Full opinion text
SCOTT, Special Judge. Appellant was indicted by the grand jury of Limestone County, Texas, charged with the murder of one B. D. Persons, by shooting him with a gun. The presiding judge of the District Court of Limestone County, on his own motion, ordered a change of venue to Ellis County, Texas, in which county the case went to trial on the 25th day of April, 1910, which resulted in a conviction of the defendant of the offense of manslaughter, and his punishment assessed was confinement in the penitentiary for a term of three years. There are numerous bills of exception in the record which we will take up and dispose of in the order in which they appear in the record. Bill of exceptions Mo. 2 complains that the court permitted the State’s witness, Mrs. J. G. Stovall, while upon the stand, to testify that the shooting which resulted in the death of Persons occurred in front of her house, and that she was in the rear of her house, and after hearing the report of the gun she immediately went to the front door of her house, where she saw the deceased and the defendant; the defendant was unbreecliing his gun, and the witness asked the defendant why he did it, to which the defendant made no response. The State was then permitted by the court to ask the witness what she said to the defendant, to which question the defendant objected, stating his reasons. The court overruled the objection, and the witness was permitted to state that she said to the defendant, “My God, Bob, why did you do that? Don’t shoot again.” This bill is approved without any explanation whatever, and as there is no testimony in the record which shows that the defendant attempted to fire the second time at the deceased, this testimony was inadmissible for any purpose, it appearing from the bill and from the record that the statement of the witness to the defendant occurred after the shooting was over, and therefore formed no part of the transaction. Bill of exceptions Mo. 3 complains that, “While the defendant’s witness, Walter Wright, was upon the stand, and had given material testimony for the defendant, the court permitted the State to elicit from said witness that at one time he had complaint filed against him in the County Court of Limestone County, Texas, charging him with making an assault upon a minister of the gospel, and after the witness had been compelled by the court to so testify, the defendant then offered to prove by way of explanation that the minister upon whom he was charged with having made an assault had, upon trial, been found guilty of making an unprovoked assault upon him in the County Court of Limestone County, and a fine of $250 assessed against him by the jury.” The court, in approving this bill of exceptions, states that the entire evidence referred to above was subseqently withdrawn from the jury, with instructions not to consider the same for any purpose whatsoever. We think the admission of the testimony to the effect that the witness had been charged with making an assault upon another at some time in the past, was inadmissible for any purpose. It is not admissible for the purpose of impeaching the witness, because it did not involve moral turpitude; it did not show when the assault, if any, ever occurred, and in order for testimony of this character to be admissible by way of impeachment it must relate in some way to the transaction under investigation, or must involve upon the part of the witness moral turpitude. Hence we hold that the court erred in admitting this testimony. And certainly, if it was admissible for any purpose. the defendant had the right, and it was justice to the witness, to have him explain the circumstances under which the assault was made, if any, and the refusal of the court to permit the defendant to show by this witness, as it is alleged he could have done, that instead of the witness being guilty of assault upon the minister of the gospel, the minister had made an unprovoked assault upon the witness, and in a trial in the County Court of Limestone County for said assault by said minister upon the witness, the minister had been found, guilty, and a fine of $250 assessed against him. We hold that no part of this testimony • was admissible for any purpose whatever, and it could only have been introduced for one purpose, and that to prejudice the minds óf the jury against the witness, and thereby affect his credibility and the weight of his testimony, thus depriving the defendant of the full force of the witness’ testimony, the bill of exceptions'showing that he had given material testimony for the defendant. Hor do we think that the error of the court was in any manner cured by the fact that it was afterwards withdrawn. The effort upon the part of the court to withdraw from the consideration of the jury testimony which was erroneously admitted will be discussed in another part of this opinion. Bill of exceptions Ho. 5 complains that, “While the defendant’s witness, Walter Wright, was upon the stand, and after he had given material testimony for the defendant on cross-examination, the State’s counsel was permitted, over the objection of the defendant, to ask the defendant the following question: “Is it not true that after he was killed, either at your home or in Prairie Hill, you told Tom Moody that at the time Persons was killed there were three or four men ready to kill him, and going to kill him,” To which the witness answered: “I don’t know whether I did to Moody or not. I know I did not make the exact statement that you made.” This evidence was immaterial, and should not have been allowed to go to the jury. 'It is wholly immaterial whether this witness told Tom Moody or any other person that there were several men who were ready to kill said Persons or not, unless the State had undertaken to go further and show that this defendant was one of the men referred to by the witness, .and hence we hold that the question was improper, and that the answer was immaterial. Bill of exceptions Ho. 6 complains that, “While the defendant’s witness, Wes Alston, was on the stand, and after he had given material testimony for the defendant, and after the other testimony in the case had raised the issue of self-defense and an issue as to whether deceased or defendant had made the first hostile demonstration at the time of the homicide, the court erred in excluding the testimony of the said witness as follows: In substance, that he, witness, told one Busby to tell Bob Kemper (defendant) that he, witness, had heard Persons make the threat that he (Persons) intended to kill him (defendant), and for him (defendant) to be careful to keep his eyes on the old man, and not to do anything until he was forced to do it.” We do not think the action of the court in excluding this testimony was error. It does not appear from the bill of exceptions that Busby was dead, or beyond the jurisdiction of the court, nor that Busby had denied the fact that he had ever communicated such a threat to the defendant, and unless one of these conditions existed, if the defendant desired to show that the threat had been communicated to him, he should have undertaken to establish that fact by the witness Busby, because it was immaterial what the witness Wes Alston had told Busby. The material inquiry was, What was in fact told to the defendant? Therefore, we hold that this evidence was not admissible, and the court did not commit error in excluding the same. Bill of exceptions Ho. 7 complains that, “While the defendant’s witness, Wes Alston, was upon the stand, and after the other testimony in the case had raised the issue of self-defense, and the issue as to whether the deceased or defendant had made the first hostile demonstration 'at the time of the homicide, and after said witness had testified upon direct examination that he heard the deceased, Pen Persons, a short time before the homicide, in the town of Mart, make a threat to take the life of the defendant, the court permitted the State to cross-examine said witness, and to propound the following question to said witness: ‘Is it not true that in that same conversation Mr. Persons told you he had heard that Bob Ivemper was talking about him ?’ ” ° The witness answered in the affirmative. This evidence, as presented by the bill, was wholly immaterial to the issue before the court and jury, and should have been excluded. If the State had undertaken to show by this witness that he had communicated to the defendant, in connection with the threat, the statement involved in the question propounded, namely, that the deceased, in the same connection in which he is alleged to have made the threat, said that he had heard that the defendant had threatened to kill him, or some threat concerning him, then the question would have been proper and the answer would have been pertinent. But unless the defendant had been informed of the conditions under which the threat was made (if it was in fact made), it would be wholly immaterial to the issue presented what the deceased said to some, other person in connection with said threat. It would not change in any manner the rights of the accused, and therefore would be immaterial, and would have a tendency to prejudice before the jury the rights of the defendant. Bills of exception Hos. 8 and 9 complain that, “While the defendant’s witness, Wes Alston, was upon the stand, the State was permitted to prove by said witness that his jaw had been shot off by a negro; that he had been in two or three shooting scrapes; that he had killed one man and shot another one, and the State was permitted to ask the witness if he had killed his man, and compelled the witness to answer the question, and he answered that he had killed a man, whereupon the defendant offered to prove by said witness upon re-direct examination that the negro who shot the witness’-jaw was charged with assault to commit rape on a white woman, and the witness was an officer, and was trying to arrest said negro at the time of said offense; that the other man that he shot had knocked his father in the head with an iron rod and was seeking to again strike his father, who was down, with his skull crushed, and he fired solely to keep the man from killing his father, and the defendant offered to prove by the same witness, in connection with the question propounded by the State, wherein he was asked if he had killed his man, and his reply thereto, that he had killed a man, by way of explanation thereof, and in order that the witness might appear in a proper light before the court and jury; that the witness had killed a man named Gresham; that at the time of the killing the witness was city marshal of the town of Thornton, and that Gresham had been misbehaving and getting drunk, and he had talked to Gresham about it, and Gresham had threatened to kill said witness, and that he was trying to avoid the presence of Gresham, and that his meeting up with him was purely accidental; that he attempted to leave him, and was shot by deceased twice in the back, and the witness then turned, drew his pistol, fired and killed Gresham.” This character of questions as indicated by these bills of exception were highly improper. It is admissible, of course, for defendant or the State to show that the witness has been charged with murder, if such be a fact, but that must be done in a legitimate manner, and it would be a monstrous doctrine to hold that a witness upon the stand, in the presence of the jury who are not familiar with the character or disposition of the witness, will be compelled to answer a question that he had killed a man, and at the same time deny him the right to explain to the jury the circumstances under which he did the killing. The laws of our State recognize the fact that a man may kill another man and commit no offense whatever. He may be entirely justified in the act. It would be a monstrous doctrine to hold that a man may be held up before a jury as a murderer because of the fact that he has been unfortunate to have to kill a man where he was justified, and at the same time be denied the right to explain to the jury the circumstances under which he did it, and this court will never give its approval to any such doctrine.' All persons in the witness chair are entitled to justice and fair dealing, to say nothing of the effect that such a proceeding may have upon the rights, the life and the liberty of a citizen who is on trial, and who has denied that he has committed any wrong. The court, in approving these bills, “distinctly and emphatically withdrew from the consideration of the jury' all the testimony as to the witness, Alston, killing anybody,” but it appears in bill of exceptions Ho. 9 that this action upon the part of the court in excluding this testimony and withdrawing it from the jury did not take place until several of the arguments had been made to the jury and the testimony complained of argued by the attorneys to the jury. The court further explains bill of exceptions Ho, 9 by stating that, as to witness Alston, the record shows that he testified: “I have killed one man and shot another one pretty badly. I have been in two or three shooting scrapes. I did not shoot the man who shot my lower jaw through. I did not shoot at this one. I gave them the first shots, and I told everybody who was running around over the whole country saying they were going to kill me I would give them the first shot, and I think that is as fair as a man could do. The fact that I killed a man and the fact that Bob killed one does not make a spirit of fellow-feeling between Bob and I—not a bit on earth. In' fact, I am opposed to killing, and I would just as soon be killed as to kill a man. “I was an officer at the time the negro shot me through the jaw. I was not indicted for any offense growing out of these shooting scrapes I have been in. I was an officer at the time each of them occurred.” According to this record, here is a man who was an officer of the law, whose duty it is to apprehend men charged with violating the law, and in the course of the discharge of his duty it became necessary for him, in his own self-protection, to shoot a man, and the court denies him the right to show that the man whom he shot had threatened his life, and had shot him twice in the back while he was going away from him, and permitted the jury to consider the fact that he liad killed a man, and was thereby charged by the prosecuting attorney with murder, when the facts, as proposed to be shown, disclose that he was justified in his action. Again, the State charged him with killing another man, and made him confess it before the court, and made him confess it before the jury, and refused to let him explain that the reason he did it was, that the man he killed had knocked his father in the