be made on him by deceased at the time, or whether he acted, not in self-defense, but under circumstances calculated to produce in his inind terror or alarm superinduced by the attitude of deceased as it appeared to him at the time. The jury decided that appellant did not act in his necessary self-defense, but shot deceased under circumstances which alarmed him and rendered him incapable of cool reflection. We believe the evidence on this subject is sufficient to justify the verdict, and we do not feel authorized to disturb it.

The judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, dissents.

[Motion for rehearing overruled without written opinion.—Beporter.]