LANE, Special Judge.
This case, on change of venue, was tried in the District Court of Wichita County, and appellant was convicted of murder in the second degree; penalty, twenty years confinement in the penitentiary. This is the third appeal. The first appeal will be found in the 45 Texas Crim. Rep., 297, and the second in the 51 Texas Crim. Rep., 230. In the opinion on the first appeal, we think, will be found a sufficient statement of the case. The appellant on .former trial of the case, in the District Court of Throckmorton County, was found guilty of murder in the second degree, and his punishment assessed at twenty-five years confinement in the penitentiary.
1. It seems that a certain battered bullet, together with the pistols of appellant and deceased, and bullets taken from them, was introduced in evidence, and the first and second objections raised by appellant arise out of the action of the court in admitting in evidence the testimony of John L. Webb and C. G. Higgins, in reference to such battered bullet. The witness Webb testified on a former trial, and he having died, Webb’s testimony was reproduced by the court stenographer. Webb testified that he saw the dead body of the deceased, Tom Dixon, lying on the ground where he was killed, and knew the place where the deceased had been lying; that about one hundred and four days after deceased had been killed he was digging (Mr. Ham, Mr. Daniels and his brother, Robert, being present at the time) in the ground with his pocket-knife at the place where the head of the deceased had been lying, and when he had dug a hole with his pocket-knife about two and one-half inches deep Mr. Ham, who was squatted down on the ground watching him dig, picked the battered bullet up and laid it in the hands of- Webb; that he knows that that is the bullet that was discovered; that a bullet when fired through an object will have the appearance of this one, and sometimes a worse appearance. In this connection the State introduced O. C. Higgins,. who was a district attorney, and he testified that this battered bullet was exhibited to him
by John L. Webb in the grand-jury room in Haskell County, at the May term, 1903, of the District Court of said county, and that he took possession of it. It appears from other testimony that the deceased, Tom Dixon, was killed on the 11th of February, 1903; that he, Higgins, had in his possession the battered bullet that Webb testified about; that the pistol of appellant, as well as the pistol of the deceased, was a 44-calibre; that about two years after the killing he took from the pistol of appellant four cartridges and took three of the bullets from them; that he had weighed the bullets after they were taken from the shells; that he took a 38 and a 44 bullet from the pistol of the deceased; that a 44 cartridge will not go in a 38, but a 38 will go in and .shoot from a 44 pistol; that it is a little loose in there. That he had weighed the battered bullet testified to by John L. Webb; that it weighed 154 grains, and that the 38, without having ever been discharged, weighed 188 grains, and that the 44 weighs 204 grains; that the weighing of the bullets occurred about two years after the killing; that the back of the battered bullet is very nearly the size of a 38; that it has the appearance of being very much scarred on the face as if it had gone through the substance it had entered or gone against, and it has a faint trace of the rifle or gun; that the front has the appearance of having been melted or almost melted, and against something in ashes or sand, and does not all appear to be there. It appears from other testimony that deceased was shot twice; one shot entered in his neck -at the back of his head to the left of the spine, and went through, and came out on the right side of his face at the corner of his mustache. This wound would have produced instant death. The other wound entered the upper part of the left ear and went out to the right and back of the center of the top of the head. This was also a fatal wound. Appellant objected to the testimony of Webb because immaterial, irrelevant, incompetent, prejudicial, hearsay, and too remote, and that it offered ample opportunities to designing persons to fabricate this testimony, and were acts and declarations of third parties not in the presence of defendant. Appellant objected to the testimony of Higgins because irrelevant, incompetent, prejudicial to the right of appellant, and hearsay; that said battered bullet, before it could be introduced, must be in some way connected with or relevant to the matters at issue. The court overruled all of the above objections, and appellant excepted. Although it appears from the evidence that cattle had run over the premises where the body of deceased had lain, and was otherwise changed, yet the witness Webb testified that he knew the place where the head of the deceased had lain, and that he dug up this battered bullet from this place. And although it was one hundred and four days after the deceased was killed to the time when Webb dug up the bullet, the objections, we think, went more to the probative force of this testimony, rather than to its admissibility. The testimony bf Higgins goes to show that this battered bullet was of the same size and weight of the bullets taken by him from the pistol of ap
pellant, as well as deceased, both being 44s; and, although he weighed these bullets two years after the killing of deceased, we think these objections, like those to the testimony of Webb, goes more to the weight of the testimony than its admissibility. One of the material issues in this case was, did appellant shoot the deceased after he had fallen on the ground, and was this battered bullet at the time of the killing shot by appellant through the head of the deceased into the ground where it was subsequently found by Webb? If it was so shot at the time of the killing, it was competent and admissible. It would have been a part of the res gestae, and if not so shot, then it was inadmissible, and whether it was so shot or not, and whether it was fabricated, were questions for the jury. It is not so much the time when the bullet was first discovered that controls the competency of this evidence in regard to the bullet. It is the time when it was fired into the head of deceased by appellant (if at all) that determines that question. We do not think the court erred in overruling these objections. Hickey v. State, 51 Texas Crim. Rep., 230; Good v. State, 18 Texas Crim. App., 39.
