RAMSEY, Judge.
Appellant was indicted in the District Court of Fayette County charged with the murder of one Cabe Griffin. On trial he was convicted of murder in the second degree and his punishment assessed at confinement in the State penitentiary for ten years.
1. The charging part of the indictment is as follows: “That French Ringo in said county and State, on or about the 19th day of October, in the year of our Lord nineteen hundred and seven, did then and there unlawfully, with malice aforethought, kill Cabe Griffin by shooting him with a pistol, against the peace and dignity of the State.” Appellant filed a motion to quash this indictment for the reason, as claimed, that the same charged no offense against any of the laws of the State of Texas, and that the indictment was fatally defective in that it did not allege that Cabe Griffin, the creature alleged to have been killed, was a
reasonable creature in being.
The proposition is made by appellant in his attack upon this indictment, as follows: “The constitutional rights to demand the nature and cause of the accusation guarantees to the accused that the indictment or information shall set forth every fact and circumstance necessary to a certain, specific and complete description of the particular offense attributed to him, so as to characterize and make it appear judicially in the indictment; and an indictment which does not set forth and describe the offense sought to be charged with such certainty is not sufficient to hold the defendant to answer for crime, and is in violation of section 10, article 1, of the State Constitution and' section 1 of the Fourteenth Amendment to the Federal Constitution and which provides, in substance, as follows: Tío State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Uor shall any State deprive any person of life, liberty or property without due process of law.’” In support of this contention appellant submits the following authorities: Section 1 of the Fourteenth Amendment to the Constitution of the United States; Amendments 5 and 6 to the Constitution of the United States; section 10, article 1 (Bill of Rights), State Constitution; section
28,
article 1, State Constitution; section 19, article 1 (Bill of Rights), State Constitution; article 438 Code of Criminal Procedure (Wilson’s Crim. Stats., p. 129); article 3 of the Penal Code; article 53 of the Penal Code; article 710 of the Penal Code; article 435 Code Criminal Procedure; article 440 Code' of Criminal Procedure; Williams v. State, 12 Crim. App., 619 to 694; Wupperman v. State; 13 Texas, 33; People v. Lee Look, 137 Cal., 590; 70 Pac. Rept., 660; Hewitt v. State, 23 Texas, 722. On this question counsel for appellant
have filed a most interesting and vigorous argument. Whatever might 'be our opinion, as an original proposition, it is sufficient to say that this very question has many times been before this court and has been frequently and decisively ruled adversely to appellant’s contention. The indictment in terms follows the form prescribed by law. White’s Code of Criminal Procedure, article 458. See also Dwyer v. State, 12 Texas Crim. App., 535; Green v. State, 27 Texas App., 244; Jackson v. State, 34 Texas Crim. Rep., 38; Drye v. State, 14 Texas Crim. App., 185; Echannon v. State, 14 Texas Crim. App., 271; Walker v. State, 14 Texas Crim. App., 609; Moore v. State, 15 Texas Crim. App., 1; Phelps v. State, 15 Texas Crim. App., 45; Sharpe v. State, 17 Texas Crim. App., 486.
3. The second assignment of error is as follows: “The court erred in giving to the jury a voluminous confused charge, which did confuse the jury and which they did not or could not understand, and therefore instead of being an instruction to them of the law applicable to the case, was but a confused mass of literature which their minds were incapable of unraveling.” This assignment is so general as to point out no error and is not such an assignment, as contained either in the motion for a new trial or in the brief, as
to
demand a review at our hands.
