HARPER, Judge.
Appellant was indicted by the grand jury of Hansford County, charged with the murder of Sheriff Martin. The venue was changed, and the cause was tried in Lipscomb County. Appellant was adjudged guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
There are a number of bills of exception and assignments of error in the record, and that our ruling thereon may be better understood, it may not be amiss to give a brief outline of the case as presented by the record. It appears that appellant claimed and was residing on a tract of land in Hansford County; that G. W. Horton, executor of the
estate of Geo. W. Norton, also claimed this tract of land. Norton brought suit against appellant to try the title to this tract of land in the District Court of Hansford County in 1908, and appellant was served with citation by B. 0. Cator, who was then sheriff of that county, and who also levied a writ of sequestration on the land in question and notified appellant he had ten days in which to replevy it, otherwise he would be compelled to put him off of the land. At that time, according to the testimony of ex-Sheriff Cator, the following conversation took place: When the sheriff informed him that he had papers to dispossess him, appellant said: “God damn you, I have taken all I am going to take from you.” When the sheriff replied: “I didn’t come here to fight, I came here to talk,” appellant replied: “God damn you, you would sooner see your box than put me off of here, and he would kill any s—n-of-a-b—h that attempted to put him off.” The sheriff told him he would give him ten days to replevy and if he did not do so he would return and put him off. Appellant did not replevy the land, and the sheriff sent his deputy, Martin, the deceased, and Bowling, a special deputy, to execute the writ and dispossess appellant. Bowling says: “When we got there, Martin called appellant, and appellant began cursing, saying: 'Martin, I said I was going to kill the first man that undertook to put me off this land, and I have not taken it back,’ and if he (Martin) was hunting for trouble, he was ready for it. Martin at once arrested him, and went in the house, and secured possession of appellant’s gun, keeping him under arrest while moving his property off the land.” Subsequently, appellant moved back on the land in question.
At the next term of court, appellant did not appear, and judgment by default was rendered against him, adjudging the land to be Norton’s. A writ of possession was issued, but which appellant did not respect. Norton then brought suit to enjoin appellant from going on the land adjudged to him in the suit, but appellant, although served, ignored the injunction. Affidavit was then made that he had disobeyed the injunction, and appellant was adjudged guilty of contempt, and sentenced to jail. After being confined in jail for some time, he signed an agreement not to go on the land, unless the courts should finally adjudge him to be the owner, when he was released. In violation of the orders of court and his agreement, he at once returned to the "land, and took possession thereof.. Norton then brought suit in Federal Court and sued out a writ of sequestration. A deputy marshal served him with a citation, and levied the writ, informing the appellant he had ten days in which to replevy and hold ■ the land, and if he did not do so, he, the marshal, would be compelled to eject him therefrom. Appellant did not replevy, and after the lapse of time plaintiff, Norton, replevied the land, and when he did so, Bolton, the deputy marshal, and Sheriff Martin, deceased, went to the land to inform appellant and put Norton in possession. They went to the house in day time, but did not find appellant. They returned shortly after dark, seeing a
light in the house. Bolton had the writ of sequestration, replevy bond and bond of indemnity with him. Martin had an execution for costs against appellant issued out of the District Court. This much may be said to be uncontroverted.
The State’s testimony showed that when Bolton and Martin started to the house, the light went out, and appellant came out running towards the barn, when Martin, while within forty or fifty yards of appellant, called to him: “Hold on, Phil, this is Martin,” repeating it. When appellant did not stop, Martin fired. Appellant kept running until he got to the barn, a distance of about 150 yards. Bolton and Martin then went to the barn and called appellant, Martin telling him who he was, and that he wanted to see him. Ho response was made. Deceased Martin and Bolton then started to return to the house, but after going a part of the way, decided to return to the barn and search for appellant. When they got to one stall, Martin struck a match and remarked, “This is Phil’s (appellant’s) horse,” but not seeing appellant, he went to the next stall, and asked Bolton for a match to look in it. As he struck the match, a gun fired, killing him. The muzzle was so close as to burn the fuzz on his garments. Bolton left, going in search of assistance. Johnson testified that appellant came to his house the night of the killing about 11:30, and told him he wanted to give himself up; that he had killed a man. Said he had killed Martin; that it was Martin’s voice. A witness testified that he was on appellant’s place the day before the killing, and when appellant saw him coming, appellant went to his barn and got a gun, and left and went into a nearby dugout. That he could detect appellant watching; that appellant did not return to the house, and he left.