2. The third bill of exceptions complains that the court erred in permitting the State’s witness, Baxter Fortenberry, to testify over, his objection as follows: That the witness lived in Haskell County, Texas, prior to the killing of Tom Dixon; that he was acquainted with his (Tom Dixon’s) eldest daughter, Miss Lillie Dixon, now Mrs. Lillie Self; that at the time of the killing he was married; that he went with her before he was married; that at the time of the killing he had been married about one year. “Ques. Did you have a conversation with Miss Lillie Dixon with reference to her father at any time recently before the killing? Ans. I do not know as I did anyways recently before the killing. Ques. Well, before the killing? Ans. There had been something said about it several times. Ques. Did she ever say to you that she wanted to get you to whip him? Ans. Yes, she mentioned it several times about my whipping him when I was going with her. Ques. Did she ever call him bad names ? Ans. Yes, I have heard her call him an old bearded devil, and such as that. Ques. Did you ever hear her call him a son-of-a-bitch? Ans. I do not know; I would not say positive, it has been so long. I could not keep everything down; I have heard her say first one thing and then another.” This testimony was objected to by appellant for the following reasons: First, because said testimony is immaterial; second, because the same is seeking to impeach the witness, Mrs. Lillie Self; third, it is prejudicial, being acts and statements of third parties not in the presence of the defendant; fourth, the proper predicate had not been laid for the impeachment of said Mrs. Lillie Self; fifth, it is seeking to impeach her upon an immaterial matter, and prejudicial to the rights of the defendant. We hold that this bill of exceptions is defective, because it does not appear from this bill how the testimony of the witness Fortenberry was immaterial. An objection that the evidence is imma
terial is too general and indefinite. Barfield v. State, 51 S. W. Rep., 908. Nor is the testimony of the witness Mrs. Lillie Self, the witness sought to be impeached, stated so \that this court can determine whether this testimony would impeach the testimony of Mrs. Lillie Self. Nor does it appear from the bill that appellant was not present, nor that a predicate was not laid for the impeachment of the witness Mrs. Lillie Self. This court has held that in reviewing an error set out in the bill we are confined to the bill itself. Diaz v. State, 53 S. W. Rep., 632. If there was any error in the action of the court in admitting this testimony it does not appear from this bill. (Same authority.) It is true that the bill of exceptions does state that the appellant did object to this testimony because it was immaterial, and because same was seeking to impeach the witness Mrs. Lillie Self, and that it was prejudicial, being acts and statements of third parties not in the presence of defendant, but it is also the settled rule of practice in this State that the mere statement of a ground of objection in the bill is not the certificate of the judge that the facts stated are true. Douglas v. State, 58 Texas Crim. Rep., 122, 124 S. W. Rep., 933. However, this witness was the daughter of the deceased; she was a witness for the appellant, and testified to facts and circumstances beneficial to his defense. We think that this testimony was admissible as going to show her animus toward the' deceased. The animus of a witness is a pertinent and material inquiry and is not collateral testimony.
