KRUEGER, Judge.
The offense is murder. The punishment assessed is confinement in the penitentiary for life.
From the record before us, it appears that about 5:00 P. M. on August 29, 1939, the appellant shot and killed J. I. Thomas on the landing of the stairway leading to the Uptown Club and the 21 Club room on the same floor, located on Capital Avenue, in the block between Milam and Travis Streets in the City of Houston, Harris County, Texas. The record discloses that the deceased, Thomas, and Strelau made two visits to the 21 Club on the afternoon in question. On their first visit,- they merely came to the first landing apparently looking for some one. They remained but a few minutes and then left. About 40 or 45 minutes later they returned to the 21 Club, and in a very short time the appellant, his son and two other parties brought the deceased and Strelau to the stairway and struck them. They hit Strelau so hard that he fell from the landing down the stairway to the floor. The deceased was also knocked down by Tony Vallone but he caught himself near the landing, held his hand over his head as if to ward off the blows when appellant drew his pistol and said, “Get back and let me kill the s— of a b— and then immediately fired two shots at Thomas, one of which
entered his body about three and one-half inches below the collar bone and about two inches to the left of the mid-line of the breast and made its exit about the center of the right shoulder, passing through the body on a level line. The other bullet struck the deceased on the right side about the short ribs and burned the skin but did not enter.
Appellant testified that he arrived at his office in the 21 Club in the afternoon between 4:00 and 5:00 P. M.; that when he started to leave his office he noticed two men whom he had not theretofore seen, beating and kicking his son. He said to them,. “Don’t do that; don’t do that,” and then ran back to the office, procured his pistol, returned to the scene of the trouble and again said to them, “Don’t do that; stop that.” Whereupon, the deceased said to his companion, “Grab that s— of a b— and we will kill them both.” Appellant again said, “Don’t do that”; whereupon the deceased reached for the bosom of his shirt and advanced towards appellant, which induced him to believe that the deceased was going to draw a gun, and he then shot the deceased. Appellant further testified that he noticed that Strelau had a razor in his hand which he put back in his pocket after the shooting; that he did not shoot the deceased to kill him but to keep the deceased from killing him and his son.
Walter H. McGrew testified that on the afternoon in question he had been to a show; that when he came out from the show he went into the building where the fatal difficulty occurred; that he saw three people on the landing, one of whom was lying down and the other two were kicking him; that he heard one of the two say, “Kill him; Kill him”; that about that time two shots were fired and he then left.
The appellant’s son, Tony Vallone, testified that he was employed as doorman for the Club; that on the day in question he heard the buzzer-button located underneath the carpet of the stairway, and when he heard it, he went to see who was coming up. He noticed that it was Strelau and the deceased. He inquired of them if there. was anything he might do for them. They replied that they wanted to come into the club-room and gamble. He told them that he was sorry; that it was a private club and he could not admit them. They called him a s~ of a b— and left. In a short time he heard the buzzer-button again and went to see who was coming up and discovered that it was Strelau and the deceased. He again told them that it was a private club and that he could not admit them. The deceased then said to Strelau, “Grab that yellow s— of a b — , and let us beat him up,” and the
fight began. During the fight he tripped and fell on the landing of the stairway; that when he fell he struck his head against the wall and they, Strelau and deceased, kicked him; that he then heard some one holler, “Don’t do that; don’t do that.” He noticed that the deceased, Thomas, had something in the bosom of his shirt and when he reached for it the first shot was fired and he saw Thomas stagger. The second shot was fired immediately after the first one. He then heard appellant say, “Tony, I am sorry I had to do that; if I hadn’t done it they would have killed us both.” Much of the defendant’s testimony related to what the deceased and Strelau did to appellant and his son. When the deceased was picked up he had no weapon on his person, nor was any discovered on the landing where he fell. All that was found on his person was a half-pint bottle of whisky and five or six packages of cigarettes.