Appellant testified for himself and denied the conversations testified to by ex-Sheriff Gator, and Special Deputy Bowling. He also denied the conversation with witness, Johnson, and testified he did not know who it was when he shot and killed him, but he did hear Bolton say after the shot was fired, he had killed Martin. He explained that the day before he was duck hunting, and had gone by to feed his stock, when the witness saw him get the gun at the barn. He returned home from a brief trip to town the day of the killing, and in coming by the barn, left his gun down there. He did not know Bolton and Martin were near until he had blown out the light and started in a walk to return to the barn to feed. He was not running; heard some one say, “Hold-up,” but heard no more, and then two shots were fired at him, and he run to the barn. The two men followed him to the barn; he did not know who they were, nor their purpose. He concealed himself in the stall, the adjoining one in which he had placed his horse. He did not fire until Martin started to come into the stall in which he was located, and not knowing who it was, nor his purpose, he shot. When Bolton left, he turned his cows into the pasture, got his horse and left, going first to Thronson’s and then to Johnson’s. On cross-examination, he admitted that he knew judgment had been obtained
against him for the land, but said attorneys said they could have it set aside as it was taken on an amended petition; that he had been enjoined, and- fined and imprisoned for violating the injunction, and had signed a written agreement not to go on the land, and had ignored the injunction and agreement.
1. Appellant complains of the action of the court in overruling his motion for a postponement of the case, in which he alleged that he desired to have the land surveyed, to show that he. was not on Norton’s land, but was in fact on his own land, and had a right to resist being ejected therefrom. The judgments of the District Courts of this State, when not appealed from, are final, and when in a suit between Norton and appellant, the land was adjudged to belong to Norton, appellant was bound thereby. It is true, he now contends that the judgment was void, because rendered by default on an amended petition. By examination of the original petition and the amended petition, we find that no new cause of action was set up in the amended petition. In the original petition, plaintiff, Norton, sued in trespass to try title and for damages, for a section of land, alleging it to be “section number 135, certificate number 33/455, abstract number 68, G. II. & H. R. R. Co. surveys, Hansford County, Texas.” In the amended petition, the land was thus again described, but in addition thereto, the field notes were set out as well. This is the only thing added by way of amendment. In Railway v. Morris et al., 68 Texas, 60, our Supreme Court says: “Where, after issuance and service of citation, amended petition was ■filed containing same allegations regarding damages, but more specific, and no new cause of action was alleged, held no notice of filing amendment necessary to enter default.” In this case no new cause of action was set up; the original petition sufficiently described the land to have proceeded to judgment, and the fact that by amendment the field notes were added thereto, would not render the judgment by default void. Appellant can not be permitted to say he had a right to defend his possession by force of 'arms, especially so as subsequent to the rendition of this judgment he was informed that his contention had been adjudged against him by a court of competent jurisdiction, had been arrested and imprisoned for contemptuously ignoring the court’s orders in regard thereto, and in order to get released from jail, had signed an agreement to remain off the land. No man has a right to take his shotgun and set himself up in defiance of the courts of his country, nor claim, after they had adjudicated the question, that because he thought the courts were wrong, he.would ignore the decrees, and forcibly retain possession of property, that had been adjudged did not belong to him. This is a country of law and order, and the day is passed, if it ever existed, when a man can set at naught the decrees of a court, and defy the legally constituted authorities. Appellant can not, in this case, base any defense on a right to defend his possession of the land in question, and the court did not err in overruling the application on this ground. Neither did the court err in overruling the application on the
ground of the absence of the witness, Armstrong. All he states he expects to prove by this- witness, was that this witness would testify that he had heard the witness, Bolton, say that two shots were fired. Bolton testified only one shot was fired, and if the absent witness would testify as alleged, it would only be admissible to impeach the witness, Bolton, and a continuance or postponement will not be granted to obtain impeaching testimony. Garrett v. State, 37 Texas Crim. Rep., 198; Rodgers v. State, 36 Texas Crim. Rep., 563; Butts v. State, 35 Texas Crim. Rep., 364; Franklin v. State, 34 Texas Crim. Rep., 203; Bolton v. State, 43 S. W. Rep., 1010.