head with an iron rod, crushing his skull, and was about to strike his father again, and that in order to save his father’s life he shot and killed the man, who was thus murdering his father. If these facts were true, he not only was not guilty of violating the law, but had done an honorable deed, one which all honorable men commend and respect him for doing. Again, the State seeks to make profert of this witness by showing to the jury, and calling attention to the fact, that he had his jaw shot off by a negro, well knowing the prejudice that existed among the people of this country where a white man “mixes up in a row” with a negro, and refused to permit the man to explain that, at the time, he was an officer, unarmed; a negro was charged with a heinous crime, which, if true, merited the death penalty, and which is invariably inflicted upon negroes committing such offenses in Texas; and in the discharge of his duty as officer and his duty as a common citizen, he was attempting to apprehend the negro thus charged with the offense, when his jaw was shot off by the negro. Will any man say that such an act upon this man under such circumstances was an offense, was wrong, was discreditable nr dishonorable? Surely not. It is an act to he commended if these facts are true, and certainly, if the witness was willing to swear to these facts, the defendant had a right, and his attorneys had the lawful right to have the jury hear the facts and pass upon them. We can not conceive any principle of law upon which the court based his ruling in this respect, nor can we conceive of any principle- of law which the prosecuting attorney could possibly have had in view when he protested to the court against the introduction of this testimony by the defendant. It will not do to say that the testimony admitted over the objection of the defendant referred to in these bills of exception was afterwards by the court excluded, and the jury instructed not to consider the same, because it is clear to our minds that the effect of such a ruling as complained of here was prejudicial to the rights of the defendant, and could have no other effect than to prejudice the minds of the jury against the witness by whom the defendant had proven, according to the bill of exceptions, “material testimony in his behalf,” and the court can never withdraw prejudicial and harmful testimony from the jury so as to relieve their minds of the effect which said testimony has made, and especially would this likely be true when this testimony had been before the jury for several days, and had been argued fully in several speeches. The damaging character of this testimony, without the explanation as offered, is too apparent for us to hold that it did not have its weight with the jury in some respect, and this court has recently held that the court can not, after having admitted testimony prejudicial to the defendant, withdraw the same and thereby cure the harm and injury which might have resulted to defendant. (See Clements v. State, 61 Texas Crim. Rep., 161.) And we here now lay down the rule to be that, where testimony has been admitted before the jury which is calculated to injure or prejudice the rights of the defendant, or which is calculated to seriously affect the credibility of the witness for the defendant, or to affect the weight of his testimony, that the court can not thereafter withdraw said testimony from the consideration of the jury, and thereby cure the harm or the error committed by the introduction thereof. The prosecuting officers of the State must understand, and the trial judges who make these rulings must understand, that this court will not hold such errors to be harmless, because we believe them to be harmful, and we recognize as correct the principle which was announced by one of the prosecuting officers in this case, according to the record, when, in referring to the withdrawing of testimony that had been erroneously admitted, he said: “On the principle that that which is once in can not be withdrawn.” For a correct rule governing the proposition presented under this bill of exceptions, we cite Clements v. State, 61 Texas Crim. Rep., 161, 134 S. W. Rep., 728, and authorities there cited; also Barth v. State, 46 S. W. Rep., 228, and authorities there cited. Bill of exceptions Ho. 10 complains that the court refused to permit the defendant to prove by the witness J. G. Heath “that the deceased made certain statements with reference to the defendant at a picnic a few days before the homicide.” And also complains of the action of the court “towards counsel for the defendant when counsel for the defendant insisted upon explaining to the court the reasons why he thought the evidence was admissible.” We do not think the testimony offered by this witness was admissible, as it contained no threat either to take the life or to do personal violence to the accused. There was no question between the State and the defendant as to the state of feeling between the defendant and the deceased. The evidence showed conclusively that there was ill-feeling between the two. Neither do we hold that the action of the court towards counsel complained of in this bill is error. And inasmuch as it is not likely to occur again in another trial, it will not be necessary for us to dwell" at any further length upon the matter. We hold that the exceptions in this bill are not well taken. Bill of exceptions No. 12 complains of the action of the court in permitting the State to show over the objection of the defendant that defendant’s witness, Frank Smith, had spent 120 days on the county farm and in jail. We do not think there was any error in the ruling of the court in this respect. If the witness had in fact served a term of imprisonment in the county jail the jury had a right to know it, and the defendant would have had a right, if he had so desired, to explain to the court and jury the circumstances under which he was required to serve the sentence, either upon the county road or in the county jail. There was no error in the ruling of the court in this respect. Bill of exceptions No. 13 complains of the “action of the private prosecutor in this: That, while the defendant’s witness, Frank Smith, was upon the stand, and after the State’s counsel had developed the fact by the witness that the deceased had been in his lifetime friendly to the witness, and after the witness had testified for the defendant to material testimony in behalf of the defendant, same being threats alleged to have been made by the deceased to the witness, private counsel for the prosecution, in the presence and hearing of the court and jury, remarked: ‘And this is the favor he gets in return’ (meaning the deceased). Counsel for the defendant immediately objected to this remark of the private prosecutor on the ground that it was an improper attack upon the witness, and was highly prejudicial to the right of defendant, and was calculated to cause the jury to disregard and discredit the testimony of said witness, and the court was requested by defendant’s counsel to instruct the jury not to consider this remark made by said prosecutor, which objections and which request made by the defendant’s counsel were by the court overruled, and said remark allowed to stand without criticism or condemnation before the jury.” We think this objection well taken. Every person who is charged with' violating