HEHDEBSOH, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
Appellant and deceased were brothers-in-law, and a state of unfriendly feeling had existed between them for a month prior to the killing. It appears that before defendant married his wife, who was a sister of the deceased’s wife, she had been engaged to a brother of the deceased, and after her marriage with the defendant deceased entertained ill feeling towards him. About a month before the homicide appellant came to the house of deceased, and attempted to drive a cow out of the lot of the deceased to his' (defendant’s) own house.. The cow had previously been loaned to deceased’s wife by her father. Appellant claimed that he had been authorized by J. F. Phillips, his father-in-law, to come and get the cow. When he first came after the cow the wife of the deceased inter
fered with his driving the cow out of the lot, and in the meantime deceased came up and prevented appellant driving the cow away. At that time appellant started to draw a pistol on the deceased, remarking to Mrs. House, the wife of the deceased, that he would kill deceased some day when she was not present. The killing occurred at the gin of one Faranthold, situated in the neighborhood, between 4 and 5 o’clock in the evening. Deceased and Wemken were sitting in the gin house on a box, whittling with their pocket knives. It appears, however, from the State’s testimony, that deceased at the time of the difficulty had closed Ms pocket knife and placed it in his pocket. Appellant approached the parties and stood in front of them, about ten or twelve feet, and said something which some of the witnesses did not understand. One witness, however., states that he struck himself in the breast or side, and said, “There is shucks here.” Wemken remarked to him that somebody would whip him if he did not mind. Defendant replied, “Let them try it.” Deceased thereupon got up, and asked if he meant him or had anything against him. Appellant said, “Yes,” and pulled his pistol and shot, one shot tak-' ing effect in his breast and the other in his leg.
The theory of the State was that the homicide was, at least, murder in the second degree, and that of the defendant that it was a killing in self-defense. The State proved by three witnesses that deceased was sitting down in the gin talking to Wemken, and appellant approached them; that he made some remark, as stated above, to them, and deceased got up and started towards the defendant, and when he got to or near him deceased shot him down. All these witnesses concur in stating that deceased had no knife in his hand. These and other witnesses show that he had a knife closed in his pocket after he was killed. Appellant testified that he went into the gin room, where deceased and Wemken were sitting down whittling with their knives; that he walked up near them, and Wemken said to him, “Somebody is going to whip you to-day;” and appellant said, “Well, if anybody thinks they can whip me, just let them try.” Then House sprang up with a knife in his hand, and said, “You son of a bitch, you meant that for me.” Appellant said, “God damn you, if you want to take it that way.” "House came towards appellant, and he said, “Stop, damn you, or I will kill you.” Then House grabbed defendant by his collar with his left hand, but he knocked his hand loose, sprang back, and fired, and House fell on his knees. The State proved by two witnesses threats made by defendant at the gin against the deceased on that evening, a very short time before the homicide. Bellamy states that “defendant approached him at the gin, and said, H see House is here;’ and I said to defendant in the talk, ‘You will monkey around some big man, and you will get the piss stamped out of you.’ Then defendant said, ‘I wish House would try this once; I would do him up.’ ” Wemken said that defendant had approached him a short time before the homicide, and remarked to him, “I see House is here;” to which witness replied, “Yes.” Defendant said, “I am going to whip him.” Witness
said, “Oh, no, you won’t;” that he did not think the defendant meant what he said, as he appeared to he joking. This is substantially the testimony as to the killing.
On the trial the State was permitted to prove by the witness Frank Ermis that defendant came to his store, which was a few miles from the gin, on the evening of the killing, and called for his account; that he settled the same, and he heard the defendant say, “I will kill the God damn son of a bitch, and be in Mexico before morning;” that he did not know who defendant was talking to or about; that was all he heard; that defendant left shortly afterwards, and went the road leading towards his (defendant’s) house, beyond the gin. Appellant objected to this testimony, because there was nothing in the remark to show that he had reference to the deceased; that the threat could only be admitted to show malice against House, and throw light on the defendant’s action towards House, and defendant’s subsequent action could not revert back to his threat, and color it, and make it admissible,. The objections were overruled, and the evidence admitted. We discussed the doctrine with reference to this character of testimony in Godwin v. State, 38 Texas Criminal Eeports, 466, and we there laid down the rule, in accordance with the authorities, that general threats, not directed by name to the individual killed, and not shown by other testimony to have been directed towards him or having embraced him, were not admissible. It occurs to us, however,' from the other testimony in this case, that, notwithstanding deceased was not named in connection with the threats, it can be reasonably inferred that the threats were directed against him. Appellant was shown to have had malice against him, and he is not shown to have entertained hostile feelings towards any other person in the community. It appears that he went straightway from the place where these threats were made to the place where the homicide occurred, and there he met and slew the deceased. It is also shown by the testimony of other witnesses that just prior to the homicide he made threats directed against the deceased. Concede, however, that the threats here were not, admissible because there was no individuation of the deceased, yet we fail to see how it injured appellant. They were introduced, no doubt, for the purpose of showing express malice against the deceased, and so to characterize the killing as murder in the first degree. The jury, however, found appellant guilty of murder in the second degree, and assessed against him the lowest penalty for that offense. Hnder the theory of the State, appellant could not have been guilty of a less grade of offense than murder in the second degree, and the evidence evidently did not increase his punishment.