3. Again, it is urged that the court erred in not granting appellant’s motion for a new trial because of the newly discovered evidence of Lee Dillard and Charlotte Jackson. It is claimed in the motion that Lee Dillard, who resided in Lavaca County, Texas, if present, would testify that he was present at the time appellant shot deceased and just prior to the shooting he saw deceased come into the house and ask for a gun, and that the women whom he asked refused to tell him where it was, but that another woman near by, told him where the gun was; that he got it and started out of the house; that some one stopped the deceased at the door; that there was a tussle between these men and the gun went off; that a few minutes after the gun went off, deceased came back and started outdoors with a knife in his hand and some one stopped him and as they stopped him they said, “Don’t let him out, he has a knife in his hand;” and a little while afterwards the witness heard two shots fired and then heard1 the deceased was killed. It is also stated in his motion for a new trial that the said Dillard is- a stranger to appellant and unknown to him and that he had no knowledge that said witness knew the facts above set forth and could prove them; that this evidence of said witness, Dillard, is very material to the defense of defendant, and that he had used every effort to discover such evidence as might be of avail to him, but was unable to obtain this evidence before the trial of his cause. A new trial was- also sought, as stated, on account of the newly discovered testimony of one Charlotte Jackson, who would testify that the first she knew of any difficulty
was when deceased ran into- the house where she was seated and asked a woman unknown to her, “Where is the gun?” That this woman refused to tell him where the gun was, whereupon, another young woman told him she would tell him where it was if he would tell her what he wanted with it; he would not tell her, so she told him anyway, after he again asked where it was. After she told him where the gun was he went and got it and started outdoors when another man in the house grabbed him with the- gun, and after he got loose from this man, he just leveled the gun at those in the house and told them not to bother him, when another man, called Grady, reached from behind and grabbed him and they both went down and the gun went off. It is alleged in his motion that he was not guilty of any negligence in not obtaining this evidence before the trial of his cause, and that he did not know that these witnesses knew such facts. There is no statement of what particular diligence, if any, he used to discover the presence of these witnesses and what they knew with reference to the details of the difficulty, and we think that in the absence of some showing, that this motion should not have been granted, and this, particularly in view of the fact that substantially the same evidence was adduced from a number of other witnesses. It seems to us, in the nature of things, that appellant must have known of these witnesses, or could by the slightest diligence, have known of their presence, and, knowing this fact, reasonable diligence on his part would have discovered the nature of their testimony. In every case, civil or criminal, parties litigant should be • held to a high degree of diligence to prepare their cases for trial and to adduce the testimony on which their case will be heard and determined.
4.
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RAMSEY, Judge.
Appellant was indicted in the District Court of Fayette County charged with the murder of one Cabe Griffin. On trial he was convicted of murder in the second degree and his punishment assessed at confinement in the State penitentiary for ten years.
1. The charging part of the indictment is as follows: “That French Ringo in said county and State, on or about the 19th day of October, in the year of our Lord nineteen hundred and seven, did then and there unlawfully, with malice aforethought, kill Cabe Griffin by shooting him with a pistol, against the peace and dignity of the State.” Appellant filed a motion to quash this indictment for the reason, as claimed, that the same charged no offense against any of the laws of the State of Texas, and that the indictment was fatally defective in that it did not allege that Cabe Griffin, the creature alleged to have been killed, was a
reasonable creature in being.
The proposition is made by appellant in his attack upon this indictment, as follows: “The constitutional rights to demand the nature and cause of the accusation guarantees to the accused that the indictment or information shall set forth every fact and circumstance necessary to a certain, specific and complete description of the particular offense attributed to him, so as to characterize and make it appear judicially in the indictment; and an indictment which does not set forth and describe the offense sought to be charged with such certainty is not sufficient to hold the defendant to answer for crime, and is in violation of section 10, article 1, of the State Constitution and' section 1 of the Fourteenth Amendment to the Federal Constitution and which provides, in substance, as follows: Tío State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Uor shall any State deprive any person of life, liberty or property without due process of law.’” In support of this contention appellant submits the following authorities: Section 1 of the Fourteenth Amendment to the Constitution of the United States; Amendments 5 and 6 to the Constitution of the United States; section 10, article 1 (Bill of Rights), State Constitution; section
28,
article 1, State Constitution; section 19, article 1 (Bill of Rights), State Constitution; article 438 Code of Criminal Procedure (Wilson’s Crim. Stats., p. 129); article 3 of the Penal Code; article 53 of the Penal Code; article 710 of the Penal Code; article 435 Code Criminal Procedure; article 440 Code' of Criminal Procedure; Williams v. State, 12 Crim. App., 619 to 694; Wupperman v. State; 13 Texas, 33; People v. Lee Look, 137 Cal., 590; 70 Pac. Rept., 660; Hewitt v. State, 23 Texas, 722. On this question counsel for appellant
have filed a most interesting and vigorous argument. Whatever might 'be our opinion, as an original proposition, it is sufficient to say that this very question has many times been before this court and has been frequently and decisively ruled adversely to appellant’s contention. The indictment in terms follows the form prescribed by law. White’s Code of Criminal Procedure, article 458. See also Dwyer v. State, 12 Texas Crim. App., 535; Green v. State, 27 Texas App., 244; Jackson v. State, 34 Texas Crim. Rep., 38; Drye v. State, 14 Texas Crim. App., 185; Echannon v. State, 14 Texas Crim. App., 271; Walker v. State, 14 Texas Crim. App., 609; Moore v. State, 15 Texas Crim. App., 1; Phelps v. State, 15 Texas Crim. App., 45; Sharpe v. State, 17 Texas Crim. App., 486.
