MARTIN, Judge.
— Offense, murder; penalty, fifty years.
Antecedent ill feelings existed between appellant and deceased, Jack Kimbell, due to the alleged intimate relations existing between appellant and the wife of deceased. On the day of the tragedy a difficulty ensued between deceased and his two brothers on one side and appellant on the other in which appellant was severely beaten and bruised. Going immediately to his place of business a short distance away after this difficulty, appellant returned at once with a rifle and shot and killed deceased.
Appellant claims he was struck by deceased on the head with brass knucks during the difficulty above mentioned, which raised an issue of the presumption arising from the use of a deadly weapon by deceased under Art. 1223, P. C. The refusal of a special charge properly presenting this matter is assigned as error. The language of Art. 1223 is as follows:
“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”
This is part of the law of justifiable homicide in Texas, and the language “when the homicide takes place to prevent murder * * * if the weapon or means used by the party attempting or committing such murder,” etc., evidences plainly that the weapon must be actually
used
or attempted to be used in some way and that the homicide took place to prevent its use or attempted use.
The evidence shows the appellant after his return with a rifle stood at a distance of about 80 feet from deceased and shot him, and there was no testimony that deceased was then using or attempting to use brass knucks or that appellant thought he was, and shot to prevent such use or threatened use. On the other hand appellant testified:
“When I raised the gun to stop them they scattered. Jack ran to my left and the others to my right. * * * I had very much fear of being shot from this direction and also from that direction. * * *
When he (deceased) came out from behind the automobile he just started on the sidewalk. * * * There were iron columns and brick columns in front of the building. * * * If Jack Kimbell had gotten behind a column over there I could not have protected myself at all from both sides.”
This is sufficient to show he feared being shot and that he had no reasonable grounds for a fear at the time of death or serious bodily injury from the use or threatened use of brass knucks.
A discussion of the place Art. 1223, P. C, occupies in the law of self-defense will be found in the recent case of Forrester v. State, 4 S. W. (2d) 966, the reasoning of which will illustrate in some measure the issue in this case. The cases of Jones v. State, 17 Tex. Crim. App. 612; Kendall v. State, 8 Tex. Crim. App. 569; Cooper v. State, 48 Tex. Crim. Rep. 36; Hudson v. State, 59 Tex. Crim. Rep. 650, in their reasoning and statement of the rule of law on the question under discussion sustain our holding, we think, that the trial court’s action in the instant case was correct.
The deceased filed a damage suit against appellant for alienation of his wife’s affections a short time before the tragedy, and had citation served upon him. Copy of this citation so served was introduced by the State in evidence to show motive and its purpose was so limited in the Court’s charge. Many objections were urged to its introduction, particularly that it was res inter alios acta. This citation among other things charges appellant with corrupting his wife, causing her to sue deceased for divorce, and of alienating her affections for deceased. The bill of exception presenting this matter must be appraised in its relation to the entire record. There are some apparent differences in the authorities on this question, due perhaps to differences in the proven facts to which such a question relates.
Mr. Underhill says:
“The papers in a prior litigation, civil or criminal, instigated by the deceased against the 'accused or in which he was a witness * * * are admissible against the accused to show motive.” Underhill’s Criminal Evidence, Third Edition, Sec. 503, p. 719.
The papers in an injunction proceeding were held admissible in the case of Turner v. State, 33 Tex. Crim. Rep. 110. See also Hudson v. State, 28 Tex. Crim. App. 340; Robinson v. State, 16 Tex. Crim. App. 354.
On the other hand, we find the following language in the case of Pinckord v. State, 13 Tex. Crim. App. 478:
“All the proceedings, including the petition, judgment, etc., in a suit wherein defendant’s wife had sued and obtained a decree of divorce from him were read by the prosecution in evidence to the jury. As a. fact tending to show the feelings and relations of the parties to each other, it was doubtless legitimate to prove that the wife had instituted suit for a divorce prior to, and that the same was pending at, the time it was alleged the crime charged against defendant was committed. But it was error to permit the allegations of her petition for divorce to be read and go as evidence to the jury, and especially so without any explanation or instruction as to how far and for what purpose they were alone to be considered.”
There was apparently no issue upon which the entire divorce proceedings were admissible in this case.
One of the State’s theories was in this case that appellant killed Jack Kimbell because he didn’t want to meet deceased on the issues shown in this citation in a public trial, and to rid himself both of the trial and the danger of a judgment he seized the opportunity to kill deceased; that as evidence of this one of deceased’s brothers was the real aggressor, but appellant took his gun off the brother whom he had no motive to kill and shot deceased as he ran away from him. There was also much testimony offered without objection of improper relations between the wife of deceased and appellant. It was ■ proven and admitted as true by appellant that the two were caught alone in a hotel room together in the City of Dallas registered under the name of J. Stevens and wife. The damage suit followed this hotel episode.