Appellant’s wife was introduced on his behalf, and she testified that the feelings of the deceased, House, towards the defendant, Holley, were unfriendly. Defendant then asked her to state what she had heard House say, if anything, about her husband, Holley. The State objected, and the court sustained the objection. Appellant proposed to prove by this
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HEHDEBSOH, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
Appellant and deceased were brothers-in-law, and a state of unfriendly feeling had existed between them for a month prior to the killing. It appears that before defendant married his wife, who was a sister of the deceased’s wife, she had been engaged to a brother of the deceased, and after her marriage with the defendant deceased entertained ill feeling towards him. About a month before the homicide appellant came to the house of deceased, and attempted to drive a cow out of the lot of the deceased to his' (defendant’s) own house.. The cow had previously been loaned to deceased’s wife by her father. Appellant claimed that he had been authorized by J. F. Phillips, his father-in-law, to come and get the cow. When he first came after the cow the wife of the deceased inter
fered with his driving the cow out of the lot, and in the meantime deceased came up and prevented appellant driving the cow away. At that time appellant started to draw a pistol on the deceased, remarking to Mrs. House, the wife of the deceased, that he would kill deceased some day when she was not present. The killing occurred at the gin of one Faranthold, situated in the neighborhood, between 4 and 5 o’clock in the evening. Deceased and Wemken were sitting in the gin house on a box, whittling with their pocket knives. It appears, however, from the State’s testimony, that deceased at the time of the difficulty had closed Ms pocket knife and placed it in his pocket. Appellant approached the parties and stood in front of them, about ten or twelve feet, and said something which some of the witnesses did not understand. One witness, however., states that he struck himself in the breast or side, and said, “There is shucks here.” Wemken remarked to him that somebody would whip him if he did not mind. Defendant replied, “Let them try it.” Deceased thereupon got up, and asked if he meant him or had anything against him. Appellant said, “Yes,” and pulled his pistol and shot, one shot tak-' ing effect in his breast and the other in his leg.
The theory of the State was that the homicide was, at least, murder in the second degree, and that of the defendant that it was a killing in self-defense. The State proved by three witnesses that deceased was sitting down in the gin talking to Wemken, and appellant approached them; that he made some remark, as stated above, to them, and deceased got up and started towards the defendant, and when he got to or near him deceased shot him down. All these witnesses concur in stating that deceased had no knife in his hand. These and other witnesses show that he had a knife closed in his pocket after he was killed. Appellant testified that he went into the gin room, where deceased and Wemken were sitting down whittling with their knives; that he walked up near them, and Wemken said to him, “Somebody is going to whip you to-day;” and appellant said, “Well, if anybody thinks they can whip me, just let them try.” Then House sprang up with a knife in his hand, and said, “You son of a bitch, you meant that for me.” Appellant said, “God damn you, if you want to take it that way.” "House came towards appellant, and he said, “Stop, damn you, or I will kill you.” Then House grabbed defendant by his collar with his left hand, but he knocked his hand loose, sprang back, and fired, and House fell on his knees. The State proved by two witnesses threats made by defendant at the gin against the deceased on that evening, a very short time before the homicide. Bellamy states that “defendant approached him at the gin, and said, H see House is here;’ and I said to defendant in the talk, ‘You will monkey around some big man, and you will get the piss stamped out of you.’ Then defendant said, ‘I wish House would try this once; I would do him up.’ ” Wemken said that defendant had approached him a short time before the homicide, and remarked to him, “I see House is here;” to which witness replied, “Yes.” Defendant said, “I am going to whip him.” Witness
said, “Oh, no, you won’t;” that he did not think the defendant meant what he said, as he appeared to he joking. This is substantially the testimony as to the killing.