By Bill of Exception Nos. 1 and 2 appellant complains of the testimony given by Ray Brewer, a bystander, who testified that after the shooting he passed within three of four feet of where Frank Douglas and some other persons were standing; that he heard Douglas, a bystander, say, “There goes the s— of a b— who shot him”; that the defendant continued to walk until he had reached a point five or six steps away, when he looked back at them and then went toward the garage but made no reply. Douglas also testified that he made the remark, to which testimony appellant objected to on the ground that it was a statement by a bystander; that it was prejudicial because it was not shown that the defendant heard the remark, etc. The record shows that the statement was made by Douglas immediately after the shots had been fired and that when the defendant had walked five or six steps from his victim he looked back at Douglas who had made the remark. Although appellant testified in his own behalf he did not deny having heard the statement. Douglas, Brewer and appellant were, at the time of the remark, in such close proximity to the scene of the killing and to each other as justified the court in admitting the testimony. If appellant heard the remark and made no denial, it was a tacit admission that he had fired the shot and was proper for the jury to consider on the question of who did the killing, inasmuch as the defendant had not at the time testified and admitted the killing. Under appellant's plea of not guilty the State was required to prove that he did the killing and this evidence was a circumstance tending to connect him with the homicide.
In the case of Powell v. State, 99 Texas Cr. R. 284, 269 S. W.
443, a question somewhat similar to the one here presented was before this Court, and the Court, speaking through Judge Hawkins, said:
“From the proximity of the parties the court concluded that the testimony was admissible, but instructed the jury at the time that unless they found from the evidence beyond a reasonable doubt that appellant heard the statement of deceased testified to by Mr. and Mrs. Hagan they would not consider it for any purpose.”
In the instant case, no such charge was given, nor required because the appellant, subsequent to the admission of the testimony, took the witness-stand and admitted that he fired the shots which produced the death of the deceased. However, the court, by written instruction, withdrew said, complaint of testimony from the jury after they had deliberated part of two days and one night. Appellant contends that the belated withdrawal did not remove the prejudicial effect thereof.
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KRUEGER, Judge.
The offense is murder. The punishment assessed is confinement in the penitentiary for life.
From the record before us, it appears that about 5:00 P. M. on August 29, 1939, the appellant shot and killed J. I. Thomas on the landing of the stairway leading to the Uptown Club and the 21 Club room on the same floor, located on Capital Avenue, in the block between Milam and Travis Streets in the City of Houston, Harris County, Texas. The record discloses that the deceased, Thomas, and Strelau made two visits to the 21 Club on the afternoon in question. On their first visit,- they merely came to the first landing apparently looking for some one. They remained but a few minutes and then left. About 40 or 45 minutes later they returned to the 21 Club, and in a very short time the appellant, his son and two other parties brought the deceased and Strelau to the stairway and struck them. They hit Strelau so hard that he fell from the landing down the stairway to the floor. The deceased was also knocked down by Tony Vallone but he caught himself near the landing, held his hand over his head as if to ward off the blows when appellant drew his pistol and said, “Get back and let me kill the s— of a b— and then immediately fired two shots at Thomas, one of which
entered his body about three and one-half inches below the collar bone and about two inches to the left of the mid-line of the breast and made its exit about the center of the right shoulder, passing through the body on a level line. The other bullet struck the deceased on the right side about the short ribs and burned the skin but did not enter.
Appellant testified that he arrived at his office in the 21 Club in the afternoon between 4:00 and 5:00 P. M.; that when he started to leave his office he noticed two men whom he had not theretofore seen, beating and kicking his son. He said to them,. “Don’t do that; don’t do that,” and then ran back to the office, procured his pistol, returned to the scene of the trouble and again said to them, “Don’t do that; stop that.” Whereupon, the deceased said to his companion, “Grab that s— of a b— and we will kill them both.” Appellant again said, “Don’t do that”; whereupon the deceased reached for the bosom of his shirt and advanced towards appellant, which induced him to believe that the deceased was going to draw a gun, and he then shot the deceased. Appellant further testified that he noticed that Strelau had a razor in his hand which he put back in his pocket after the shooting; that he did not shoot the deceased to kill him but to keep the deceased from killing him and his son.
Walter H. McGrew testified that on the afternoon in question he had been to a show; that when he came out from the show he went into the building where the fatal difficulty occurred; that he saw three people on the landing, one of whom was lying down and the other two were kicking him; that he heard one of the two say, “Kill him; Kill him”; that about that time two shots were fired and he then left.
