DAVIDSON, Judge.
Appellant was convicted of an assault with intent to murder Frank Ruby, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
When the case was called for trial, he filed his application for a continuance on account of the absence of Matt Chandler, Andrew Thomas, John Brown, Abe Bryson, Tom Brown, and Bill Davis. In setting out the facts expected to be proved by these absent witnesses, but two of them are mentioned, to wit, Matt Chandler and Abe Bryson. The evidence, if any, expected to be obtained from the others, is not stated. Of course, if they were not shown to be material witnesses, he could not have expected to obtain a continuance for them. As to Matt Chandler and Abe Bryson, it is sufficient answer to the motion to state that they both appeared and testified on the trial; one for the defendant, and the other for the State.
The second bill of exceptions recites that T. C. Rowe, who was assisting the district attorney in this prosecution as counsel for the State, “imparted to the jury information which had been sedulously guarded against by defendant’s counsel as a matter of evidence, and which had not been shown as a matter of evidence, to wit, that Louis Joseph, a codefendant with this defendant, had been tried and convicted for the
murder of March Ruby, and was serving out a term in the penitentiary therefor.” Defendant excepted. “Defendant further says that, while the court instructed to jury to disregard said statement, it was impossible to repair the injury thus done defendant by acquainting them with said fact.” The court explains this bill by stating “that when counsel for the State made the remark above referred to he was promptly and emphatically rebuked by the court, and the jury were instructed that the same was improper, and not to be weighed or considered by them; and were also instructed by the court, in the charge of the court, to the same effect.” Remarks of this character should be carefully avoided by counsel during a trial, either in their argument, or at any other stage of the proceeding. As a general rule, objectionable remarks of prosecuting counsel, if promptly withdrawn by the court, and the jury properly instructed to disregard and not consider the same, will not constitute error, unless injury is shown to have resulted. King v. State, 32 Texas. Crim. Rep., 463; Boscow v. State, 33 Texas Crim. Rep., 390. The statement of a matter of fact by counsel in their arguments can not occupy a higher plane before the jury than the introduction of improper evidence. When improper evidence has been admitted, through inadvertence or otherwise, in behalf of the State, even when not objected to in the first instance, it is proper practice on motion to exclude it from the jury, and to instruct them not to consider it; and usually, where it has been excluded, and the jury instructed to disregard the same, it will not be cause cause for reversal. This has been a question of serious trouble in appellate courts, and it is a very difficult matter to lay down a rule under such circumstances. Usually the error is corrected by the court withdrawing the improper evidence from the consideration of the jury. This has been the rule in this State, and seems to be in accord with the weight of the authority. Sutton v. State, 2 Texas Crim. App., 342; Marshall v. State, 5 Texas Crim. App., 273; Phillips v. State, 22 Texas Crim. App., 139; Nalley v. State, 28 Texas Crim. App., 387; Miller v. State, 31 Texas Crim. Rep., 609. We would not be understood as holding that eases may not arise in which the withdrawal of testimony would not cure the error committed in admitting the same. It may occur that evidence so prejudicial in its character may be admitted as to so influence the jury against the defendant that it would deprive him of a fair and impartial trial. If the testimony was of such a prejudicial character as to probably have this effect, we would unhesitatingly reverse the judgment. But we do not believe, under the circumstances of this case, that the statement of the State’s counsel was of this character when viewed in the light of the whole record.
The third bill of exceptions recites that “the court admitted, over defendant’s objection, testimony relative to a difficulty which occurred between one Louis Joseph and one March Ruby on the day and date charged in the indictment in this case, wherein this defendant is charged with having committed an assault upon Frank Ruby with the intent to murder said Frank Ruby; to which ruling of the court the defendant then
and there excepted,” etc. The court, in approving this bill, states that: “The shooting of Frank Ruby, with which defendant is charged, and the killing of March Ruby, with which Louis Joseph was charged, were so connected that it was impossible to separate them in the evidence. The jury, in the charge of the court, was properly instructed as to this.” The bill of exceptions reserved by appellant does not state the facts relative to the difficulty between Joseph and March Ruby, nor does it state the grounds of objections of, appellant to the introduction of said testimony. The bill itself, then, is too defective to require revision. But in looking to the statement of the judge in approving this bill he puts the matter so that there was no error in admitting it. If Louis Joseph was shooting March Ruby while the defendant was shooting Frank Ruby, and it all occurred at the same time, and was part and parcel of the same transaction, then the testimony in regard to the part that Louis Joseph took in the transaction was res gestae, and therefore admissible; and that seems to have been the view taken of it by the court, both in the explanation to the bill and in the charge to the jury. A reference to the statement of facts would show that it was a part and parcel of the same transaction, and that the parties intended to kill both the Rubys; and that Louis Joseph did in fact kill March Ruby while the defendant was shooting Frank Ruby.
