BROOKS, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.
Bill number 1 complains that appellant placed the witness Robert Pyle upon the stand, and he testified that he knew defendant and deceased, and that a short time before the homicide, deceased had stated to witness that he intended to kill the damn scoundrel Jim Adams (defendant) ; and defendant proposed to prove by said witness that deceased stated that defendant had informed Bill Bryan of a statement which deceased had made concerning Bryan’s wife; that deceased stated that what defendant had reported to Bryan that he had said about Bryan’s wife was true, but that it had caused him trouble, and for that he expected to kill defendant. Defendant, to elicit said facts from said witness, in connection with and explanatory of the threats about which the witness had testified, asked witness, while upon the stand, the following question : “What did deceased say in connection with and preliminary to the threat about which you have testified, and what. explanation, if any, did deceased make or why he intended to kill defendant.” In answer to this question, witness would have stated, “That deceased told him immediately before making the threat about which he had testified, and in connection therewith, that deceased referred to some trouble that he had had with Bryan and defendant Adams and others, and mentioned a report that defendant had made to Bryan of a statement which deceased had made to defendant concerning Bryan’s wife; and that defendant had made a true and correct report of what he had said about Bryan’s wife.” This bill has the following explanation, “That there was no objection made to the proof of the threat, to wit: that deceased intended to kill the damn scoundrel (defendant) but did object to what defendant had told one Bryant concerning reputed remark of deceased as to Bryant’s wife because irrelevant, immaterial and involved the right of other issues wholly foreign to this case, and was evidently offered to prejudice the State’s case.” The fact that deceased said that what defendant had stated was true, does not throw any light upon the threat, or in any manner explain the threat, but as the learned trial court seems to indicate, would be injecting into the case an issue foreign to any issue
in the case. The declaration of deceased that he had made derogatory remarks of the wife, and defendant had reported said remarks to the husband, and for that reason he expected to kill defendant, is a germane issue and threat in the trial of this homicide. But the question as to whether or not the report was true or false as made by defendant cannot, in the nature of things, affect this case. The declarations show the animus of deceased towards defendant in a pertinent way, disassociated from his opinion as to the correctness of the declaration by defendant. We can not see in what way appellant was harmed by the exclusion of this testimony.
Bill number
2
complains of the argument of the county attorney to the jury; and the third bill is with reference to the argument of the district attorney. Under the qualifications of the court to the bills, and the fact that defendant did not ask any special charge instructing the jury to disregard said remarks, we cannot see how the remarks injured appellant.
The fourth bill complains that while the district attorney was making his speech to the jury, among other things, he stated: “There is nothing at all in this contention of insult to defendant’s wife. This is a trumped up defense. I believe that this defendant is guilty of murder and murder in the first degree.” “To which statement defendant then and there in open court excepted, because improper, prejudicial to defendant, because expressing an opinion to the jury as to the guilt or innocence of defendant.” The district attorney appends this explanation to the bill: “I agree to this bill, with this statement: that no objection was urged in my presence and hearing to the above remarks; that no request was made in my presence and hearing that said remarks be disregarded by the jury, and no written request was made of the court to charge the jury not to regard such remarks, and if any exception at all was made, it was quietly done, to the court, and not within my hearing or knowledge.” The court approves the bill with ■this explanation: “Approved with the explanation of the district attorney as part of this bill. Mr. Dean, counsel for defendant, did except to the remarks of the district attorney as quoted in this bill, but did so in an undertone to the court, stating at the time he excepted that his reason for making the exception to the court in such a manner was that he did not wish to disturb Mr. McCall in his argument before the jury.” The statement of the district attorney, disassociated from the explanation of himself and trial court, does not occur to us to be prejudicial to the rights of appellant. As we understand, he is merely stating a conclusion drawn and deduced by him from the evidence produced upon the trial." But we desire to animadvert some upon the statement contained in the explanation, that the exception was not made in the presence and hearing of the district attorney, and the reason given by appellant’s counsel for not doing so, was that he might not be disturbed in his argument. It is proper that exceptions to improper argument, or argument deemed improper, be made to the
court; and it is immaterial whether State’s counsel hears the objection or not. The objection is addressed exclusively to the court, and it is the province of the court alone to rule upon it. We commend the practice of calling the trial court’s attention to illegitimate argument in an undertone or in writing, in such a manner as not to call the attention of the jury to the question at all, because in practice we know that by so doing, it even makes manifest and more apparent the illegitimate argument complained of. However, in the explanation above we note there was no written request that the jury be instructed to disregard the remarks. There was no error in the ruling of the court.