3. The fourth bill of exceptions complains that the court erred in overruling the objection of appellant, in admitting the testimony of Mrs. Mary Jones, a State’s witness, as follows: “My name is Mary Jones. A few days before Tom Dixon, the deceased, was killed, I was in Haskell County, Texas, and at that time I saw Mrs. Tom Dixon, and was living in Haskell County then, and I suppose the defendant, Walter Hickey, was then up at the Tom Dixon place, as I saw him very often. Mrs. Tom Dixon stopped at my house about that time, and we had a conversation in reference to her separation from her husband, and I sought to persuade her not to separate from him. Q. Did she say anything in that conversation about Hickey? A. Well, I do not remember what all she said. Q. Did she, or not, say anything about the Hickeys staying with their friends? A. Yes, she did. Q. She said that? A. Yes, sir. Q. Did she put her hand up to her face and say: 'Oh, honey, it will be death?’ A. Yes, she said, 'It is death, and that isn’t long off.’ The objections made by appellant to this testimony were: First, because it is impeaching the witness on an immaterial issue. Second, because it is acts and statements of these two parties not in the presence of defendant. Third, because it is seeking to impeach her upon collateral and immaterial matter, and is prejudicial to the rights of the defendant. We hold that the above bill is defective in that the testimony of Mrs. Dixon, the witness sought to be impeached, is not stated, nor does it appear from
the bill that the defendant was not present; nor does it appear that it is seeking to impeach her upon a collateral and immaterial matter and is prejudicial to the rights of the defendant. See authorities last cited. It does not appear from this bill that Mrs. Tom Dixon was the wife of the deceased. So far as the bill informs us, she may not have been the wife of the deceased, Tom Dixon. Besides, this testimony was admissible, in view of Mrs. Dixon’s testimony, to show interest, bias and her hostility to the deceased and to the State.
4. The fifth bill of exceptions complains of the action of the court in permitting the State, upon cross-examination, and over the objection of appellant, to ask appellant’s witness, Mrs. Amanda Dixon, the following question: “Is it not a fact that you knew that your husband was going to be killed?” to which question she answered, “No.” This is urged as error. It does not appear from the bill that Mrs. Amanda Dixon was the wife of deceased. We do not see how the asking of this question and her answering in the negative could have been so prejudicial to the rights of appellant as to require a reversal of the case. Warthan v. State, 41 Texas Crim. Rep., 385, 55 S. W. Rep., 55. But questions of this kind should not be asked. Drake v. State, 29 Texas Crim. App., 265.
5. The sixth bill of exceptions of appellant complains of the action of the court in permitting the State, upon cross-examination of appellant’s witness Mrs. Lillie Self (nee Miss Lillie Dixon), and over the objections of appellant, to ask the following questions and elicit the following answers: “Q. Is it not a fact that you tried to get Baxter Fortenberry to whip your father? A. No. Q. And is it not a further fact that you called your father an old devil and red-headed son-of-a-bitch? A. No.” As before stated, this witness was the daughter of the deceased, and had testified to facts beneficial to appellant, and this appears to us as legitimate cross-examination by the State for the purpose of showing an unfriendly feeling, if any, of the witness toward the deceased, who was her father. Suppose this witness had answered “yes” to the above questions. It would have shown her feeling toward her father, the deceased. However, she answered “no,” and if error (which we do not hold), it is not sufficient to require this case to be reversed. Warthan v. State, 41 Texas Crim. Rep., 385, 55 S. W. Rep., 55.
6. The seventh bill of exceptions complains of the language of the district attorney in his argument. The language is as follows: “Six years have elapsed since the commission of this crime, and the defendant is in this courtroom a free man and walks your streets a free man. The record shows that witnesses who testified in this case in its early stages have passed over the river. The records do not disclose the result of the former trials, but whatever they were, they were failures.” This bill states that the defendant excepted to this language and his exception was overruled by the court, and the district attorney permitted to use said language, and the court refused to instruct the
jury not to disregard the same; but the court qualified the bill by stating that no charge was asked or refused. The record shows that six years have elapsed since the homicide, and that at least one of the witnesses who testified in the ease in its early stages had died, and that there had been former trials. The only thing stated by the district attorney that appears to be outside of the record is the statement that “defendant is in this courtroom a free man and walks your streets a free man,” and that the former trials were “failures.” We do not believe the use of the above language by the district attorney is such a violation of the right of argument as to cause a reversal of this case. However, it will be seen from the qualification of the bill by the judge that no charge was asked or refused. This being the case, this court has held that the proper practice would require that a written charge should be asked and refused before this court would make the illegitimate argument the basis of a reversal, and before this court would interfere it must be shown that there was a very gross violation of the right of legitimate argument, and that such violation was calculated to injure or impair appellant’s rights. Warthan v. State, 41 Texas Crim. Rep., 385, 55 S. W. Rep., 55.