the laws of this State is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt. Penal Code, article 11. And this law exists for the benefit of a person while he is a witness as well as the accused person. The statute of this State further provided that the court, in trying the case, shall never, under any circumstances, express his opinion, in the presence and hearing of the jury, as to the weight of testimony or credibility of a witness (article 767, Code Criminal Procedure), and while the statute does not prescribe this rule as to the prosecuting officer, it stands to reason that a prosecuting officer has no right to criticise a witness, nor to. condemn him by expressing his opinion during the progress of the ease at any other time or in any other manner than in his argument to the jury, and in our opinion the court should have withdrawn said remark from the jury and instructed them not-to consider the same, and if the prosecuting officer did not know that he ought not to have expressed such an opinion under such circumstances, then the court should have told him what his duties were in the premises. There is a proper time in the trial of every case when the prosecuting attorney may give the jury the benefit of his views concerning the testimony, as well as the character of the witness, and when that time arrives the prosecuting officer may be exhaustive in this respect if he so desires, but he should not be permitted to do so at any other stage of the trial than that authorized by law. Bill' of exceptions No. 14 complains of the action of the court in permitting counsel for the State to ask the defendant’s witness, while upon the stand, a number of questions as set out in said bill of exceptions which will probably not occur upon another trial of the case, and therefore we do not discuss the action of the court in this respect further. Bill of exceptions No. 15 complains of the ruling of the court in the respect that “while the defendant’s witness, J. R. linger, was upon the stand, and had testified to a statement claimed to have been made by the deceased to the witness, the State objected to the testimony, and the court sustained the objection thereto, and stated in the presence and hearing of the jury that there was no threat in such statement, and it was inadmissible for any purpose, and instructed the jury not to consider the testimony of the witness, whereupon the State’s counsel stated in the presence of the .jury that inasmuch as the jury had heard the testimony, the State would withdraw its objection, and the court told the jury that the testimony would be admitted.” This testimony was either admissible or not admissible, and the court should not have allowed the State’s counsel to object to the testimony until the court had expressed the opinion to the jury that it was of no value, and should not be considered by them, and then announce to the court that he would withdraw his objections, and let the jury have the benefit of the statement. The court should have adhered to his original ruling, and declared the evidence inadmissible for any purpose, but we hold that the evidence was inadmissible, and the court erred in permitting the evidence'to go to the jury at the instance of the State after he had declared to the jury that it was inadmissible for any purpose, and had instructed them not to consider the same. We do not wish to be understood, however, as holding that this error would be sufficient to reverse the case. Bill of exceptions No. 16 complains of the action of the court in making certain rulings set out therein, and in his treatment of the counsel for the defendant. This situation would not probably occur on another trial of the case, and, therefore, it is unnecessary for us to discuss the question here presented further. Bill of exceptions No. 17 complains of the “action of the court in sustaining the objection by the State to the defendant’s proving by the witness Dr. Holton that a few minutes before the homicide the defendant left Dr. Holton’s office in the town of Prairie Hill in his buggy, "and that, at that time the defendant told the doctor that he was going to Kirk, the other evidence having shown that the homicide, occurred in the edge of the town of Prairie Hill, and on the road to Kirk.” This evidence was offered by way of explanation as to why the defendant happened to be at the place where the homicide occurred at the time of the occurrence. Said bill further complains that after the court had sustained the objection of the State to this testimony, State’s counsel, after cross-examining the witness, stated to the court in the presence of the jury, that they would withdraw their objection to the introduction of the testimony referred to in this bill. The court announced that the record would show that said exception was withdrawn. This testimony was admissible as contended for by the defendant, and the court should not have excluded the same, and ordinarily when the court, after having excluded testimony for the defendant, subsequently admits the same, there would be no error in the action of the court, but it appears from this record that the court changed his ruling so many times upon so many different questions, and in each instance after the State had gotten the full benefit of everything that they desired to accomplish by reason of the ruling of the court that we can not say that the action of the court in this respect cured the error in excluding the testimony in the first instance. It should have gone to the jury free from any ruling of the court to the effect that the same was not legal testimony. Bill of exceptions Ho. 18 complains of the action of the court in regard to matters that will probably not occur upon another trial, and will not be discussed further. Bill of exceptions Ho. 19 complains of the action of the court in permitting the State’s counsel to ask Dr. Holton if he had not testified on application for habeas corpus to facts that were beneficial to the defendant. We hold that there was no error in the action of the court in this respect. Bill of exceptions Ho. 20 clearly presents the action of the court and counsel for the State in conducting the trial of the case in such a way and in admitting testimony that was afterwards announced by them to be error, which error the court attempted to cure by withdrawing the same from the consideration of the jury in instructing them not to consider the same for any purpose whatsoever that we deem it proper to set out this bill of exceptions in full: “State of Texas v. R. W. Kemper. No. 15866 In the District Court of Ellis County, Texas, February Term, A. D. 1910. “Be it remembered that upon the trial of the above entitled and numbered cause, while the defendant’s witness, Dr. Holton, was on the stand, after he had testified to matters highly material to the defendant, he being an eyewitness to the homicide, and having among other things testified to facts which if believed to be true would entitle the defendant to be acquitted, and after said witness had testified on cross-examination in effect that his only object was to tell the truth, the State was permitted, over the defendant’s objection, to ask the following questions and elicit the following answers: ‘Q. Aren’t you actuated by another motive also? A. I am unaware of it if I am. Q. Well, you have been unfortunate enough to kill your man, haven’t you? A. I certainly have; yes, sir. Q. You were ready to draw your gun on old man Persons, and in two weeks before the killing you drew your gun on a third man? A. Eo, sir; I deny any such statement. Q. You are known to be handy with your gun, aren’t you? A. I never used but one in shooting at a person'in my life. I used that one fairly handy when I had it to do. That was a shotgun, too, Hr. Thomas; it wasn’t a pistol. Q. The same sort of gun that Kemper had when he killed his man? A. Yes, sir.’ “To which said quéstions and answers the defendant then and there objected upon the ground that it was an improper attack upon the witness for the purpose of discrediting his testimony before the jury, highly prejudicial and not confined to the witness being legally charged with any offense of the grade of felony, or involving moral turpitude, which said objections were by the court overruled, and said evidence admitted, as shown, and to which defendant then and there, for the' reasons stated, excepted. “It is here recited as a fact that after the testimony had been closed and three of the four speeches made for the State had been delivered to the jury, and during the progress of the third speech for the defendant, and after several days had elapsed, and after all of the counsel who had addressed the jury up to the time stated had commented on the character of this witness, State’s counsel, in substance contending that the evidence showed they naturally sympathized with the defendant and would, therefore, do anything to help him out, and defendant’s counsel answering this argument as best they could, the court finally at the time stated, and while said third counsel for defense was addressing the jury, stopped counsel and instructed the jury that the court had determined that this testimony as to Dr. Holton and others of defendant’s witnesses having been in shooting scrapes or having killed other persons would not and must not be considered by them for any purpose, nor would they allow it in any way to affect the consideration of this case nor their verdict, and later on during the progress of the argument on one or two other occasions instructed the jury that they must not consider this testimony nor the comments and arguments of counsel thereon. “To the exclusion of which said testimony, as above stated, and the conduct and actions of the court, as set out, the defendant in open court excepted, for the reasons stated, and here now tenders this his bill of exceptions, as above set out, and asks that the same be allowed, approved, ordered filed and made a part of the record in this case, as defendant’s bill of exceptions Ho. 20, which is accordingly done. Will Hancock, of counsel for defendant. “This bill complaining of the court’s permitting the State to show that the witness Holton had been unfortunate enough to kill a man, is qualified by the following explanation: On redirect examination by his counsel, he testified that his father had been shot down by two men when he, Holton, who knew nothing of the beginning of the difficulty, arrived upon the scene and said two men were beginning their assault and threatening further violence to his father when said witness was handed a gun by his sister and shot and killed one of said men, and that he was never indicted therefor. July 11, 1910. W. C. Wear, Judge.” We hold that the action of the court in permitting the prosecution to proceed in the manner pointed out in this bill of exceptions was highly prejudicial to the rights of the accused and that the same is not supported by any rule of practice known to our jurisprudence. This bill and similar bills of exception which the court has certified to be correct shows a reckless disregard of the rights of the accused by the State’s prosecuting officer in this ease, although the court at the winding up of a long and tedious trial undertook to withdraw from the consideration of the jury the admission of certain testimony which occurred to his mind as being damaging to the defendant, which action of the court was not objected to by the State’s counsel. We presume that the State’s counsel did not object for the reason that they relied upon the principle announced by the private prosecutor, as shown by the record, in discussing the question involved in this exception, to wit: the admission of testimony and thé withdrawal of the same thereafter and the effect of such withdrawal, the record shows the following: While the court was considering the advisability of certain testimony, and after he had instructed the jury not to consider the same, the counsel for the State, in addressing the court in regard to its action in excluding the testimony to the effect that it was useless to withdraw the same, said, “On the principle that that which is once in can not be withdrawn.” If this principle had been recognized and observed at the beginning of this trial and throughout the same, it is apparent that many of the errors complained of in this record would not have been committed, and the able prosecuting counsel who recognized this rule so clearly, should not have produced the occasion which caused the court to commit the errors complained of, nor bring about a condition whereby it became necessary for the court to undertake to do the thing which the prosecuting officer recognized in the declaration of this principle the court was powerless to do. And the rule in reference to the action of the court in this respect is so well settled in the light of decisions heretofore pointed out in this opinion that it is not necessary for us to again repeat it, but we call attention of the trial courts of this State to this rule, and urge them to observe the rule, for it is useless for the State to proceed in the trial'of cases in total disregard of the well recognized rulings of the court upon questions that are so clearly settled and thereby bring about the necessity of a reversal of a cause, the trial of which has involved the cost to the State of large sums of money, and the expenditure of much time and much labor on the part of all who have participated in the trial. In this connection we think it proper to quote the language of the Assistant Attorney-General in his brief wherein he says: “So long as the State commits such errors as this, she does so at her own peril for certain it is that this court created as it was for the sole purpose of hearing the appeals of those who believe they have not had a fair legal trial by the courts, will not tolerate such violation of the rules of evidence as is shown in this instance.” X Bill of exceptions No. 21 presents no error. Bill of exceptions No. 22 complains of the action of the court in commenting upon such testimony referred to therein. We think the complaint as to the comment of the court is not without merit. The statute of the State requires the court to rule upon the admissibility of testimony, but prohibits him from expressing any opinion as to the weight which should be given to such testimony, and this bill shows that the court clearly indicated to the jury that this testimony was of no value. We think the court should have adhered to his ruling when he excluded the testimony on the ground that the same was inadmissible and should not have permitted the same to have gone to the jury at all, but if he did permit it to go to the jury he should have permitted it to go without