2. In the second bill of exception appellant complains State’s counsel propounded to Bolton the following question: “Can you state to the jury from the report of the gun and the position you occupied between Mr. Martin and Mr. Fifer, the direction Martin fired the gun?” “To which the defendant objected because such was not a proper subject of expert testimony, was a conclusion of the witness, and if it could possibly be a proper subject of expert testimony, -then no predicate was laid for its introduction. Which objections were, -by the court, overruled, and said witness permitted to testify in the presence and hearing of the jury that he could tell the direction said Martin fired the gun, and in substance, that said shot was not fired in the direction of Fifer.” Bot enough of the testimony is set out in the bill to enable the court to pass intelligently on the question of the admissibility of this testimony. A bill should always be so full and complete, that, without referring to the other parts of the record, the court would be enabled to pass on the question from the bill alone. Insofar as this bill is concerned, the court might infer that Bolton was looking direct at Martin, or any other state of facts which would enable Bolton to testify positively from personal knowledge. McGlasson v. State, 38 Texas Crim. Rep., 351; Attaway v. State, 31 Texas Crim. Rep., 475; Davis v. State, 14 Texas Crim. App., 645, and authorities cited in section 857 of White’s Annotated Code of Criminal Procedure. But if we turn to the statement of facts and read the witness’ entire testimony, the objection would go to the weight of the testimony and not to its admissibility. In bill Bo. 3, the same matter is presented in a different form, and the bill is subject to the same objections.
3. In bills of exception Bos. 4, 5, 6, 12, 13, 14, 15, 16, 17, 18 and 19, appellant reserved exceptions to the introduction of (1) the original petition in suit of Borton v. appellant; (2) the amended original petition in said suit; (3) the judgment of the court; (4) the writ of possession issued on said judgment; (5) the petition for injunction; (6) the affidavit alleging violation of the injunction; (7) the judgment adjudging him guilty of contempt of court; (8) the writ of sequestration issued out of the Federal Court; (9) bond for writ of sequestration; (10) indemnity bond; and (11) an execution for costs issued
out of the District Court of Hansford County, found in deceased’s possession. As illustrative of the bills, one recites:
“Be it remembered that upon the trial of the above entitled and numbered cause, State’s counsel offered in evidence the original petition in the suit of Gr. W. Horton, executor, v. P. P. Fifer, in the District Court of Hansford County, Texas, same being a suit in trespass to try title, presumably affecting the premises where the homicide occurred. To the introduction of which defendant objected because the same was a civil suit, irrelevant and immaterial to the issues in this causé; was calculated to prejudice the jury by causing them to believe that defendant was a trespasser upon certain land. Which objections were, by the court, overruled and said original petition permitted to be read in evidence to the jury.
“To which ruling and action of the court defendant then and there in open court excepted, and now here tenders this his bill of exceptions and asks that the same be examined, signed and approved and ordered to be filed as a part of the record in this cause, which is accordingly done.”
In none of these bills are the instruments to which objection was made set out in the bills, nor is the substance of the instrument. The recitation is that a certain instrument was introduced in evidence, and then the grounds of objection to its introduction. If there could be any state of facts upon which these instruments would be admissible, the court must so infer. As hereinbefore stated, bills of exception must be complete in themselves. An unbroken line of authorities in this court hold that to have the trial court reviewed on appeal in admitting or rejecting testimony, the bill must present the matter in so complete a manner that the court, from an inspection of the bill, without reference to other portions of the record, can act on it. The recitations of the bill that it was “irrelevant and immaterial” are too general, and that it was “calculated to prejudice the jury by causing them to believe the defendant was a trespasser upon certain lands,” can not be passed upon without an inspection of .the instrument, and the instrument not being in the bill, we would have to turn to the statement of facts to find it. Tweedle v. State, 29 Texas Crim. App., 585; Quintana v. State, 29 Texas Crim. App., 401; Hooper v. State, 29 Texas Crim. App., 614; Wilkinson v. State, 31 Texas Crim. Rep., 86; Ballinger v. State, 11 Texas Crim. App., 323; Moorty v. State, 35 Texas Crim. Rep., 450. For a discussion of bills of exception, see Patterson v. State, and Conger v. State, decided at this term of court, and authorities cited. But should we consider these bills, it would be difficult to conceive wherein they were prejudicial to defendant. As will be seen, in the motion for a postponement in the beginning of the trial, he tendered the issue that he was in fact the owner of the land, and had a right to defend his possession. In his testimony, he tendered the issue that he was the owner of the land in question, and was claiming it in good faith, two of the special charges requested by appellant raise .this
