HARPER, Judge.
Appellant was prosecuted and convicted of murder, and his punishment assessed at thirty years confinement in the State penitentiary.
The crime with which appellant was charged was alleged to have been committed on the 18th day of October, 1912. The trial was had in September, 1913. Appellant, in the record, admits that the court, before the argument was begun, furnished him, with a copy of the charge, and he read it; and he further admits that he at that time took no exception to the charge as prepared and submitted to him, and which was subsequently read to the jury, but after the verdict, in his motion for a new trial he vigorously assails the charge of the court. His contention is, that as the offense with which he is charged was committed prior to
July 1st of last year, although tried subsequent to that date, the law regulating the trial of criminal eases as passed by the last Legislature (chapter 138) should not apply, and he could still complain of the charge of the court for the first time in his motion for a new trial. Mr. Black, in his work on “Interpretation of Laws,” says: “Ho person has a vested right in any form to procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, and if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage. Statutes which relate to the mode of procedure, and affect only the rights, are valid; and it is no objection to them that they are retrospective in their operation. It is competent for the Legislature at any time to change the remedy or
mode
of procedure for
enforcing or
protecting rights, provided such enactments do not impair the obligations of contracts, or disturb vested rights, and such remedial statutes take up proceedings in pending causes where they find them; and when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amendatory act.” Old article 743 read before amendment that the “error in the charge must be excepted to at the time of the trial,
or on motion for a new trial.”
In amending and re-enacting this provision of the Code, the words “or on motion for a new trial,” were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. By the Constitution of this State the right of appeal is given only under such conditions and restrictions as
may he required hy law,
consequently this restriction as to what questions we shall review on appeal is valid and binding on us, and we have no authority to ignore it, nor construe it out of existence. If it is considered that the provisions are too restrictive, the remedy lies in an application to the Legislature to amend the article. We are powerless to give relief from its provisions so long as it is the law, consequently we are without authority to review the charge of the court unless complained of at the time" of the trial, unless fundamental error is presented.
Mrs. Jim Wright, wife of appellant, testified in his behalf, that the relations between their family and the family of Mr. Steed (deceased), had been very unpleasant for two years; that Mrs. Steed some two weeks before the homicide had cursed appellant and called him a s—n of a b—h; that for some months they had hardly been on speaking terms; that a short time before the homicide she saw deceased cleaning his gun in the yard, and that Mrs. Steed had informed her that deceased
had his gun in the house loaded, and if Mr. Manaban ever turned the hydrant off again, Mr. Steed would kill him; that she had informed her husband about this conversation, and told him to be on his guard, that she thought that deceased had cleaned his gun to kill him, appellant. Mrs. Steed testified denying all this, and said that prior to the night of the killing in so far as she knew, the feeling between the two families were friendly; denied that she had called appellant a s—n of a b—h; denied that she had ever told Mrs. Wright that the gun was in the house loaded, and if Mr. Manaban ever turned the water off again her husband would kill him. It will be noticed that Mrs. Wright said it was on this circumstance that she warned her husband to be on his guard, and that she believed 'deceased was cleaning it up to kill him, appellant.
Mrs. J. T. Camp testified that she lived a close neighbor to appellant and deceased; that she frequently saw Mrs. Wright and Mrs. Steed conversing; that the children visited, and that the relations between the two families were friendly, or so seemed to her. On cross-examination she answered that there might have been friction between the two families of which she was unaware.
Mr. Manaban was permitted to testify that he had never cut off the hydrant at Mr. Steed’s in his life.
This testimony was objected to by appellant, but we think it clearly admissible. The previous relations, as sworn to by Mrs. Wright and other witnesses, were introduced by appellant as tending to show what, in the light of what he says occurred at the time of the homicide, led him to believe his life was in danger, and it was perfectly legitimate for the State to show, if it could, that these conditions did not exist, and the killing took place under the circumstances testified to by the State’s witnesses.
Appellant desired to prove by Joe Kraus what he, appellant, told him after the homicide. This was not told under circumstances to render it res gestae of the transaction, and would have been but a self-serving declaration made a long time after appellant had left the scene of the homicide, consequently the court did not err in excluding this testimony.