any comment from him. It is the duty of the court to see that the testimony which is introduced in evidence is legal testimony, and competent testimony, and it is not necessary for either the State or the defendant to object to the testimony in order that the court may exclude it. He may do so of his own motion, if it is clear that the testimony is not admissible for any reason. This error, however, is not of sufficient importance to require a reversal of the case. Bill of exceptions No. 23 presents in our opinion no error. This evidence was admissible, the bill showing that the other evidence in the case disclosed that the defendant ICemper at the time of this conversation was discussing the deceased. Bill of exceptions No. 34 complains of the “action of the court in permitting the State’s counsel to ask defendant while he was upon the stand if the defendant had not been indicted for illegally taking money from negroes.” The court should not have permitted counsel to lug into this case any evidence pertaining to the charge of illegally obtaining money from other persons on the part of the defendant; even if it was true, it would not be a material inquiry in determining the issues between the State and defendant upon a charge of murder, and it could only serve the purpose of prejudicing the jury against the defendant, and while it was proper for the State to have shown that Persons was the man, or one of the men, who was endeavoring to have the defendant indicted, it having also appeared from the record that these people were the ones that the defendant had complained of, yet the State should be required to separate that which is legal from that which is illegal, and use that which is legal and leave off that) which is illegal. Bill of exceptions No. 35 complains of the “action of the court in permitting the State’s counsel to ask the defendant while he was upon the stand as to what the deceased witness had testified to at the habeas corpus trial, and if he, defendant, did not wait till after said witness was dead to deny a statement, which the State claimed had been testified to by the deceased witness in a habeas corpus trial. This was error. It was immaterial upon the trial of this case what the witness Stovall testified to before the habeas corpus trial. That is, except for the purpose of reproducing to the jury the testimony of such deceased witness, and reproduction can not be had in that way. And if after the State had introduced the testimony of such witness and the defendant had testified to facts denying the truth of the statement of said witness the State of course could show when the defendant first denied these statements, but it would not be proper for him to show that fact in the manner undertaken in this instance as shown by this bill of exceptions, and in view of our holding in this opinion as to the introduction of the testimony of the witness Stovall, who- was deceased at the time of this trial, the error complained of herein will not occur upon another trial of the case and we will not discuss the same further. Bill of exceptions No. 36 complains of the action of the court in permitting the State’s counsel, over the objection of the defendant, to ask the defendant’s witness, Cas Lansford, while upon the stand, if he had not been previous to that time indicted for assaults upon other persons, and if he was not a saloon keeper, and if he had not been indicted for violating the Sunday law. The court, explains the bill by stating that “all of this testimony was withdrawn from the consideration of the jury, and the jury was instructed not to consider the same for any purpose.” We think that that portion of the hill which shows that counsel was permitted to ask the witness if, as a saloon keeper, he had not violated the Sunday law, was 'improper, and should have not been permitted. However, the error is not such as would of itself reverse the case, nor would it be sufficient cause to set aside the verdict of the jury. What we have said heretofore with reference to this character of testimony, and the effort of the court to withdraw it from the jury instructing them not to consider the same applies with equal force to this part of this bill. Bill of exceptions No. 27 complains of the “action of the court in permitting the State’s counsel, upon cross-examination to ask the witness, Wiley Sims, if he had not been indicted for the offense of sand packing cotton, and the witness answered that he had been indicted for swindling in selling sand packed cotton.” We do not think there was any error in the admission of this testimony. The defendant and the witness had the right, if they so desired, to explain to the jury the circumstances attending this charge against the witness. Bill of exceptions No. 29 complains of the “action of the court in permitting the State to show by the witness, Tom Moody, certain statements which the defendant is alleged to have made to the witness on the occasion mentioned in the bill of exceptions, the objection being that no proper predicate had been laid for this testimony.” We do not agree to this contention and think the predicate was properly shown, but the witness should have been asked the direct question, and in the exact language of the predicate. The error committed was in permitting the witness to state the conversation between himself and the defendant, whereas it should have been confined in substance to the language of the predicate which the defendant had denied having used. Bill of exceptions No. 31 complains of the language used by the private prosecutor in his closing speech to the jury, which language is set out in bill of exceptions. The court, however, in approving this bill says that the same was in answer to argument which had previously been made to the jury by the counsel for the defense. This bill of exceptions as explained by the court presents no error in our opinion. Bill of exceptions No. 32 complains of the action of the private prosecutor in his closing argument to the jury in using this language: “I now invite them (meaning counsel for the defendant) to get Mrs. Persons to take this stand, and let them ask her the question, where her son’s pistol was when he lost his life.” It appears from-the record that Mrs. Persons, the mother of the deceased, was eighty years of age, and was carried to the courthouse and placed upon the witness stand in this case by the State. She testified to the fact that she was eighty years of age, and was the mother of the deceased; that she was living in his house at the time of his death and had been living with him about three years; that she went there before his wife’s death, and was there whén she died, and remained there until it [he] was taken from her; that she knew positively that she never made any special pockets in the inside of his coat, and knew that his wife never made any; that she knew that there was never any such a pocket made to his coat.” The court states in his explanation of this bill “that defendant’s counsel declined to cross-examine Mrs. Persons; yet in argument criticised counsel for State for not questioning her as to whereabouts of her son’s pistol, and then argues that Mrs. Persons’ testimony as to pistol would have shown Persons armed on day of killing. The challenge was in direct reply to defendant’s argument.” The bill of exceptions states that the private prosecutor