3. The second assignment of error is as follows: “The court erred in giving to the jury a voluminous confused charge, which did confuse the jury and which they did not or could not understand, and therefore instead of being an instruction to them of the law applicable to the case, was but a confused mass of literature which their minds were incapable of unraveling.” This assignment is so general as to point out no error and is not such an assignment, as contained either in the motion for a new trial or in the brief, as
to
demand a review at our hands.
3. Again, it is urged that the court erred in not granting appellant’s motion for a new trial because of the newly discovered evidence of Lee Dillard and Charlotte Jackson. It is claimed in the motion that Lee Dillard, who resided in Lavaca County, Texas, if present, would testify that he was present at the time appellant shot deceased and just prior to the shooting he saw deceased come into the house and ask for a gun, and that the women whom he asked refused to tell him where it was, but that another woman near by, told him where the gun was; that he got it and started out of the house; that some one stopped the deceased at the door; that there was a tussle between these men and the gun went off; that a few minutes after the gun went off, deceased came back and started outdoors with a knife in his hand and some one stopped him and as they stopped him they said, “Don’t let him out, he has a knife in his hand;” and a little while afterwards the witness heard two shots fired and then heard1 the deceased was killed. It is also stated in his motion for a new trial that the said Dillard is- a stranger to appellant and unknown to him and that he had no knowledge that said witness knew the facts above set forth and could prove them; that this evidence of said witness, Dillard, is very material to the defense of defendant, and that he had used every effort to discover such evidence as might be of avail to him, but was unable to obtain this evidence before the trial of his cause. A new trial was- also sought, as stated, on account of the newly discovered testimony of one Charlotte Jackson, who would testify that the first she knew of any difficulty
was when deceased ran into- the house where she was seated and asked a woman unknown to her, “Where is the gun?” That this woman refused to tell him where the gun was, whereupon, another young woman told him she would tell him where it was if he would tell her what he wanted with it; he would not tell her, so she told him anyway, after he again asked where it was. After she told him where the gun was he went and got it and started outdoors when another man in the house grabbed him with the- gun, and after he got loose from this man, he just leveled the gun at those in the house and told them not to bother him, when another man, called Grady, reached from behind and grabbed him and they both went down and the gun went off. It is alleged in his motion that he was not guilty of any negligence in not obtaining this evidence before the trial of his cause, and that he did not know that these witnesses knew such facts. There is no statement of what particular diligence, if any, he used to discover the presence of these witnesses and what they knew with reference to the details of the difficulty, and we think that in the absence of some showing, that this motion should not have been granted, and this, particularly in view of the fact that substantially the same evidence was adduced from a number of other witnesses. It seems to us, in the nature of things, that appellant must have known of these witnesses, or could by the slightest diligence, have known of their presence, and, knowing this fact, reasonable diligence on his part would have discovered the nature of their testimony. In every case, civil or criminal, parties litigant should be • held to a high degree of diligence to prepare their cases for trial and to adduce the testimony on which their case will be heard and determined.
