*1 liquor, large negro transporting quantity while with another dry County, area. Soon through wine, Harrison beer judge’s county office they were taken to the the arrest after a fine appellant assessed guilty plea was entered where a lawyer got from immediately his in touch with He of $500.00. rehearing Marion, county filed a motion who home apparent of record. setting were not up questions of fact which testimony had hearsay, prejudicial alleged improper, causing a fine of him to assess submitted been companion in crime appellant, while his this $500.00 to, is not sworn only fine. This motion was assessed $100.00 attorney. will be No consideration by appellant either things alleged motion is basis given in it. This greater than the force exception, have which cannot the bill Furthermore, qualified the the trial court had. motion itself appellant’s penalty in case by saying he had fixed bill made, in the bill. were as set out any such statements before As error. presented, not show the bill does affirmed. judgment court is of the trial Daugherty I. D. State. 14, 1943. Delivered November
No. 22579. Rehearing January Denied 1944. *2 opinion states case. Haskell, Rotan, Davis, Grindstaff, H. F. and Tom appellant. Stockdale, Attorney, Aspermont, Arthur
Fred District County Attorney, Haskell, E. Foster, T. Groce W. Chas. Prosecutors, Worth, Spurgeon E. Myres, Special both of Ft. Austin, Bell, Attorney, State. State’s KRUEGER, Judge. punishment offense is murder. The assessed confine- years. penitentiary for three
ment in the a term of State charged 2nd It was in the indictment on about there, day October, 1942, appellant did then and Stonewall *3 gun. shooting Texas, by County, kill him with a H. C. Walker by changed own court on his The venue of the case was the County, to where the case from Haskell motion Stonewall with the result as above stated. tried justify challenges sufficiency to the of the evidence Appellant clearly may opinion In order that this and his conviction. sustain question, on the we deem the basis of our conclusion reflect proven trial. in the salient facts on the proper to state substance deceased, appears that the at the time of from the record occurrence, position of held the the unfortunate constable County, employed by Aspermont, was also the in and Stonewall feeling traffic; city the that ill had to and control said direct an appellant the and deceased as result existed between by appel- illegal appellant the the deceased which arrest of damages a a civil action for and recovered had instituted lant judgment nominal sum. record further shows that in a appellant, by made the deceased the threats were serious him; the after- communicated to that on of which were some noon of the against appellant killing complaints day of the the deceased had made driving upon for the offense automobile law; highway speed public allowed that in excess of appellant placed were and the arrest of the issued warrants same; deceased, undertook to execute the who hands of in the that mont sitting Asper- appellant car on the street of his he found had warrants for his him that he arrest and informed get go jail. car and with him to out his to requested him Appellant declined comply whereupon request, with this to appellant with pistol attempted to strike drew accomp- it; failed to place to on him but that he tried handcuffs holster put pistol back into the purpose. lish his He then top billy, auto- appellant of the with a but and struck at sitting prevented the free appellant mobile which thereof; then reached into the deceased effective use out, time strik- pull appellant at the car and ing to same undertook appellant pistol billy, whereupon drew from him with the glove four compartment of car and shot the deceased the times, expired. Appellant then who to the sidewalk fell to the sheriff. drove to and surrendered the courthouse foregoing It will statement of the evi- be noted from the dence, record, as that the deceased a war- reflected had appellant; rant for the arrest of the that at the time of the killing, attempting the deceased was to execute the warrant resisted, custody; appellant and take into where- attempted pull automobile, the deceased to him out of the being it, accomplish but of a unable he resorted the use billy inducing club or as more effective means of But, submitting majesty submit to an arrest. instead of law, appellant pistol glove of the compartment drew a from the of his car and shot the deceased. It occurs to us under such perfect right circumstances exist. It is support had self-defense ceased to opinion amply our evidence sufficient the conviction. Many exception brought bills of complaining are forward rulings evidence,. court the admission of some duplications may which are duplica- or at least be termed *4 tions, appear as Exception 1, 1-A, will from Bills of Nos. 1-B 1-C, complains wherein the because trial court
permitted State, him, the on cross-examination of to ask him who, if Daugherty 1933, he was the same I. D. February, grand jury County charged was indicted in Stonewall by shooting with an assault with intent to murder Bill Lee him gun plead guilty with if $25.00, a he did not and was fined appellant objected ground being to all which on the too highly prejudicial. qualification In bill, remote jury the trial court certifies that he instructed the that such testimony only bearing upon credibility admitted as witness, so, they the defendant as if it did and that if con- all, they only it sidered should purpose consider it for the for it admitted. which was seems to be the settled rule in this State that where a defendant takes witness stand and behalf, may own testifies he be if asked he had not there- felony. tofore been indicted for or convicted of 492 11,
In p. 250, 45 Tex. Jur. sec. it is said: showing “The the witness had been indicted or con- may long victed be excluded where it occurred so before regards instant having trial that the tendency law it as no discredit subsequent witness. A clean record of the wit- ness, period years over a upwards, regarded of ten is as (cid:127) destroying impeaching evidence, precise value of such period being within the discretion of the trial whose point determination of the of a clear will not be overruled in the absence