The appellant’s son, Tony Vallone, testified that he was employed as doorman for the Club; that on the day in question he heard the buzzer-button located underneath the carpet of the stairway, and when he heard it, he went to see who was coming up. He noticed that it was Strelau and the deceased. He inquired of them if there. was anything he might do for them. They replied that they wanted to come into the club-room and gamble. He told them that he was sorry; that it was a private club and he could not admit them. They called him a s~ of a b— and left. In a short time he heard the buzzer-button again and went to see who was coming up and discovered that it was Strelau and the deceased. He again told them that it was a private club and that he could not admit them. The deceased then said to Strelau, “Grab that yellow s— of a b — , and let us beat him up,” and the
fight began. During the fight he tripped and fell on the landing of the stairway; that when he fell he struck his head against the wall and they, Strelau and deceased, kicked him; that he then heard some one holler, “Don’t do that; don’t do that.” He noticed that the deceased, Thomas, had something in the bosom of his shirt and when he reached for it the first shot was fired and he saw Thomas stagger. The second shot was fired immediately after the first one. He then heard appellant say, “Tony, I am sorry I had to do that; if I hadn’t done it they would have killed us both.” Much of the defendant’s testimony related to what the deceased and Strelau did to appellant and his son. When the deceased was picked up he had no weapon on his person, nor was any discovered on the landing where he fell. All that was found on his person was a half-pint bottle of whisky and five or six packages of cigarettes.
By Bill of Exception Nos. 1 and 2 appellant complains of the testimony given by Ray Brewer, a bystander, who testified that after the shooting he passed within three of four feet of where Frank Douglas and some other persons were standing; that he heard Douglas, a bystander, say, “There goes the s— of a b— who shot him”; that the defendant continued to walk until he had reached a point five or six steps away, when he looked back at them and then went toward the garage but made no reply. Douglas also testified that he made the remark, to which testimony appellant objected to on the ground that it was a statement by a bystander; that it was prejudicial because it was not shown that the defendant heard the remark, etc. The record shows that the statement was made by Douglas immediately after the shots had been fired and that when the defendant had walked five or six steps from his victim he looked back at Douglas who had made the remark. Although appellant testified in his own behalf he did not deny having heard the statement. Douglas, Brewer and appellant were, at the time of the remark, in such close proximity to the scene of the killing and to each other as justified the court in admitting the testimony. If appellant heard the remark and made no denial, it was a tacit admission that he had fired the shot and was proper for the jury to consider on the question of who did the killing, inasmuch as the defendant had not at the time testified and admitted the killing. Under appellant's plea of not guilty the State was required to prove that he did the killing and this evidence was a circumstance tending to connect him with the homicide.
In the case of Powell v. State, 99 Texas Cr. R. 284, 269 S. W.
443, a question somewhat similar to the one here presented was before this Court, and the Court, speaking through Judge Hawkins, said:
“From the proximity of the parties the court concluded that the testimony was admissible, but instructed the jury at the time that unless they found from the evidence beyond a reasonable doubt that appellant heard the statement of deceased testified to by Mr. and Mrs. Hagan they would not consider it for any purpose.”
In the instant case, no such charge was given, nor required because the appellant, subsequent to the admission of the testimony, took the witness-stand and admitted that he fired the shots which produced the death of the deceased. However, the court, by written instruction, withdrew said, complaint of testimony from the jury after they had deliberated part of two days and one night. Appellant contends that the belated withdrawal did not remove the prejudicial effect thereof. We are not in accord with his contention. In our opinion, the testimony, under the circumstances disclosed by the record, was admissible. Appellant cites us to the case of Young v. State, 124 S. W. (2d) 144. In that case, the appellant and a woman were in a car with the windows up, some ten or twelve steps from the person who made the remark, “What is that fellow trying to do with that woman?” There was no evidence that under the circumstances shown to have existed there that appellant heard or might have heard what was said. Consequently, the evidence was not admissible; but here we have quite a different state of facts. Moreover, we think the statement complained of was a part of the res gestae. See Gilmore v. State, 241 S. W. 492, 91 Texas Cr. R. 31; Taylor v. State, 299 S. W. 554; Kinney v. State, 144 S. W. 257; Keeton v. State, 128 S. W. 404.
Bill of Exception No. 3 reflects the following occurrence: After Tony Vallone, son of the appellant, had testified that Strelau and the deceased had not been inside the club on the afternoon of the homicide and had not lost any money in a card game and that he did not take them one at a time, bring them out to the stairway and throw them out, he was asked by the District Attorney:
“And the reason of it was * * * didn’t you find" out, they only had a small amount of money,, and didn’t one of . you say, These cheap s— of a b— don’t have any money’; did that happen?”