issue, and under the circumstances, we think it was a material issue to prove that appellant had been sued for the land, that it had been decided that he was not the owner of it, and had been enjoined from entering thereon; had signed an agreement not to go on the land, all to show that his claim was not in good faith, and which facts and circumstances, taken together with the testimony of Gator and Bowling, show a determination to hold the land, in spite of the law, and hold even if he had to' take life to do so. It all, in the light of this testimony, tended strongly to show the state of mind of appellant, and the motive actuating him on the night of the killing, and we do not think a reversible error was committed in admitting these papers, especially so when the court instructed the jury: “In connection with the documentary evidence, consisting of various court papers, introduced in evidence, you are instructed that you can consider same only, if at all, in connection with the issues of motive and malice, and for no other purpose, and you can not consider any statement, if any, in such papers with reference to the character of the defendant for any purpose in this case.” As before stated, if the bills were full and complete, when thus limited by the court, taking into consideration the contention of appellant as manifested by the record, we do not think any reversible error was committed by the court. By turning to the statement of facts and reading them, there are two, perhaps, the portion of them speaking of appellant and his disposition, should not have been admitted, but the bills presenting these do not copy them in the bills, and to learn what was in them, we were compelled to refer to the statement of facts. However, the court instructed the jury not to consider these paragraphs, and none of the papers except insofar as they might tend to show motive or malice.
4. Neither can we consider the assignments of error in the transcript. This court has held that we can only look to the motion for a new trial, and consider such questions as there raised.
o. There was no error in permitting the witness to state that the writ of possession, on which appellant was ejected, was issued out of the District Court of Hansford County. Neither was there error in the court permitting the witnesses, Gator and Bowling, to testify to threats made by defendant at the time he was notified the land was levied on, and at the time he was moved off the land. He then said he would' kill the man who put him off; had to be arrested and held while his things were put off; and moved back on the land despite the judgment of the court. All this tended strongly to show the spirit actuating defendant and his motive, if the State’s theory was believed by the jury.
6. In the light of the contention that appellant was still claiming the land in good faith, there was no error in permitting it to be shown that at the time defendant was dispossessed, the officer took the decree of the court, and in the presence of appellant, run the lines of the land, and appellant and his property were placed off the land. This
showed conclusively that appellant knew that a decree of court had been rendered decreeing him not
the owner
of the land. He made no effort to have this decree set aside, but undertook to hold it in the manner he had informed Gator and said in the presence of Bowling to Martin, deceased.
7. It was not error to permit the execution found in deceased Martin’s pocket to be introduced in evidence. Appellant was contending that Martin was' a trespasser, and this paper was evidence that Martin had a right to go on the premises to see appellant. Of course, no one contends that it gave him the right to shoot at appellant, or even fire his pistol, but this and the writ of sequestration show that both officers had gone on the premises in the discharge of their duties.
8. Appellant also complains of the action of the court in reforming the verdict of the jury. The verdict read: “We, the jury, find the defendant, P. P. Pifer, guilty of murder in the first degree, and fix his sentence to be life imprisonment.” The court changed the verdict to read: “We, the jury, find the defendant guilty of murder in the first degree and fix his punishment to be life imprisonment in the penitentiary.” In approving the bill the court says: “The change in the form of the verdict was made by me before it was filed, and in the presence of the jury, to which change they assented.” This presents no error.
9. The appellant also complains of the remarks of counsel for the State. It is asserted that H. E. Hoover said: “About that time, defendant was seen riding around with a gun. It is true he explained it, but, gentlemen, they alwaj^s explain it.” Appellant insists that this was very prejudicial. It was but the argument advanced by counsel, and we can not say it was improper.
10. Again appellant contends that the argument of R. E. Taylor was improper and hurtful. Taylor said: “After the defendant had been punished for contempt and placed in the jail at Canadian, he signed a written agreement, if they would let him out of jail he would purge himself of the contempt he had been guilty of and not go back on that land; that he left the jail at Canadian and went through a portion of Hemphill County, and I assume across Ochiltree County into Hansford County, and perched himself on this same identical land; he remained there according to his own testimony and remained on this land until he had killed poor Martin and was taken off from there by reason of the fact, and if you return a verdict of not guilty in this case and permit him to go free, he will return again -there and remain there until he will kill another good sheriff.” All this is but a recitation of the evidence, except the latter clause wherein he said: “If you return a verdict of not guilty in this case and permit him to go free, he will return again there and remain there until he will kill another good sheriff.” This, we think, was a deduction drawn by counsel from the evidence, and if we say they can not state deductions in their argument with evidence upon which to base the remarks, it would narrow
State’s counsel to such a point it would be dangerous for them to speak for fear of a reversal.