7. Appellant complains in the eighth ground of his motion for new trial of that part of the charge of the court as follows: “How, if you believe from the evidence beyond a reasonable doubt that the defendant, Walter Hickey, in the county of Haskell and State of Texas, did on or about the time alleged in the indictment, with a deadly weapon, or instrument reasonably calculated or likely to produce death by the mode or manner of its use, in a sudden transport of passion aroused without adequate cause, as the same will hereinafter be explained to you, and not in defense of himself against an unlawful attack producing a reasonable fear or expectation of death or serious bodily injury, with intent to kill, did unlawfully shoot Tom Dixon with a pistol, and did thereby kill Tom Dixon, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for any term of years not less than five.” The complaint to this charge, as we understand it, is that there is no evidence showing that appellant, in a sudden transport of passion, aroused without adequate cause, killed the deceased. This charge certainly would have been correct if there had been evidence going to show that appellant shot deceased in a sudden transport of passion, without adequate cause. Clark v. State, 56 Texas Crim. Rep., 293, 120 S. W. Rep., 180. The evidence on the part of the State did show an unlawful killing of deceased by appellant. Then if there was no evidence showing that appellant killed deceased in a sudden transport of passion, without adequate cause, it can also be said that there is no evidence showing that appellant killed deceased under the immediate influence of sudden passion arising from an adequate cause. The court instructed the jury correctly upon the law of manslaughter. The defendant plead self-defense, but the jury found
against him upon this plea. The defendant has heretofore been convicted of murder in the second degree, which was an acquittal of murder in the first degree. Then this case presents itself in this way: The jury, under the instructions of the court, might have found appellant guilty of manslaughter, but did not do so. The appellant plead self-defense, and explained in detail the killing, which explanation showed a complete case of self-defense, but the jury did not accept his statement as to how he killed deceased; then if there was no manslaughter and no self-defense in the case, there being no eyewitness but appellant, we have a case in which deceased was killed by appellant, and, as far is the State is concerned, such killing is unexplained. Then, if appellant unlawfully killed the deceased, and there was no circumstance in evidence which tended to mitigate, excuse or justify the act, then the law implies malice, and the offense is murder in the second degree. In the case of Connell v. State, 81 S. W. Rep., 748, which was a case in which the appellant had been convicted of murder in the second degree and the case had been reversed, this court on the second appeal said: “Here the jury were instructed that malice 'aforethought/ as applied to murder in the second degree, includes all those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide.” Then if murder in the second degree includes all of those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide, then it follows that when the court narrowed the State’s case down to that state of mind of a sudden transport of passion, aroused without adequate cause, such charge was too restrictive of the rights of the State, and if error, it was in favor of appellant, and under article 723 of the Code of Criminal Procedure we can not, on account of such error, reverse this case.
8. Appellant complains of the charge on self-defense, which is as follows: “If from the evidence you believe the defendant killed the said Tom Dixon, but further believe at the time of so doing the deceased had made an attack on him which, from the manner and character of it, and the defendant’s knowledge of the character and disposition of deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury,” etc. The complaint raised to this charge is that there is no evidence of the defendant’s knowledge of the character and disposition of the deceased. The evidence in this case showed that appellant had known deceased all of his life, except that he had not seen him for eight years previous to this visit to the home of deceased; that he had stayed, on this visit, at the home of the deseased for about two weeks before the killing; that appellant and deceased during this two weeks were together .pretty regularly, unless it was when appellant was on the road with an organ. In this there was no error.
9. Complaint is also made to the charge of the court wherein the
court charged the jury as follows: “You are instructed that you can not and must not consider the testimony of the witness Fortenberry as to what he testified, as to that which the witness, Lillie Self, stated to him in regard to her father, Tom Dixon, deceased, as any evidence against the defendant, but may be considered by you only insofar as it may affect the credibility of Mrs. Lillie Self’s testimony, if in your opinion it does do so.” Appellant objects to this charge because the same is upon the weight of the testimony; that it instructs the jury to consider said testimony upon the credibility of the witness Mrs. Self; that it assumes that the witness Mrs. Lillie Self made the statement to Baxter Fortenberry. Mrs. Lillie Self was a witness for the defendant, and testified to facts beneficial to his defense. This witness on cross-examination testified that she was not mad with her father. “I never tried to get Baxter Fortenberry to whip my father. It is not a fact that prior to that time, on one occasion when Baxter Fortenberry was there, I spoke vilely of my father, called him an old son-of-a-bitch, and wanted to get him to whip him. I never at any time abused my father or said anything unkind of him.” Baxter Fortenberry testified for the State that he knew Miss Lillie Dixon (now Mrs. Lillie Self) : “She had mentioned several times about my wdiipping her father when I was going with her; I have heard her call him an old bearded devil, and such as that; I would not be positive about her calling him- an old son-of-a-bitch; I have heard her say first one thing and then another.” It will be perceived from the above statement that the witness Mrs. Lillie Self did not state any fact incriminating the appellant. It is simply a case in which the State introduced evidence for the purpose of impeaching appellant’s witness without proof that the witness sought to be impeached had made statements incriminative of appellant. This court has held that when it is apparent that the testimony of the impeaching witness can be used for no other purpose than that of impeachment, it is not necessary for the court to limit the purpose of the same in its charge. Wilson v. State, 37 Texas Crim. Rep., 373, 39 S. W. Rep., 373. Although the court did restrict the testimony of the witness Fortenberry to the impeachment of the witness Mrs. Lillie Self, under the above authority the court was not compelled to do so, and yet, as the testimony of Fortenberry could have been used by the jury for no other purpose than impeachment, we do not see how appellant was injured by such action of the court in so restricting the testimony of said Fortenberry.
