25 S.W. 635 | Tex. Crim. App. | 1894
1. The court did not err in refusing to submit the issue of self-defense to the jury. It was not raised by the evidence. Deceased and one Vinson were engaged in ordinary fist fight at the time defendant came up and fired the fatal shot.
2. State's witness Cannon was recalled by defendant, and asked if he "did not state on the examining trial of this defendant in the town of Leggett, in Polk County, Texas, about two days after N.R. Hickman *110 was killed, that you had been in Leggett, and away from the gin, your place of business, about one hour and twenty minutes, when Hickman was killed?" This was intended as a predicate for impeaching the witness. This witness had previously testified that he was in Leggett a shorter time than one hour and twenty minutes. A witness may be recalled by the opposing side for the purpose of laying a predicate for his impeachment; but in such case it will not be error to exclude both the question and answer, or reject either or both, if they be collateral or immaterial. Drake v. The State, 29 Texas Crim. App., 265. How the fact that the witness was in Leggett a longer or shorter period of time could have been material is not discernible from the record before us.
3. Vinson, while testifying for defendant, was asked to "state whether or not the defendant knew of the threats made against you by the deceased." He was expected to "answer in the affirmative, and that defendant did know of threats made by deceased against the witness." The bill of exceptions is too uncertain and vague in its statements to require consideration. The nature and character of the threats are not stated. It is not even shown that any threats were made by deceased against Vinson. The rejected evidence must be shown to be in some manner material to some issue in the case. Willson's Crim. Proc., secs. 2368, 2516.
4. The petition for writ of injunction filed by deceased against defendant Vinson and others in regard to the cattle set out therein, the order of the judge granting said writ, and the writ itself, were properly admitted. It was relevant testimony, and bore directly upon the status of the parties to the unfortunate homicide in regard to their animus and ill will towards each other.
5. The defendant offered to prove that Tom Hickman had a pistol "on the ground" when the difficulty occurred, "at the time of the difficulty, and while Tom Hickman was cursing Nick Vinson and defendant." The court informed counsel that they could prove that said "Hickman was on the ground at the time of the difficulty, and that he had a pistol, but they would not be allowed to show that he was armed with a pistol after the difficulty was over (when he was cursing defendant and Vinson), which was after the killing. The defense did prove, however, by Ross Edwards, that Tom Hickman had a pistol on the ground after the killing of Dick Hickman."
As presented, the bill of exceptions does not show error. The fact that Tom Hickman had a pistol after the killing was not a fact tending to excuse or justify defendant in shooting Dick Hickman.
If defendant failed to prove that Tom Hickman had the pistol before or at the time of the killing, it was either because it was not a fact, or because if true he declined to prove it. The court informed him that such testimony would be admitted. It is, to say the least of it, very *111 doubtful if such evidence could have been, under the facts of this case, in any way material, if true.
Defendant did not shoot or attempt to shoot at Tom Hickman, but shot Dick Hickman, who was unarmed, and who was not displaying a pistol. He says he shot deceased because Cannon was approaching the place of the difficulty with a knife in his hand.
The evidence amply supports the judgment, and it is affirmed.
Affirmed.
Judges all present and concurring.