4. Again, it is urged that the court erred in refusing to- allow the defendant to introduce the witness Mat Howard and prove by him that some two or three years prior to the killing that the defendant assisted in an arrest on the charge of rape, whereby he had engendered The ill-will of certain persons' in the vicinity, who had threatened to take his life and that in consequence thereof, he had warned appellant that his life was in danger if he went out unarmed at night, but had refused to tell him from whom he was in danger for fear it might cause trouble, which said evidence was offered for the purpose of proving why appellant had a pistol on the night of the killing. It will be noted that this conversation occurred some two or three years prior to the homicide. The evidence seems to show, beyond doubt, that there had been no difficulty or ill-will between appellant and deceased before the killing at which the homicide happened, and it does not seem to us to be relevant in so far as it relates to the deceased, to make this proof, and in view of the remoteness of the time, the conviction of murder in the second degree, • and no claim, or showing of antecedent acts or preparation, that the possession of the pistol of itself was an incriminative
fact. This evidence seems to us, not to have been admissible and in any event to have had such a remote bearing on the case as not to have been important.
5. Complaint is made of the charge of the court in that same improperly submitted to the jury the issue of murder in both the first and second degree. The contention being that the evidence adduced on trial of the case did not warrant or authorize the court to charge the jury on either degree of murder, and that there was no evidence introduced on the trial of the case which would justify the submission of these issues. We think that there was probably no evidence in the record to justify the submission of the issue of murder in the first degree, but there was an acquittal of this degree of murder and this passes out of the case. We think, however, the evidence does raise the issue of murder in. the second degree. The origin of the difficulty seems to be obscure and there is some uncertainty, but the issue was distinctly made that the killing was unlawful; nor, was it' unquestionably true that it was under such circumstances as to exclude the issue of murder in the second degree. One -of the witnesses, Bichard Howard, among other things testified as follows: “When I got there I saw French Bingo and Cabe Griffin. Just as I got there Cabe Griffin went around and got in front of Bingo and they were saying something, but what they said I do not know. I do not think they were in a very good humor at the time; I do not know. I saw French draw a gun and I went up to him and told that that' would not do, and French came very near shooting the gun off, and I turned it loose. When he fired the gun off it was pointed toward Cabe. The shot went into the floor two or three steps from the door. If Cabe had a knife or pistol in his hand at that time I did not see it. When this was over I went out of the house and into the back part of the house. They ran out on the gallery. I did not go out until after the last shot. They tussled as they went out and fell to the ground. I did not see French get up until after Cabe was shot. French was Tinder* on his all-fours. Cabe was on his right hand straightening up after he was shot, but did not die right there. He walked about 15 or 20 steps from there and around the corner of the house and there he died. Cabe was shot after he straightened up. I heard the shot and saw Cabe. I got out of the house before he died. I did not hear him say anything. French went under the wire and went on home. I heard him say nothing.” It is, of course, in many eases difficult if not impossible, if the killing be conceded to be unlawful, to determine whether it is murder or manslaughter. We do not think the court in this case, Would have been justified in declining to submit the issue of murder in the second degree. It, therefore, follows that he did not err in so doing.
6. Complaint is made again of the failure of the court to give
a special charge requested by counsel for appellant on the law of self-defense as applied to the issue of reasonable expectation of death or serious bodily injury. The court gave a charge on self-defense applying same not only to actual danger, but the following charge in respect to reasonable apprehension of danger: "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said Cabe Griffin but further believe that at the time of so doing the deceased had made an attack on him which, from, the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation of fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.” We think that this charge sufficiently guarded the interest of appellant and it was not error to refuse the special instruction requested.
7. Finally it is claimed that the verdict of the jury was contrary to the law, unsupported by the evidence and without evidence to support it. We can not accede to this contention. While there was some evidence raising the issue of self-defense, and while on the whole case, it would seem to us that the killing was not above the grade of manslaughter, we do not believe that we would be justified under well settled rules, in reversing the judgment of conviction of murder in the second degree. It is therefore ordered that the judgment of the court below, be and the same is hereby in all things affirmed.
Affirmed.
[Rehearing denied.—Reporter.]