In the sixth paragraph of the motion for new trial appellant objects to the court’s charge on implied malice, because not a correct statement of the law, and is inapplicable to the facts of this case. And the 7th, 8th, 9th, 10th and 11th grounds of the motion complain upon the same general ground of the charge of the court. We have examined the charge very carefully, and in our opinion it is an admirable presentation of the law applicable to the facts in this case. Furthermore, said objections are too general to be considered by this court in passing upon an exception to the charge.
The 12th ground of the motion objects to a certain portion of the charge, “because it is not a correct -statement of the law applicable to this case, and in attempting to apply the law to the facts of this case, the court in said portion of the charge ignored defendant’s right to act upon the reasonable apprehension of danger as it appeared to him from his standpoint, and was not cured by any other portion of the charge.” We do not think this latter criticism is correct, but the charge taken as a whole is a proper charge.
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BROOKS, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.
Bill number 1 complains that appellant placed the witness Robert Pyle upon the stand, and he testified that he knew defendant and deceased, and that a short time before the homicide, deceased had stated to witness that he intended to kill the damn scoundrel Jim Adams (defendant) ; and defendant proposed to prove by said witness that deceased stated that defendant had informed Bill Bryan of a statement which deceased had made concerning Bryan’s wife; that deceased stated that what defendant had reported to Bryan that he had said about Bryan’s wife was true, but that it had caused him trouble, and for that he expected to kill defendant. Defendant, to elicit said facts from said witness, in connection with and explanatory of the threats about which the witness had testified, asked witness, while upon the stand, the following question : “What did deceased say in connection with and preliminary to the threat about which you have testified, and what. explanation, if any, did deceased make or why he intended to kill defendant.” In answer to this question, witness would have stated, “That deceased told him immediately before making the threat about which he had testified, and in connection therewith, that deceased referred to some trouble that he had had with Bryan and defendant Adams and others, and mentioned a report that defendant had made to Bryan of a statement which deceased had made to defendant concerning Bryan’s wife; and that defendant had made a true and correct report of what he had said about Bryan’s wife.” This bill has the following explanation, “That there was no objection made to the proof of the threat, to wit: that deceased intended to kill the damn scoundrel (defendant) but did object to what defendant had told one Bryant concerning reputed remark of deceased as to Bryant’s wife because irrelevant, immaterial and involved the right of other issues wholly foreign to this case, and was evidently offered to prejudice the State’s case.” The fact that deceased said that what defendant had stated was true, does not throw any light upon the threat, or in any manner explain the threat, but as the learned trial court seems to indicate, would be injecting into the case an issue foreign to any issue
in the case. The declaration of deceased that he had made derogatory remarks of the wife, and defendant had reported said remarks to the husband, and for that reason he expected to kill defendant, is a germane issue and threat in the trial of this homicide. But the question as to whether or not the report was true or false as made by defendant cannot, in the nature of things, affect this case. The declarations show the animus of deceased towards defendant in a pertinent way, disassociated from his opinion as to the correctness of the declaration by defendant. We can not see in what way appellant was harmed by the exclusion of this testimony.
Bill number
2
complains of the argument of the county attorney to the jury; and the third bill is with reference to the argument of the district attorney. Under the qualifications of the court to the bills, and the fact that defendant did not ask any special charge instructing the jury to disregard said remarks, we cannot see how the remarks injured appellant.