showing of abuse.” Again, 317, page 233, in Section it is said: “Hence may the trial court exercise discretion determin- ing previous whether occurrence should be excluded (Cawthon for State, 86, remoteness. v. 114 Tex. R. Cr. S. W. (2d) 435). However, tendency subsequent decisions is years (counting hold that an interval of ten from the time jail release from if the defendant imprison- served a term of ment) previous renders the association with crime unavailable impeachment, intervening unless from the defendant’s con- appears duct it that he has not reformed.” State, Shipp In the 185, case v. 104 Tex. Cr. R. this court accused, trial, announced the rule that where the on his has tes witness, arbitrary tified as there is no fixed and time within charged against him, affecting which other offenses his credi witness, may held probative be too remote to have force. The court said: receipt testimony “The of such primarily should be determined judge investigation, the trial after an in the absence of the
jury, whether, determine under the facts, ascertainable act is too remote. The exercise of such discretion subject is review, and, abuse, in case of to be revised.”
In 390, the case of Cecil S. W. this court said: murder, prosecution “In competent to introduce evidence of former felonies, indictments defendant for though charges even as to one of the there was a conviction aggravated for an assault.” Exception 3, 3-A, Bills of Nos. 5 and show that on cross- *5 Turner, a examination of Ross for defendant, witness he was asked if he had not seen the post deceased out at his duty enforcing protecting laws and children, traffic school to which quali- exceptions. The court objected and reserved his appellant previously had that the witness with the statement fied the bills City Council knew that objection that he testified without employed had Trustees Aspermont and the Board School protect chil- and school enforce the traffic laws to the deceased accepted and bill, qualified as thus from fast drivers. dren evidence any error. When reversible by appellant, fails to reflect like or of similar to objection which is is admitted without to, shown. See error is objected no reversible character as State, McLaughlin 972; State, (2d) Sparkman v. 82 S. W. P., 3, 271, p. 307; Vol. Ann. Tex. C. C. Tex. R. Vernon’s Cr. 32, note and cases cited. substantially 4, 4-A, complain similar and 5-A Bills Nos. by
testimony. carry qualification the court the same These bills any and, opinion, fail error. to show our Exception opinion, merit. Bill of No. in our is also without Long, Exception Bill of No. 7 that Tom a former shows sheriff, by deputy was called as a witness the defendant testified, among things, opinion the deceased other in his carry any was a man into threat who was calculated to execution might make; dangerous man; that he he was a violent (witness) protect that he had warned the to himself. defendant Upon cross-examination the witness testified thought people he had arrested men whom some he should also Appellant objected testimony not have arrested. to this on the ground light any not that it was material and shed no issue objection prejudicial.. in the case and was was overruled appellant excepted. qualified The trial court and in bill qualification states that the witness had testified that he complaints that the had made had heard deceased certain arrests. sought convey appears to us that the witness the idea that using position his official as a har- the deceased was means of assing Consequently, sincerity people. to test of the wit- sheriff) (who deputy ques- he had was asked the ness been However, here, complained tion of. under the facts as disclosed any testimony evil from the we fail to see result inasmuch as over-bearing disposition part on the it tends to show which, opinion, in our was beneficial him. The than harmful conduct the witness while rather he was chargeable deputy was not sheriff could legal rights. injuriously affected his not have complains Exception of certain No. 9 remarks Bill of made closing argument, prosecutor objec- in his private but no *6 494 Appellant
tion was made thereto. now that it was contends highly prejudicial himto and that this court reverse should notwithstanding object this case his failure to thereto at the so, depart time necessarily it was made. doTo we would from many the established rules this of State and overrule former de- by However, by qualified cisions this court. the trial the bill is qualification objection and the shows that even if an had interposed, any been as the remarks were made in it would not have been avail indulged argument reply to the by appellant’s attorney. in Exception complains testimony
Bill of 10No. of the of H.G. McLaughlin, a Department chemist State Public Safety, who testified that he examined bullet and shirt which it; had an entrance hole in that an he made examination of the approximate gun distance muzzle from the shirt; that as a result his examination of the articles he gun reached conclusion that the was a distance of four feet or more from the shirt the time was fired. Then the wit- explanation employed ness entered of the method making experiments gun by killing with the used powder stated that the nitrates or imbedded vary distance; according the cloth would gun greater object, more-pronounced closer the would was to the burns, powder qualified bill, be etc. court also this qualification and in his thereof states the witnesses were agreed not as to the distance the defendant from the de- ceased at the time some of the were shots fired. In view of the qualification bill, any court’s fail we see reversible thereby. error reflected appearing record, judgment No reversible error in the court the trial is affirmed. foregoing opinion Appeals the Commission of has Judges been examined of the Court of Appeals Criminal approved the Court. appellant’s rehearing.