By the only other bill in the record it is shown that T. Y. Morehead was permitted to testify, over appellant’s objection, that defendant some time after the commission of the offense requested him “to get the two sons-of-bitches who arrested him before, in order that he might cut them down.” The connection in which this testimony was admitted is not shown by the bill, nor can we ascertain by the statement of facts the connection in which it was introduced, for no such testimony appears in the statement of facts. However, the bill of exceptions was approved and this governs, and we’conclude that the statement was testified to by the witness. The objection made by appellant was that such “statement, if made was immaterial and irrelevant, and did not tend to prove the commission by the defendant of the offense of which he is charged, but did tend to inflame the minds of the jury against defendant
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HARPER, Judge.
Appellant was prosecuted and convicted of murder, and his punishment assessed at thirty years confinement in the State penitentiary.
The crime with which appellant was charged was alleged to have been committed on the 18th day of October, 1912. The trial was had in September, 1913. Appellant, in the record, admits that the court, before the argument was begun, furnished him, with a copy of the charge, and he read it; and he further admits that he at that time took no exception to the charge as prepared and submitted to him, and which was subsequently read to the jury, but after the verdict, in his motion for a new trial he vigorously assails the charge of the court. His contention is, that as the offense with which he is charged was committed prior to
July 1st of last year, although tried subsequent to that date, the law regulating the trial of criminal eases as passed by the last Legislature (chapter 138) should not apply, and he could still complain of the charge of the court for the first time in his motion for a new trial. Mr. Black, in his work on “Interpretation of Laws,” says: “Ho person has a vested right in any form to procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, and if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage. Statutes which relate to the mode of procedure, and affect only the rights, are valid; and it is no objection to them that they are retrospective in their operation. It is competent for the Legislature at any time to change the remedy or
mode
of procedure for
enforcing or
protecting rights, provided such enactments do not impair the obligations of contracts, or disturb vested rights, and such remedial statutes take up proceedings in pending causes where they find them; and when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amendatory act.” Old article 743 read before amendment that the “error in the charge must be excepted to at the time of the trial,
or on motion for a new trial.”
In amending and re-enacting this provision of the Code, the words “or on motion for a new trial,” were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. By the Constitution of this State the right of appeal is given only under such conditions and restrictions as
may he required hy law,
consequently this restriction as to what questions we shall review on appeal is valid and binding on us, and we have no authority to ignore it, nor construe it out of existence. If it is considered that the provisions are too restrictive, the remedy lies in an application to the Legislature to amend the article. We are powerless to give relief from its provisions so long as it is the law, consequently we are without authority to review the charge of the court unless complained of at the time" of the trial, unless fundamental error is presented.
Mrs. Jim Wright, wife of appellant, testified in his behalf, that the relations between their family and the family of Mr. Steed (deceased), had been very unpleasant for two years; that Mrs. Steed some two weeks before the homicide had cursed appellant and called him a s—n of a b—h; that for some months they had hardly been on speaking terms; that a short time before the homicide she saw deceased cleaning his gun in the yard, and that Mrs. Steed had informed her that deceased
had his gun in the house loaded, and if Mr. Manaban ever turned the hydrant off again, Mr. Steed would kill him; that she had informed her husband about this conversation, and told him to be on his guard, that she thought that deceased had cleaned his gun to kill him, appellant. Mrs. Steed testified denying all this, and said that prior to the night of the killing in so far as she knew, the feeling between the two families were friendly; denied that she had called appellant a s—n of a b—h; denied that she had ever told Mrs. Wright that the gun was in the house loaded, and if Mr. Manaban ever turned the water off again her husband would kill him. It will be noticed that Mrs. Wright said it was on this circumstance that she warned her husband to be on his guard, and that she believed 'deceased was cleaning it up to kill him, appellant.
Mrs. J. T. Camp testified that she lived a close neighbor to appellant and deceased; that she frequently saw Mrs. Wright and Mrs. Steed conversing; that the children visited, and that the relations between the two families were friendly, or so seemed to her. On cross-examination she answered that there might have been friction between the two families of which she was unaware.
Mr. Manaban was permitted to testify that he had never cut off the hydrant at Mr. Steed’s in his life.
This testimony was objected to by appellant, but we think it clearly admissible. The previous relations, as sworn to by Mrs. Wright and other witnesses, were introduced by appellant as tending to show what, in the light of what he says occurred at the time of the homicide, led him to believe his life was in danger, and it was perfectly legitimate for the State to show, if it could, that these conditions did not exist, and the killing took place under the circumstances testified to by the State’s witnesses.