The fourth bill complains that while the district attorney was making his speech to the jury, among other things, he stated: “There is nothing at all in this contention of insult to defendant’s wife. This is a trumped up defense. I believe that this defendant is guilty of murder and murder in the first degree.” “To which statement defendant then and there in open court excepted, because improper, prejudicial to defendant, because expressing an opinion to the jury as to the guilt or innocence of defendant.” The district attorney appends this explanation to the bill: “I agree to this bill, with this statement: that no objection was urged in my presence and hearing to the above remarks; that no request was made in my presence and hearing that said remarks be disregarded by the jury, and no written request was made of the court to charge the jury not to regard such remarks, and if any exception at all was made, it was quietly done, to the court, and not within my hearing or knowledge.” The court approves the bill with ■this explanation: “Approved with the explanation of the district attorney as part of this bill. Mr. Dean, counsel for defendant, did except to the remarks of the district attorney as quoted in this bill, but did so in an undertone to the court, stating at the time he excepted that his reason for making the exception to the court in such a manner was that he did not wish to disturb Mr. McCall in his argument before the jury.” The statement of the district attorney, disassociated from the explanation of himself and trial court, does not occur to us to be prejudicial to the rights of appellant. As we understand, he is merely stating a conclusion drawn and deduced by him from the evidence produced upon the trial." But we desire to animadvert some upon the statement contained in the explanation, that the exception was not made in the presence and hearing of the district attorney, and the reason given by appellant’s counsel for not doing so, was that he might not be disturbed in his argument. It is proper that exceptions to improper argument, or argument deemed improper, be made to the
court; and it is immaterial whether State’s counsel hears the objection or not. The objection is addressed exclusively to the court, and it is the province of the court alone to rule upon it. We commend the practice of calling the trial court’s attention to illegitimate argument in an undertone or in writing, in such a manner as not to call the attention of the jury to the question at all, because in practice we know that by so doing, it even makes manifest and more apparent the illegitimate argument complained of. However, in the explanation above we note there was no written request that the jury be instructed to disregard the remarks. There was no error in the ruling of the court.
In the sixth paragraph of the motion for new trial appellant objects to the court’s charge on implied malice, because not a correct statement of the law, and is inapplicable to the facts of this case. And the 7th, 8th, 9th, 10th and 11th grounds of the motion complain upon the same general ground of the charge of the court. We have examined the charge very carefully, and in our opinion it is an admirable presentation of the law applicable to the facts in this case. Furthermore, said objections are too general to be considered by this court in passing upon an exception to the charge.
The 12th ground of the motion objects to a certain portion of the charge, “because it is not a correct -statement of the law applicable to this case, and in attempting to apply the law to the facts of this case, the court in said portion of the charge ignored defendant’s right to act upon the reasonable apprehension of danger as it appeared to him from his standpoint, and was not cured by any other portion of the charge.” We do not think this latter criticism is correct, but the charge taken as a whole is a proper charge.
The 13th paragraph of the motion is, “that the court erred in that portion of the charge wherein the court attempted to state the law with reference to threats to the defendant’s life, in case the jury found that deceased had threatened him.” The objection to this clause is that it is not a correct statement of the law, and is prejudicial to defendant. An examination of the charge shows it is a clear and succinct statement of the law of threats, and we do not see any error in the same.
Appellant also excepts to the following portion of the charge: “Defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to the defendant’s guilt, you will acquit him, and say by your verdict not guilty. The objection to this charge is, that it is not a correct statement of the law, and is prejudicial to the defendant. How or in what way it could possibly be prejudicial to defendant or is not a correct statement of the law we are at a loss to know, it being the stereotyped statement of the reasonable doubt approved by this court in many cases.
The 15th, 16th and 17th grounds of the motion, complain of the verdict being contrary to the law and the evidence. We do not think there is any merit in this proposition; but the evidence shows a cow
ardly killing of an industrious and unsuspecting Mexican. The clear preponderance of the evidence shows that at the time of the homicide he was engaged in working upon a wagon tongue for his employer, unaware of the stealthy approach of his assassin, and was shot down before he knew of his approach. It is true the defendant put these facts in issue by the testimony of the wife of appellant and his own testimony. This was a controverted question left for the jury, which they decided against appellant.. In our opinion the verdict is amply supported by the evidence. The judgment is affirmed.
Affirmed.