The allegations contained in such a suit are naturally of a character that they should not be admitted unless it clearly appears they tend to help solve some issue and not even then without some limitation, if requested, of their use as evidence by the jury.
In this case the Court instructed the jury as follows:
“Now, I instruct you that said citation and the statements and allegations therein contained is no evidence of the truth of said statements or allegations, and I instruct you that if you consider said evidence, for any purpose at all, you will only consider it for the purpose of aiding you, if it does aid you, in determining the motive, if any, with which the defendant acted at the time the said Jack Kimbell was killed, if he was, and for no other purpose.”
In view of the State’s theory and evidence as to motive and the above charge and measured in its relation to the entire record, we
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MARTIN, Judge.
— Offense, murder; penalty, fifty years.
Antecedent ill feelings existed between appellant and deceased, Jack Kimbell, due to the alleged intimate relations existing between appellant and the wife of deceased. On the day of the tragedy a difficulty ensued between deceased and his two brothers on one side and appellant on the other in which appellant was severely beaten and bruised. Going immediately to his place of business a short distance away after this difficulty, appellant returned at once with a rifle and shot and killed deceased.
Appellant claims he was struck by deceased on the head with brass knucks during the difficulty above mentioned, which raised an issue of the presumption arising from the use of a deadly weapon by deceased under Art. 1223, P. C. The refusal of a special charge properly presenting this matter is assigned as error. The language of Art. 1223 is as follows:
“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”
This is part of the law of justifiable homicide in Texas, and the language “when the homicide takes place to prevent murder * * * if the weapon or means used by the party attempting or committing such murder,” etc., evidences plainly that the weapon must be actually
used
or attempted to be used in some way and that the homicide took place to prevent its use or attempted use.
The evidence shows the appellant after his return with a rifle stood at a distance of about 80 feet from deceased and shot him, and there was no testimony that deceased was then using or attempting to use brass knucks or that appellant thought he was, and shot to prevent such use or threatened use. On the other hand appellant testified:
“When I raised the gun to stop them they scattered. Jack ran to my left and the others to my right. * * * I had very much fear of being shot from this direction and also from that direction. * * *
When he (deceased) came out from behind the automobile he just started on the sidewalk. * * * There were iron columns and brick columns in front of the building. * * * If Jack Kimbell had gotten behind a column over there I could not have protected myself at all from both sides.”
This is sufficient to show he feared being shot and that he had no reasonable grounds for a fear at the time of death or serious bodily injury from the use or threatened use of brass knucks.
A discussion of the place Art. 1223, P. C, occupies in the law of self-defense will be found in the recent case of Forrester v. State, 4 S. W. (2d) 966, the reasoning of which will illustrate in some measure the issue in this case. The cases of Jones v. State, 17 Tex. Crim. App. 612; Kendall v. State, 8 Tex. Crim. App. 569; Cooper v. State, 48 Tex. Crim. Rep. 36; Hudson v. State, 59 Tex. Crim. Rep. 650, in their reasoning and statement of the rule of law on the question under discussion sustain our holding, we think, that the trial court’s action in the instant case was correct.
The deceased filed a damage suit against appellant for alienation of his wife’s affections a short time before the tragedy, and had citation served upon him. Copy of this citation so served was introduced by the State in evidence to show motive and its purpose was so limited in the Court’s charge. Many objections were urged to its introduction, particularly that it was res inter alios acta. This citation among other things charges appellant with corrupting his wife, causing her to sue deceased for divorce, and of alienating her affections for deceased. The bill of exception presenting this matter must be appraised in its relation to the entire record. There are some apparent differences in the authorities on this question, due perhaps to differences in the proven facts to which such a question relates.
Mr. Underhill says:
“The papers in a prior litigation, civil or criminal, instigated by the deceased against the 'accused or in which he was a witness * * * are admissible against the accused to show motive.” Underhill’s Criminal Evidence, Third Edition, Sec. 503, p. 719.
The papers in an injunction proceeding were held admissible in the case of Turner v. State, 33 Tex. Crim. Rep. 110. See also Hudson v. State, 28 Tex. Crim. App. 340; Robinson v. State, 16 Tex. Crim. App. 354.