10. Appellant also complains of the following portion of the court’s charge: “You are instructed that you can not and must not consider the testimony of the witness Mary Jones as to what she testified to, what Mrs. Tom Dixon said to her, as any evidence against the defendant, but may be considered by you only insofar as it may affect the credibility of Mrs. Tom Dixon, if, in your opinion, it does so.” Appellant excepted to said charge because it instructs the jury to con
sider said testimony upon the credibility of the witness Mrs. Jones, and because it assumes that the witness Mary Jones made the statement to Mrs. Tom Dixon as testified to. Mrs. Tom Dixon, witness for appellant and wife of deceased, on cross-examination testified as follows: “I know Mary Jones; she lived over west about a mile at that time, I think. I had passed her house a few days before this (the killing) . I was on my way up to the store, and was passing, and stopped. I do not remember that I was in the house and stayed there; it is not a fact that we said anything about my division of any.property; I talked with her about the separation. I do not remember her trying to persuade me not to separate from my husband; she knew that Walter Hickey was there without my telling; I do not remember of talking to her about it. Q. And didn’t you in that connection with Walter Hickey’s name put your face in your hands and say: ‘Oh, honey, it is going to be death.’ A. I never said such a thing at all, I know.- I never said anything about Mr. Dixon’s death, I know, because I did not know anything about it.” The witness for the State, Mary Jones, contradicted the above testimony of Mrs. Tom Dixon. The court did not err in giving the above charge restricting the testimony of the witness Mary Jones to the impeachment of Mrs. Tom Dixon. Where evidence for the purpose of impeaching a witness is introduced, which is calculated to be unduly used by the jury for some other purpose than as impeaching testimony, then the court in his charge must limit such testimony to the purpose for which it was introduced. Wilson v. State, 37 Texas Crim. Rep., 373, 39 S. W. Rep., 373. We do not think that the court committed error in this portion of its charge.
11. Appellant complains at the action of the court in refusing to give at his request the following instruction: “You are charged that if you believe from the evidence beyond.a reasonable doubt that the defendant is guilty of murder in the first degree (as murder in the first degree has heretofore in the court’s general charge been defined to you), and you further believe that the facts and circumstances in evidence do not show that the defendant is guilty of murder in the second degree (as murder in the second degree is defined in the court’s general charge), and if you so believe you will find the defendant not guilty, and so say by your verdict.” On the authority of the ease of Burnett v. State, 53 Texas Crim. Rep., 515, 112 S. W. Rep., 74, and Cornelius v. State, 54 Texas Crim. Rep., 173, 112 S. W. Rep., 1050, we hold that the court did not err in refusing the first portion of said charge, and so far as the second part of said charge is concerned, the court had already instructed the jury that if they had a reasonable doubt that appellant was guilty of murder in the second degree they would acquit him.
12. Appellant complains at the action of the court in overruling his motion for new trial because, he says, the verdict of the jury is .contrary to the law and the evidence.. It appears from the record in this case that appellant has been tried five times, in three, at least, of
which a conviction of appellant resulted. In one appellant was convicted of murder in the first degree and in two he was convicted of murder in the second degree. There were two theories presented at the trial. That of the State was that appellant was guilty, at least, of murder in the second degree. The theory of appellant was self-defense. The jury accepted the theory of the State and convicted appellant of murder in the second degree, which, to our minds, there was evidence to support the verdict of the jury, and wé therefore can not interfere with their action. The judgment is, therefore, in all things affirmed.
Affirmed.
Davidson, Presiding Judge, dissents.