ON motion Judge. BEAUCHAMP, nothing presented appel- While for our consideration in rehearing lant’s motion for in addition to the matters discussed original opinion, strenuously in the it is insisted that an in-
justice has been done and that the “conviction should be set though supporting aside there be evidence the verdict.” For this
495 State, 247 S. v. W. Burkhalter position, is had on reliance page 430. and 18 Tex. Jur. a con- of evidence to be paramount rule concede the We reason- leaves the evidence where
viction cannot be sustained State, guilt v. Perkins of the accused. doubt as to the able However, we Hardejnan App. 109; 350. 12 Tex. Tex. *7 the case concluded, study facts of of the after a careful have prin- a us, fundamental of so the announcement before case disposition of the instant cipal appellant in a does not aid Questions arising trial mind of in the the of fact this court. him, on disposed him properly will when be before trial, are as bind- thereon new and his conclusions motions for ing findings jury. the upon are the this court as large testimony on the A of witnesses whose sub- number highly pictured ject the as a stands uncontradicted over-bearing man, diligent duty, performance in the of his but lacking judgment. Apparently testi- in all of his fellow officers he a man who had no fied and concluded that business nervous, smarting carrying gun. excitable, and a He was under for reelection as He had made threats his defeat constable. against singled people many particularly appel- as a class and had out going going to kill to lant on occasions as one he was “get” expired. ap- before term of office His conduct toward pellant presence in the of others on several occasions was in- sulting provoke difficulty. and to a In he was calculated this persistent. many was veyed threats as he made were times Such con- appellant. appellant the
to Had deceased made an attack on indicating carry many a an intent in manner to out one of his threats, using appellant would have been warranted in such appeared reasonably necessary would have to to be force as him defending bodily injury. death or in himself serious officer, by many witnesses, as detailed and conduct of approach attempting in the arrest manner of his which resulted as to direct our were such most serious in his death attention presented appellant right perfect had a the contention to finding. defense, contrary jury’s self original any say opinion intention to in the disclaim We right party approach to whom has he an officer wishes to gun, blackjack, into with his him submission and beat arrest aggression to that when The rule seems be devise. or other making reasonably arrest exceeds what neces- officer right sary self to effect arrest defense inures to party (2d) 94, 38 S. W. assaulted. Stanfield Vernon’s 8, 241, P. Art. an- C. Subdivision P. Art. with C. C. notations. many approached witnesses testified that the deceased
appellant positive probably in rather a excited manner pistol immediately. either had How- his hand or secured it ever, replaced pistol he in its scabbard and secured what appeared blackjack Ap- to be a or billet and also his handcuffs. pellant place attempting to declined be arrested and the officer was
the handcuffs on the fatal the time the first of shots was fired. There is no evidence in the case that he struck pistol positive with the or with the billet. There is no himself,' Appellant, evidence that he even tried to do so. does not claim deceased struck him or that it was the fear going injure particular he was him at-that time which was shooting. the immediate cause of the by He was afraid be arrested things transpired the deceased because that had past being improperly and his fear of handled after jail by him, alone, arrest. He was afraid to be carried say prevent injury does not that he shot the officer to about to be inflicted him. He feared what would do the officer *8 doing, do, after the and not arrest what he was or about time. think this We evidence did raise an issue of self defense properly jury, certainly which was submitted to it but does requirements perfect not fulfill the of the law to make self gave right defense. The officer had warrant which him the position arrest was not in the of one right illegal only right who had a to resist an arrest. His appellant, to defend himself the conduct of which he feared, justified jury say and it for the whether not he was so doing They findings, this. made their and this court power has no it. disturb
Appellant’s rehearing motion for is overruled. Lee v. The State.
Ora Gaines No. 22593. Delivered November 1943. Rehearing January 5, Denied 1944.