11. We can not consider paragraphs
39 to 57,
inclusive, of the motion for a new trial. They read: “Because the court erred in giving in charge to the jury, paragraph number one of his general charge,” and so stating a different number in such paragraph. This states no ground of objection, points out no error, and is too general to be considered. • In the paragraphs following, each paragraph of the charge is thus referred to, and none attempt to point out wherein the court erred.
12. Again in paragraphs Eos. 20 to 38, inclusive, it is only alleged: “Because the court erred in refusing to give in charge to the jury defendant’s special requested charge Eo. 1,” and each succeeding number complaint is made in the same way of a different special charge requested numbered from 1 to 19. The appellant thus does not give the trial court a chance to consider the matter properly. In the motion for a new trial, the error should b.e pointed out, and if it is a failure to give a special charge, some reason or facts stated wherein it was applicable to the ease. However, we have read the special charges as well as the charge, and the court’s main charge covers those applicable to the facts in evidence. In a number of them there was no evidence on which to base them.
13. There was no evidence to call for a charge on uncommunicated threats. There was no evidence that deceased, Martin, had made any threat at any time.
14. The appellant, in a number of paragraphs in the motion, complains of the action of the court in limiting defendant’s right of self-defense to the- acts of B. E. Martin alone, and in not submitting the acts and conduct of L. J. Bolton as well as those of Martin. Eo complaint is made of the charge on self-defense as applied to the acts and conduct of Martin, only that defendant had the right to act from the conduct of Bolton as well, and if Bolton did anything, the contention should be sustained. We have read and reread the evidence of Bolton and defendant. They were the only living persons present at the time the fatal shot was fired. Bolton was with Martin at the place. The evidence shows that Martin fired a shot, that Bolton and Martin went to the barn together; that Martin struck the matches, and called defendant. Bolton is not, either by the evidence of himself or of defendant, shown to have fired a pistol, drawn a gun, or said anything at which anyone could take offense, and the evidence merely showing his presence, and no more, we do not think the court erred in the matter.
15. Eeither do we think the facts called for a charge on manslaughter. It is true a shot was fired, and defendant says he heard it singing close to him; that he run to the barn and was followed down to the barn. But it appears that he was called by Martin by his given name, saying, “Phil, I want to see you.” Fifteen minutes elapsed after the shot was fired before Martin was killed. Appellant was in hiding, and
does not testify to such a state of anger, rage or terror as to render him incapable of cool reflection. In fact, his conduct, according to his testimony, would indicate coolness and deliberation, for as soon as he fired the shot, he watched Bolton leave, turned out his stock, went to the house, changed his coat, and rode over -to a neighbor’s.
16. Neither do we think the facts alleged to be newly discovered testimomr would authorize a reversal of this case. The fact that Martin and Bolton had that evening shot at a target (a fact he did not know at the time of the killing) could not and would not be a defense. Nor the fact that Martin’s pistol was out of repair, and he borrowed one from Bolton. Appellant does not testify that Martin had a pistol or was seeking to use it at the time he was shot. He attempts to justify his conduct on the ground that these men came on his place; that he did not know who they were, and one fired a shot or two shots, as he was on his way to the barn. After getting to the barn, he was followed, and thought his life was in danger, and killed the man just as he was about to be discovered. The court submits this theory to the jury, and instructs them to acquit the defendant if the evidence does not show the falsity of it. Hnder the evidence, the jury would be authorized to find that defendant knew it was Sheriff Martin, and heard Martin tell him it was him, calling him by name, saying: “Wait Phil, I want to see you.” That he kept his gun in the barn, and run there to it, and when he got there, waited until the sheriff was about to find him, and then killed the sheriff because he believed he had come to again move him off the land, thus executing the threat he had made to ex-Sheriff Gator when first served with a citation.
We do not think there is any such error in the record, after carefully reviewing it, as would justify a reversal, and the judgment of the trial court is affirmed.
Affirmed.
Davidson, Presiding Judge, absent.