The witness replied, “No, sir.” To all of which appellant objected on the ground that unless the State had something to back it up the questions were prejudicial and without foundation. We are not in accord with him for several reasons: First, the question was asked on cross-examination; second, there was some basis for the question because the club was a quasi-public place according to the testimony. It was a place where people engaged in playing cards. The stairway was provided with a buzzer-button placed under the carpet and out of view of people who came there. The purpose of the buzzer was to notify those in the club that some one was coming. Just above the door was a looking-glass so constructed that one on the inside of the club room could see who was coming up the stairway. If the club was not operated contrary to the law, then why all of these attachments? Furthermore, after Strelau and the deceased were thrown out, one of them came back up to the stairway and said, “Lonnie, give us back something.” Under the facts here related, we would not be justified in holding that the questions were asked without any basis therefor but with a view of prejudicing the minds of the jury against appellant. See Clements v. State, 153 S. W. 1137. The State, upon cross-examination, may ask such questions as might show a motive for the encounter on the intent of the accused. Article 1257a, P. C., provides:
“In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased,” etc.
However, the asking of an improper question will not in any and all events require a reversal of a case when the answer thereto was in the negative. See Ard v. State, 101 Texas Cr. R. 545; Graham v. State, 55 (2d) 826; Sayles v. State, 275 S. W. 831.
Bill of Exception No. 4 shows that the District Attorney propounded to the witness Vallone the following question:
“Hadn’t Thomas been into that place before, and had won some two thousand dollars?”
This question was answered in the negative.
Bill No. 5 shows that the witness was then asked:
“Isn’t it a fact that when they * * * came in there * * * that day * * * they started to gamble and it was discovered that
between them they had only about eight or nine dollars, and weren’t they bounced out one at a time - and r'olled down the steps?”
To which the witness replied, “No, sir; never whs there; never saw the men before in my life.”- We think that what we have said in disposing of Bill No. 3 applies here and we see no need of further discussing the question. See Alexander v. State, 8 S. W. (2d) 176; Briggs v. State, 2 S. W. (2d) 238; Clements v. State, 153 S. W. 1137.
By Bill of Exceptions No. 6 appellant complains of the action of the trial court in overruling his motion for a new trial based on the ground that J. T. Carter, one of the jurors of the panel before whom appellant was tried, was not a freeholder or householder; that on his voir dire he was asked the question if he was a freeholder or householder and he replied in the affirmative; that appellant was not negligent in failing to discover it until after the trial. It does not appear that any probable injury resulted to defendant by reason of Carter’s services as a juror. Carter at first stood for assessing appellant’s punishment at twenty years but after considerable deliberation agreed with his fellow jurors to assess the penalty at confinement in the State penitentiary for life. Subsequently Carter made an affidavit in which he charged misconduct on the part of the jurors in their deliberations. This affidavit was attached to appellant’s motion for a new trial and urged as a ground for a new trial. This question has been decided adversely to appellant’s contention. See Leeper v. State, 14 S. W. 398; Squyres v. State, 242 S. W. 1024, and authorities there cited.
Appellant also complains because the trial court declined to grant him a new trial on the ground that the jury in .their deliberation received other evidence than that admitted under the ruling of the court, viz: Juror Carter informed the jury that he knew by reputation that appellant was operating a gambling house or club; that one or more of the other jurors stated that the defendant had been accused of the murder of one Navarro. The State contested the averments in the motion. In support of his motion, appellant claims that he not only attached the affidavit of Carter thereto but that he called the juror to the witness stand, who gave testimony, supporting the averments in the motion; that he then rested; that the State merely offered the affidavits of the other eleven jurors in support of its contest but did not offer to place any of said ;j"urbrs on the stand to support the denial of the averments in’-appellant’s motion,
notwithstanding they were all present in court. Appellant takes the position that the affidavits offered by the State did not overcome the showing which he made entitling him to a new trial.
Article 757, C. C. P. provides:
“The State may take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.”
In our opinion, the trial court, under the article quoted above, could, in his discretion, decline to hear oral evidence. See Asher v. State, 102 Texas Cr. R. 162, 277 S. W. 1099; McBee v. State, 44 S. W. (2d) 699. The granting or the refusal to sustain a motion for a new trial ordinarily rests within the sound discretion of the trial court and unless it is made to appear that he abused his discretion this court would not be justified in reversing the judgment.
All other matters have been examined by us and are deemed to be without merit.
The judgment is affirmed.
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.