after all the argument had been made in behalf of defendant, and in his closing speech used this challenge in a “tragic and actor-like manner,” and in a “sensational and daring-like” manner. If it was permissible for the counsel for the prosecution to have issued this challenge, it would have been permissible for him to assume any attitude he chose. However, we hold it to be improper for a prosecuting officer in the closing argument to challenge the defendant’s counsel to bring a State’s witness upon the stand for the purpose of developing evidence which both parties had an opportunity to develop before, and which both of them declined to develop. But while holding this, we also hold that the defendant’s counsel can not say in his argument to the jury that the testimony of this witness would have shown the deceased to have been armed at the time he was killed, and then deny to the State the right to let the witness testify upon the question. Such a rule would manifestly be unfair to the State and would give the defendant an undue advantage. Therefore, we hold that in this particular instance the court did not err in refusing to exclude from the jury the arguments of the prosecuting officer. Bill of exceptions No. 33 complains of the remarks of the private counsel for prosecution in his closing argument to the jury. Inasmuch as this case has to be reversed, and that the matters complained of in this bill will probably not occur again we deem it unnecessary to discuss this bill further. Bill of exceptions No. 34 complains of the “action of the court in not allowing the defendant to prove, after the State had shown by the witness that the reputation of the deceased as a peaceable and law-abiding citizen was good, that the same witness had heard in the community in which the deceased lived that the deceased was accused of burning a barn which was the property of one Ed Summers. The court of his own motion declined to permit the defendant to show this fact.” Article 713 of the Penal Code provides that when a defendant seeks to justify the killing of another on account of threats made against him by the deceased, he may show the general reputation of the deceased as to whether or not he is a man who would likely carry into execution a threat made, but nothing further in the way of reputation can be produced. Therefore, we hold that the court committed no error as shown by this bill. Bill of exceptions Ho. 36 shows “that after the witness, Tyne Smith, a material witness for the defendant, had testified to the effect that the deceased had told him just a few days before the killing that if the defendant was elected it would do him no good, that he, Persons, would kill the defendant before he should hold the office for which he was running,” the court permitted counsel for the State to introduce certain portions of this witness’ testimony on the" habeas corpus trial relative to this subject, in which testimony he had detailed the conversation referred to by him with the deceased, but did not state that the deceased had told him that before the defendant should hold the office he, deceased, would kill him. This testimony was offered over the objection of the defendant, after which the defendant offered in evidence the entire testimony of said witness at said habeas corpus trial. The witness further on in his testimony on discussing the same conversation, when he was pressed to use the same language which the deceased used to the witness about the defendant, the witness testified that, “As near as I can remember (meaning deceased) he said he (meaning defendant) was the damdest dog in that country, and before he should have that office he would kill him; that the deceased had said that one Dr. Holton had gotten the drop on him in a row, but that he would not get it any more, and he (meaning deceased) said that the first time that he got the drop on ICemper he was going to kill him; that this witness imparted this conversation to defendant on the 8th day of July, which was the day previous to the homicide.” It was error in the court, after it had permitted the State’s counsel to introduce the testimony of the witness, Tyne Smith, upon the habeas corpus trial for the purpose of impeaching said witness, and this was the only purpose for which such testimony could have been admissible, to then refuse to permit the defendant to introduce to the jury the remaining portion of his testimony relating to the same subject matter, and which explained, or pretended to explain, the testimony which had been offered by the State, and the action of the court in this respect was prejudicial to the defendant, and constitutes a reversible error. The rule is well settled that when a portion of a statement of a witness is used by either party to impeach the witness or to contradict him in any manner, it is proper for the other party to use the testimony of the witness delivered at the same time and relating to the same subject matter which explains or pretends to explain to the jury fully the testimony of the witness so that his testimony upon the subject up for consideration can be fully understood by the jury, and in order that the witness may not be placed in an improper light before the jury, whose duty it is to pass upon the truthfulness of his testimony. Any other rule than this would fall far short of justice either to the witness or to the defendant, and the rule is so well settled that it is not necessary for us to cite authorities to support it. Bill of exceptions No. 39 complains of the refusal of the court to give the defendant’s special charge, as follows: “You are instructed as a part of the law of this case that if the defendant believed the deceased was armed and had any reasonable ground for such belief, then the defendant would have the right in law to act upon such belief, even though you find that deceased was not in fact armed.” The court in approving this bill states: “That the refused charge is covered in the main charge.” We have examined the main charge and we have failed to find anything in that charge which covers the point presented in this special charge. It is contended by the Assistant Attorney-General that this charge is covered by paragraph 21 of the court’s charge, which paragraph is as follows: “In this connection you are charged that if before the killing the defendant had been informed that the deceased had made threats to take his life or to do him some serious bodily harm, and as to whether the defendant had received such information is a question for you to determine, and that at the time of the difficulty which resulted in the killing of the said B. D. Persons, the said B. D. Persons, by his act or acts or manner, caused the defendant to believe that he, the said Persons, intended to put the threat or threats so communicated to the defendant, into execution, and that the defendant believed or had reason to believe that the deceased was about to put said threat or threats into execution, or if you have a reasonable doubt as to said matters, then you will acquit the defendant.” We do not think that this charge covers the point presented by the special requested charge. We think the requested charge should have been given. We have disposed of all of the bills of exception and all of the issues presented in this record except the one presented by bill of exceptions No. 30. It is apparent from