On the trial the State was permitted to prove by the witness Frank Ermis that defendant came to his store, which was a few miles from the gin, on the evening of the killing, and called for his account; that he settled the same, and he heard the defendant say, “I will kill the God damn son of a bitch, and be in Mexico before morning;” that he did not know who defendant was talking to or about; that was all he heard; that defendant left shortly afterwards, and went the road leading towards his (defendant’s) house, beyond the gin. Appellant objected to this testimony, because there was nothing in the remark to show that he had reference to the deceased; that the threat could only be admitted to show malice against House, and throw light on the defendant’s action towards House, and defendant’s subsequent action could not revert back to his threat, and color it, and make it admissible,. The objections were overruled, and the evidence admitted. We discussed the doctrine with reference to this character of testimony in Godwin v. State, 38 Texas Criminal Eeports, 466, and we there laid down the rule, in accordance with the authorities, that general threats, not directed by name to the individual killed, and not shown by other testimony to have been directed towards him or having embraced him, were not admissible. It occurs to us, however,' from the other testimony in this case, that, notwithstanding deceased was not named in connection with the threats, it can be reasonably inferred that the threats were directed against him. Appellant was shown to have had malice against him, and he is not shown to have entertained hostile feelings towards any other person in the community. It appears that he went straightway from the place where these threats were made to the place where the homicide occurred, and there he met and slew the deceased. It is also shown by the testimony of other witnesses that just prior to the homicide he made threats directed against the deceased. Concede, however, that the threats here were not, admissible because there was no individuation of the deceased, yet we fail to see how it injured appellant. They were introduced, no doubt, for the purpose of showing express malice against the deceased, and so to characterize the killing as murder in the first degree. The jury, however, found appellant guilty of murder in the second degree, and assessed against him the lowest penalty for that offense. Hnder the theory of the State, appellant could not have been guilty of a less grade of offense than murder in the second degree, and the evidence evidently did not increase his punishment.
Appellant’s wife was introduced on his behalf, and she testified that the feelings of the deceased, House, towards the defendant, Holley, were unfriendly. Defendant then asked her to state what she had heard House say, if anything, about her husband, Holley. The State objected, and the court sustained the objection. Appellant proposed to prove by this
witness the following declarations of House against her husband, to wit r “The deceased frequently upbraided me for not marrying his brother,, and for marrying my husband, the defendant, who he said was a damn rascal; that he hated him on account of his marrying me, and taking my ducks to such a poor market; that if he got a chance he would make it hot for him, the little cur; that she told her husband of this feeling of House towards him, and warned him to beware of House.” The court explains his refusal to admit this testimony as follows: “That he permitted the witness to state that the deceased entertained unfriendly feelings towards her husband, but declined to permit appellant to prove the-details of what deceased said about her husband, unless the witness heard the deceased make a threat against her husband; and defendant’s counsel replied that they did not expect to prove any threat against the defendant’s life.” ' So that it would appear that the court was not placed in possession of this testimony at the time, if it be insisted that it contains a threat against the life of defendant. As merely the details of a conversation expressing the animosity of the deceased towards appellant, we do not think it was admissible. The fact that the deceased did entertain such unfriendly feelings was admissible, and same was admitted by the court. The expression attributed by the witness to deceased, “that if he got a chance he would make it hot for him, the little cur,” might indicate some sort of conditional threat, but it was not a threat to take life. At least, it does not appear to have been so considered by the counsel of appellant, who proposed to introduce the testimony. More than this, there was no act of appellant, even if it be regarded that this was a threat to-take life, that same would have served the purpose of rendering it more potent; and, if appellant had the right of self-defense at all, he had it regardless of this threat. All of the witnesses testify that deceased was advancing on the appellant when he was shot; and the threat, if it be construed that it was a threat, would not render the action of the deceased any more significant than it appeared, without being coupled with such language.
We do not think there is anything in the contention of appellant that he was compelled to give testimony against himself in contravention of the bill of rights. He made a voluntary witness of himself, and took the stand, and it has been repeatedly held by this court that under such circumstances he stands in the attitude of any other witness, and subject to the same rigid rules of cross-examination. Besides this, it is not shown what the answers of the defendant to the questions would have been, save that he would have answered them affirmatively. Now, the fact that he would have testified to the questions propounded in said bill of exceptions in the affirmative does not indicate to us that said answers were injurious to appellant. Said questions were as follows: “Did you not talk with A. N. Bellamy, a witness for the State, at the gin near the gate-about House?” The answer of the witness to this question would have been, “Yes.” Again, “Did you not see House there?” He would have answered “Yes” to this. “Did you not talk to John Wemken near the-
gate of the gin yard some minutes prior to the trouble ?” He would have answered “Yes” to this. How, these simple affirmative answers to these questions utterly fail to indicate how said answers could have possibly injured appellant. We have examined the record carefully, and, in our opinion, the evidence sustains the verdict, and the judgment is affirmed.
Affirmed.
Hurt, Presiding Judge, absent.