The fourth bill of exceptions recites that the defendant excepted “generally to the charge of the court.” This, of course, will not authorize a revision of the charge, for, under the decisions of this court, the exception is too general, and points out no assumed defect in the charge.
Appellant also reserved an exception to the action of the court overruling the motion for a new trial, the sixth ground of which alleges that the court erred in not charging the law of self-defense. In signing the bill of exceptions, in this respect the court explains as follows: “In explanation of the exception to the charge for failure- to charge the law of self-defense, I will state that the defendant’s counsel presented to the court a written request to charge the law of aggravated assault and self-defense. The court stated to the defendant’s counsel that it would be done, and especially that the court would charge the law of self-defense, if defendant requested it. After considering the matter, the defendant’s counsel said he would not ask the court to charge the law of self-defense, and erased that portion of the written request to charge, and in fact intimated to the court that he did not wish the law of self-defense to be presented in the charge. The only defense presented was that the defendant did not, in fact, shoot the man Frank Ruby, but that it was done by Louis Joseph.” The court gave a charge on aggravated assault and battery.
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DAVIDSON, Judge.
Appellant was convicted of an assault with intent to murder Frank Ruby, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
When the case was called for trial, he filed his application for a continuance on account of the absence of Matt Chandler, Andrew Thomas, John Brown, Abe Bryson, Tom Brown, and Bill Davis. In setting out the facts expected to be proved by these absent witnesses, but two of them are mentioned, to wit, Matt Chandler and Abe Bryson. The evidence, if any, expected to be obtained from the others, is not stated. Of course, if they were not shown to be material witnesses, he could not have expected to obtain a continuance for them. As to Matt Chandler and Abe Bryson, it is sufficient answer to the motion to state that they both appeared and testified on the trial; one for the defendant, and the other for the State.
The second bill of exceptions recites that T. C. Rowe, who was assisting the district attorney in this prosecution as counsel for the State, “imparted to the jury information which had been sedulously guarded against by defendant’s counsel as a matter of evidence, and which had not been shown as a matter of evidence, to wit, that Louis Joseph, a codefendant with this defendant, had been tried and convicted for the
murder of March Ruby, and was serving out a term in the penitentiary therefor.” Defendant excepted. “Defendant further says that, while the court instructed to jury to disregard said statement, it was impossible to repair the injury thus done defendant by acquainting them with said fact.” The court explains this bill by stating “that when counsel for the State made the remark above referred to he was promptly and emphatically rebuked by the court, and the jury were instructed that the same was improper, and not to be weighed or considered by them; and were also instructed by the court, in the charge of the court, to the same effect.” Remarks of this character should be carefully avoided by counsel during a trial, either in their argument, or at any other stage of the proceeding. As a general rule, objectionable remarks of prosecuting counsel, if promptly withdrawn by the court, and the jury properly instructed to disregard and not consider the same, will not constitute error, unless injury is shown to have resulted. King v. State, 32 Texas. Crim. Rep., 463; Boscow v. State, 33 Texas Crim. Rep., 390. The statement of a matter of fact by counsel in their arguments can not occupy a higher plane before the jury than the introduction of improper evidence. When improper evidence has been admitted, through inadvertence or otherwise, in behalf of the State, even when not objected to in the first instance, it is proper practice on motion to exclude it from the jury, and to instruct them not to consider it; and usually, where it has been excluded, and the jury instructed to disregard the same, it will not be cause cause for reversal. This has been a question of serious trouble in appellate courts, and it is a very difficult matter to lay down a rule under such circumstances. Usually the error is corrected by the court withdrawing the improper evidence from the consideration of the jury. This has been the rule in this State, and seems to be in accord with the weight of the authority. Sutton v. State, 2 Texas Crim. App., 342; Marshall v. State, 5 Texas Crim. App., 273; Phillips v. State, 22 Texas Crim. App., 139; Nalley v. State, 28 Texas Crim. App., 387; Miller v. State, 31 Texas Crim. Rep., 609. We would not be understood as holding that eases may not arise in which the withdrawal of testimony would not cure the error committed in admitting the same. It may occur that evidence so prejudicial in its character may be admitted as to so influence the jury against the defendant that it would deprive him of a fair and impartial trial. If the testimony was of such a prejudicial character as to probably have this effect, we would unhesitatingly reverse the judgment. But we do not believe, under the circumstances of this case, that the statement of the State’s counsel was of this character when viewed in the light of the whole record.