On the other hand, we find the following language in the case of Pinckord v. State, 13 Tex. Crim. App. 478:
“All the proceedings, including the petition, judgment, etc., in a suit wherein defendant’s wife had sued and obtained a decree of divorce from him were read by the prosecution in evidence to the jury. As a. fact tending to show the feelings and relations of the parties to each other, it was doubtless legitimate to prove that the wife had instituted suit for a divorce prior to, and that the same was pending at, the time it was alleged the crime charged against defendant was committed. But it was error to permit the allegations of her petition for divorce to be read and go as evidence to the jury, and especially so without any explanation or instruction as to how far and for what purpose they were alone to be considered.”
There was apparently no issue upon which the entire divorce proceedings were admissible in this case.
One of the State’s theories was in this case that appellant killed Jack Kimbell because he didn’t want to meet deceased on the issues shown in this citation in a public trial, and to rid himself both of the trial and the danger of a judgment he seized the opportunity to kill deceased; that as evidence of this one of deceased’s brothers was the real aggressor, but appellant took his gun off the brother whom he had no motive to kill and shot deceased as he ran away from him. There was also much testimony offered without objection of improper relations between the wife of deceased and appellant. It was ■ proven and admitted as true by appellant that the two were caught alone in a hotel room together in the City of Dallas registered under the name of J. Stevens and wife. The damage suit followed this hotel episode.
The allegations contained in such a suit are naturally of a character that they should not be admitted unless it clearly appears they tend to help solve some issue and not even then without some limitation, if requested, of their use as evidence by the jury.
In this case the Court instructed the jury as follows:
“Now, I instruct you that said citation and the statements and allegations therein contained is no evidence of the truth of said statements or allegations, and I instruct you that if you consider said evidence, for any purpose at all, you will only consider it for the purpose of aiding you, if it does aid you, in determining the motive, if any, with which the defendant acted at the time the said Jack Kimbell was killed, if he was, and for no other purpose.”
In view of the State’s theory and evidence as to motive and the above charge and measured in its relation to the entire record, we
do not believe.the bill of exception presenting this matter shows error.
Complaint is made of the charge quoted above limiting the use of the citation as evidence by the jury. The claim is made that same is on the weight of the evidence. The Court qualifies appellant’s bill presenting this matter with the statement that defendant in his exception to the Court’s charge stated that said testimony should be limited in the charge. We do not think the charge is upon the weight of the evidence. The charge in the instant case, we think, is clearly distinguishable from those found in the cases of Terry v. State, 45 Tex. Crim. Rep. 272; Pannell v. State, 54 Tex. Crim. Rep. 499; and Yancey Story v. State, 107 Tex. Crim. Rep. 266, which are cited by appellant as sustaining his views. Apparently the appellant had asked for a limitation of this evidence and it was limited by the Court specifically to proof of motive, although it also may have tended to show malice. This omission, however, was not prejudicial to the appellant.
. It ordinarily is not necessary to limit testimony which goes to prove a main issue in the case. Leeper v. State, 29 Tex. Crim. Rep. 69; Branch’s P. C., Sec. 1885. But where it may be wrongfully appropriated by the jury to prove guilt it is always best especially when requested to limit it in such way as to prevent its wrongful use by the jury. Kelley v. State, 18 Tex. Crim. App. 269; Branch’s P. C., p. 120.
Bills of exception appear in the record relating to the conduct and questions of the District Attorney in asking character witnesses what they had heard about the affair between appellant and Mrs. Jack Kimbell and other matters of a kindred nature, some of which occurred after the District Attorney had been warned by the Court to not ask any further questions along that line. Without going into detail, suffice it to say that we think some of the conduct of the District Attorney was improper but these matters cannot be isolated and detached from all their surroundings and measured to determine whether or not injury has been done to the rights of appellant. There were admitted facts in the record concerning the relations between appellant and the wife of deceased of much more prejudicial character than any of the remarks which the District Attorney made. In each instance the Court instructed the jury to disregard such remarks and conduct. The jury having before it from the mouths of witnesses and appellant himself facts which tended very strongly to suggest such an intimacy, we fail to see why questions relating'to
such a matter, which the jury were specifically instructed to disregard, could constitute such injury as would demand a reversal. We deem it useless to cite authorities as all such matters must be determined from their own particular surroundings. The District Attorney did not inject into the case a prejudicial matter, it was already in the case. He merely improperly referred to an issue that was hotly contested. If evidence of intimacy was totally absent, we can see good reason for reversing because of the improper references of the District Attorney, but in this case there exists an admission by appellant of his presence alone in a hotel room with deceased’s wife, registered under an assumed name. With this and other facts before the jury, we are of the opinion that such references were not of that character which demand a reversal and especially in view of the Court’s instructions with reference to same.
We have examined all of appellant’s bills of exception and finding no error in any of them, the judgment is affirmed.
A firmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.