what has been said already that this case must be reversed and remanded for another trial; we could, therefore, decline to decide the constitutional question raised by this exception. But inasmuch as this is a question which is likely to arise at any time in any case, and one which seems to be at this time unsettled in this State, we feel that it is our duty to declare what we conceive the law to be with reference to this issue. Appellant, as a preliminary step to the trial of this case, filed a plea to the jurisdiction of the court in which it was alleged that the court in Limestone County, who changed the venue to Ellis Coqnty, on his own motion, acted without authority of law, and therefore jurisdiction did not attach to Ellis County. Replying to this contention it is sufficient to say that even though the contention of appellant be correct, he is in no position to take advantage of that situation because the record shows that he was present both in person and by counsel at the time the order was entered changing the venue from Limestone to Ellis County, and made no objection to the proceeding nor to the order of the court. If he desired to protest against the action of the court in this respect he should have done so at that time, and not have waited until after the court assigned his reasons and made his order, and the State had called him to the bar to answer the charge in such other jurisdiction. Therefore, we hold that there was no error in the trial court over-i ruling appellant’s plea to the jurisdiction of the court. Bill of exceptions Eo. 30 complains of the action of the court in permitting the State to show by one Chas. I. Evans, Jr., “that he was a shorthand reporter, stenographer and typewriter, residing in Balias, Texas, and official reporter of the Criminal District Court of Dallas County, Texas; that he 'was called on to report the testimony in the habeas corpus trial of Bob Kemper at Groesbeck, Texas, being employed by the attorneys for the State; that he took down the testimony of all the witnesses in shorthand, and afterwards transcribed his shorthand notes on the typewriter in person; that he held in his hand while testifying his typewritten statement of the testimony taken at said habeas corpus trial, which included the original testimony of the witness, J. G. Stovall; that he had correctly taken down said testimony, and correctly written out his shorthand notes, and that the same was a correct reproduction of the. testimony of said witness; and said statement of said Stovall’s testimony showed that J. G. Stovall was sworn at the time he gave his testimony at said habeas corpus trial, but there is no other testimony that said Stovall was in fact sworn; said Evans testified that said record was correct and it was shown that said Stovall was dead at the time of this trial, whereupon the State then offered in evidence the testimony of the said J. G. Stovall, deceased, as taken down by the said stenographer as above stated, to which the defendant objected, first, because it would be violative of the defendant’s rights under the Federal Constitution, which guarantees that the defendant shall be confronted with the witness; second, it is violative of the defendant’s rights under the State Constitution, in that he is not confronted with the witness; third, it is hearsay; fourth, that it purports to be a record of the habeas corpus trial for bail and not a former trial of this case nor an examining trial; fifth, that it is not shown that the stenographer who took it was sworn at the time of the trial; sixth, because this statement was taken down by a stenographer employed by -the private prosecution of this case and not by an official stenographer appointed by the court; seventh, that said testimony was not taken by any person authorized by the court, nor any officer of the court authorized by the laws of this State. The question to be determined, arising upon this exception, is one that has frequently been before this court and courts of other States, and occasionally before the Supreme Court of the United States. It involves the meaning of a constitutional guaranty to a citizen of the sovereign State of Texas. It also involves the consideration of the effect of the Bill of Eights which has been written into our Constitution. It also involves the validity of the statute passed relating to the admission of testimony reduced to writing in an examining trial after the witness dies or leaves the State and his testimony given upon the examining trial is offered before the court and jury against the accused upon a final trial when the defendant is arraigned upon a bill of indictment. The decisions of this court, from the Greenwood case, 35 Texas, 587, down to the Cline case in 36 Criminal Appeals Reports, page 320, announce the rule that testimony taken in an examining trial, as prescribed by article 288 in the Code of Criminal Procedure, can be introduced against an accused person upon a subsequent trial upon an indictment, where it is shown that the witness is dead at the time of the offering of the testimony, notwithstanding the guaranty of the Bill of Rights as incorporated in our .Constitution. The Cline case, supra, for the first time challenged the correctness of these decisions, and declared with great force the contrary rule, a majority of the court rendering the opinion, Judge Henderson dissenting. The rule announced in the Cline ease was recognized and followed until the decision in the Porch case in the 51 Texas Criminal Reports, page 7, at which time the personnel of the court had changed, Judge Brooks succeeding the late Judge Hurt. In the Porch case Judge Brooks agreed with the opinion of Judge Henderson and the court overruled the Cline case, Judge Davidson dissenting. Again, in the Hobbs case, 53 Texas Crim.' Rep., 71, the personnel of the court again having changed, Judge Henderson having left the court, Judge Ramsey succeeded him, the court, through Judge Ramsey, announced the decision in that case, and again adhered to the rule announced in the dissenting opinion of Judge Henderson in the Cline case and affirmed the doctrine established in the Porch case. This opinion of the court was dissented from by Presiding Judge Davidson, who delivered the opinion of the court in the Cline case. The Hobbs case was again followed in the Pratt case, 53 Texas Crim. Rep., 281, 109 S. W. Rep., 138, the court being constituted the same as when the opinion in the Hobbs case was delivered, Judge Davidson again dissenting. In order that we may have clearly before us the proposition, we will quote that portiop of the Bill of Rights applicable, set forth in 'the Constitution of the State of Texas of 1876: "Section 10. In all criminal prosecutions the accused shall have a speedy, public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof. He shall not be compelled to give evidence against himself. -He shall have the right of being heard by himself or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor, and no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia when in actual service in time of war or public danger.” Section 29 of the Bill of Rights, referring to the guarantees set forth therein, is as follows: “To guard against transgressions of the high powers herein delegated, we declare that everything in this 'Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following pr