Appellant desired to prove by Joe Kraus what he, appellant, told him after the homicide. This was not told under circumstances to render it res gestae of the transaction, and would have been but a self-serving declaration made a long time after appellant had left the scene of the homicide, consequently the court did not err in excluding this testimony.
By the only other bill in the record it is shown that T. Y. Morehead was permitted to testify, over appellant’s objection, that defendant some time after the commission of the offense requested him “to get the two sons-of-bitches who arrested him before, in order that he might cut them down.” The connection in which this testimony was admitted is not shown by the bill, nor can we ascertain by the statement of facts the connection in which it was introduced, for no such testimony appears in the statement of facts. However, the bill of exceptions was approved and this governs, and we’conclude that the statement was testified to by the witness. The objection made by appellant was that such “statement, if made was immaterial and irrelevant, and did not tend to prove the commission by the defendant of the offense of which he is charged, but did tend to inflame the minds of the jury against defendant
by indicating that defendant had himself theretofore been arrested for an offense which the State neither sought to prove nor described to the jury.” Of course, it would be inadmissible to show that this defendant had committed any other and different offense not growing out of this transaction. But that defendant had theretofore been arrested is shown by the record by other witnesses and other testimony not objected to. Mr. Morehead was permitted to testify that appellant resisted arrest when he went to arrest him for this offense. Then on cross-examination appellant sought to prove by this witness that he gave as a reason for refusing to give up his gun, the way they had treated him before; that they had talked of lynching him before; that they had then threatened to lynch him, and had mistreated him. It is thus seen that the fact that appellant had been theretofore arrested was not communicated to the jury by the statement above objected to, but got before the jury by reason of his resisting arrest, and refusal to give up his gun on this occasion, and appellant’s explanation, developed by his counsel, of his conduct and in seeking to explain it away. This is the only error complained of in a way we could review it, if error it be, and under the evidence adduced legitimately and without objection, it would not be such error as would call for or necessitate-a reversal of the case.
The evidence would show that appellant and Mr. Steed were both carpenters residing at Pecos, in Beeves County. Only a short time before the homicide they had been at work together on houses erected in that town. Deceased is not shown to have had any animosity towards appellant other than by the testimony of appellant and his wife, who say that deceased became angry because appellant tore loose a playhouse made for his children, and which was fastened to a fence running between their houses, while on the other hand, by the testimony of witnesses it is shown that appellant had no kindly jeeling toward Mr. Steed. All the testimony shows that Mr. Steed bore the reputation of a peaceable and law-abiding citizen. On the evening of the tragedy, according to the State’s testimony, deceased went home, talked a while to his daughter, who then went to a moving picture show; his wife told him about a neighbor who wanted to sell a store, and he went to see it, purchasing the store. His Avife, as soon as the girls left, took the baby girl and went to meet him, they returned home together. His wife saj^s deceased was walking along, with the child in his arms, playing with it, when appellant called and says, “Steed, I have tore the G—d d—d playhouse down, and I do not want it put up there any more, and if he did put it up, he would shoot his G—d d—d head off”; that deceased replied, “What is the matter with you anyhow ?” Appellant replied: “I mean what I say.” That deceased then remarked, “Oh, it would be like another Mexican case,” when appellant said, “G:—d d—n your soul to hell, it is not a Mexican I am after this time; you are the man I want,” and shot him. Deceased was in his shirt sleeves, and had no weapon. Appellant’s version is that he met deceased late in the evening, and told him if he did not tear the playhouse and his fence from appellant’s
fence, he, appellant, would do so, when deceased replied he would kill him if he did. That he, appellant, then went in and ate his supper. After eating his supper he decided to tear the playhouse and fence loose from bis fence, and getting his gun, he called his son and they went out there and climbed the fence over in deceased’s yard, and began to tear the playhouse and fence loose. That he heard the deceased coming home, when he and his son got back over the fence into his own yard, and when deceased came along he “told him he had torn that outfit down, and did not want it nailed back there,” when deceased remarked, “Yes, and G—d d—n you, I will get my gun and fill you both full of lead,” and started to the house. That he, appellant, did not think it would do to let him go on and get his gun, and he raised his Winchester and shot him.
The dying statement of deceased would show an unprovoked killing. Morehead says when he got there appellant remarked: “I guess you are
after the man that done that shooting—I done it, and I am not a d—u bit sorry of it.”
Thus it is seen that appellant’s own testimony would not justify his conduct, nor reduce the offense below murder upon implied malice if indeed it does not show express malice.
The judgment is affirmed.
Affirmed.