The third bill of exceptions recites that “the court admitted, over defendant’s objection, testimony relative to a difficulty which occurred between one Louis Joseph and one March Ruby on the day and date charged in the indictment in this case, wherein this defendant is charged with having committed an assault upon Frank Ruby with the intent to murder said Frank Ruby; to which ruling of the court the defendant then
and there excepted,” etc. The court, in approving this bill, states that: “The shooting of Frank Ruby, with which defendant is charged, and the killing of March Ruby, with which Louis Joseph was charged, were so connected that it was impossible to separate them in the evidence. The jury, in the charge of the court, was properly instructed as to this.” The bill of exceptions reserved by appellant does not state the facts relative to the difficulty between Joseph and March Ruby, nor does it state the grounds of objections of, appellant to the introduction of said testimony. The bill itself, then, is too defective to require revision. But in looking to the statement of the judge in approving this bill he puts the matter so that there was no error in admitting it. If Louis Joseph was shooting March Ruby while the defendant was shooting Frank Ruby, and it all occurred at the same time, and was part and parcel of the same transaction, then the testimony in regard to the part that Louis Joseph took in the transaction was res gestae, and therefore admissible; and that seems to have been the view taken of it by the court, both in the explanation to the bill and in the charge to the jury. A reference to the statement of facts would show that it was a part and parcel of the same transaction, and that the parties intended to kill both the Rubys; and that Louis Joseph did in fact kill March Ruby while the defendant was shooting Frank Ruby.
The fourth bill of exceptions recites that the defendant excepted “generally to the charge of the court.” This, of course, will not authorize a revision of the charge, for, under the decisions of this court, the exception is too general, and points out no assumed defect in the charge.
Appellant also reserved an exception to the action of the court overruling the motion for a new trial, the sixth ground of which alleges that the court erred in not charging the law of self-defense. In signing the bill of exceptions, in this respect the court explains as follows: “In explanation of the exception to the charge for failure- to charge the law of self-defense, I will state that the defendant’s counsel presented to the court a written request to charge the law of aggravated assault and self-defense. The court stated to the defendant’s counsel that it would be done, and especially that the court would charge the law of self-defense, if defendant requested it. After considering the matter, the defendant’s counsel said he would not ask the court to charge the law of self-defense, and erased that portion of the written request to charge, and in fact intimated to the court that he did not wish the law of self-defense to be presented in the charge. The only defense presented was that the defendant did not, in fact, shoot the man Frank Ruby, but that it was done by Louis Joseph.” The court gave a charge on aggravated assault and battery. There was testimony introduced by the defendant tending to raise the issue of self-defense, and, but for the request of appellant to the court to pretermit a charge on this subject, his bill of exceptions might have been well taken. But, under the circumstances stated by the court, the defendant preferred to rely upon his evidence, which, if true, excluded the fact that he was engaged in the difficulty at all, and which
showed that he did not shoot Frank Ruby, nor shoot at him, nor in any way participate in the difficulty which resulted in the wounding of Frank Ruby. When the court proposed to submit the issue of self-defense, the defendant withdrew his request, and suggested that it be not submitted ; that he would stand upon the theory of his testimony, which excluded him from participating in the difficulty. This was, in fact, his defense. We do not believe that a party can, under such circumstances, take advantage of his own action. But for this action, the court would have submitted his theory of self-defense, and because of his suggestion it was not done. So, if a wrong was done him, he is responsible for it, and can not complain. The statute of 1897 has changed the rule somewhat with reference to the effect of charges in the trial court. The errors in regard to charges must not only be calculated to injure the rights of the defendant, but a bill of exceptions must be reserved at the time, or on motion for new trial. When the matter was presented to the court, the defendant declined to have the issue submitted, thus placing himself without the pale of the rule, as we understand it, by which he can take advantage of the supposed error on appeal, or even on motion for new trial.
The evidence amply supports the judgment. By the statement of facts the evidence for the State discloses a deliberate and willful premeditated attack on March and Frank Ruby; that they were both unarmed when met by Louis Joseph, defendant, and others; that Joseph and appellant were brothers-in-law; that Joseph shot March Ruby twice,—once when he was turning to flee, and the second time through the back, after he had run some twenty or thirty steps. The defendant shot Frank Ruby through the side with a pistol, and either he or Louis Joseph shot him in the leg as he was running away. This is the State’s theory of the case. There was some evidence for the defendant tending to show that both the Rubys were armed, and provoked the contest with Louis Joseph, and that defendant shot Frank Ruby after he had drawn his pistol for the purpose of shooting at Louis Joseph. But this was not credited by the jury, and we believe they were correct in not believing it. The judgment is affirmed.
Affirmed.