273 S.W. 253
EMMONS 
v. 
STATE.
(No. 8710.)
Court of Criminal Appeals of Texas.
April 15, 1925.
Rehearing Denied June 10, 1925.
        Commissioners' Decision.
        Appeal from District Court, Freestone County; J. R. Bell, Judge.
        O. C. Emmons was convicted of manslaughter, and he appeals. Affirmed.
        Williford & Geppert and Edwards & French, all of Fairfield, for appellant.
        Tom Garrard, State's Atty, and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.
        BAKER, J.
        Appellant was charged by indictment with murder by shooting and killing Mack Ryno with a pistol, on 
or about the 4th day of September, 1923, in a barber shop at Wortham, in Freestone county, and was 
tried and convicted of manslaughter in the district court of said county on January 14, 1924, and his 
punishment assessed at 3 years' confinement in the penitentiary; from which conviction he has appealed 
to this court, seeking a reversal of the judgment of the trial court upon alleged errors of said court, as 
shown by his bills of exceptions 1 to 15, inclusive.
        The evidence in the case shows that the defendant shot the deceased twice, and shot at him the 
third time while he was running across the street from said barber shop. It is further shown from the 
record that both defendant and deceased were young men about 19 or 20 years of age and had former 
trouble between them on two different occasions, in which the deceased appeared to be the aggressor, 
and that he had on several occasions made serious threats against the
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life of defendant, and had drawn a knife on the defendant on one occasion, and armed himself with a 
pistol, apparently for the purpose of attacking the defendant. The evidence further tended to show that 
the defendant's general reputation was that of a quiet, peaceful, law-abiding citizen, and that of the 
deceased of an overbearing nature, and one likely to carry into execution his threats. Some of said threats 
had been made known to the defendant prior to the homicide, and some had not. In short, the testimony 
adduced by the state on the trial tended to show, and was to the effect, that at the time of the homicide 
the deceased was unarmed and was making no demonstration or doing or saying anything tending to 
show that he intended to carry any threats into execution at the time that the defendant shot him. Upon 
the other hand, the evidence adduced upon the part of the defendant and his witnesses was in effect 
tending to show — and especially that of the defendant himself — that at the time of the homicide the 
deceased was advancing upon him with his right hand behind him, and with a vicious look, and that he 
shot in the protection of himself and in his own self-defense.
        The above is a sufficient statement of the facts in the case to base our opinion upon the questions 
raised by the bills of exceptions.
        Appellant complains of the action of the trial court in permitting the witness Joe Battle to testify in 
behalf of the state, while explaining the location of the shop and the actions of the defendant and the 
deceased, and with reference to the movements of the deceased, "but he is trying to get away," because 
same calls for the conclusion of the witness. We think the court's explanation of this bill shows it 
harmless; and, furthermore, the testimony of the witness Day is to the same effect, in that it shows that 
at that time the deceased was running towards the door, and in fact the undisputed testimony shows that, 
at the time mentioned by the witness, the deceased was running away from the defendant.
        In bill of exception No. 2, appellant complains of the court's permitting counsel for the state to ask 
the witness Demming as to the feeling between the witness and the Ryno family. In view of the court's 
qualification and explanation of the bill, we see no error in that particular.
        In bill of exception No. 3, appellant complains of the court's action in permitting the state to ask the 
defendant's brother if the officers of Navarro county had not searched his father's premises, and in 
permitting the witness to answer in the affirmative, and to ask said witness if they all did not get mad at 
the Rynos. The court's explanation of this bill we think eliminates it from any error complained of by the 
appellant; and besides, under the facts as stated, it occurs to us that the state was entitled, on cross-
examination, to ask the witness the questions for the purpose of showing what, if anything, prompted him 
to testify favorably to the defense, and in order to give the jury all the circumstances in order to weigh the 
testimony of said witness.
        In bill of exception No. 4, the defendant complains of the action of the court in permitting the deputy 
sheriff, after the rule had been invoked, to testify in behalf of the state. It appears from the bill that said 
testimony was not offered on any material issue in the case, but was more in the nature of impeachment. 
Furthermore, such matters are left largely to the discretion of the trial judge, and, in the absence of abuse 
of such discretion, there is no reversible error. We see no merit in this bill.
        In appellant's bills of exceptions Nos. 5 and 6, complaint is made of the court's charge pertaining to 
malice and murder; but, in view of the verdict of the jury, finding the defendant guilty of manslaughter, 
such complaint, if error, would be eliminated.
        In bill of exception No. 7, appellant complains of the court's charge on manslaughter, wherein the 
court charges the jury:
        "That the provocation must arise at the time of the commission of the offense, and that the passion 
is not the result of a former provocation."
        The court also, in this connection, charged the jury:
        "Although the law provides that the provocation causing sudden passion must arise at the time of 
the killing, it is your duty, in determining the adequacy of the provocation, if any, to consider in 
connection therewith all the facts and circumstances in evidence in the case, and if you find that, by 
reason of anything the deceased did, or by reason of any threat or threats made by deceased toward the 
defendant, if any, the defendant's mind at the time of the killing was incapable of cool reflection, and that 
said facts and circumstances, if any, were sufficient to produce such state of mind in a person of ordinary 
temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law."
        Taking this portion of the charge given, in connection with the other portions of the charge on 
manslaughter, we see no error therein.
        In bill of exception No. 9, appellant complains of the thirteenth paragraph of the court's charge, 
wherein the court limits the threats to those that had been communicated to the defendant; appellant 
assigning as a reason for said complaint that the court, in effect, took from the consideration of the jury 
the evidence of all threats made by the deceased against the defendant which were not communicated to 
the defendant, and in
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effect contends that the court should have charged the jury on uncommunicated threats as well as 
communicated threats.
        In Branch's Criminal Law, § 482, and the authorities therein cited, it is set out:
        "The court should charge that if defendant believed that the deceased had threatened the life of 
defendant, and this threat has been communicated to the defendant before the homicide, and at the time 
of the homicide deceased by some act then done manifested an intention to execute the threat, viewed 
from the standpoint of the defendant, then the defendant had the right to kill" — citing numerous 
authorities.
        It appears that the court was following the law as laid down above. Besides, in the case of Dunne v. 
State, 263 S. W. 608, opinion on rehearing, 615, this court, through Judge Hawkins, held that it is not 
necessary for the court to charge on uncommunicated threats. We therefore hold that there was no error 
committed by the court in this particular.
        Appellant also complains, in bill of exception No. 11, of the sixteenth paragraph of the court's 
charge, as follows:
        "Although you may believe that deceased made threats to take defendant's life, which were made in 
defendant's presence, or were communicated to him, yet, if you find from the evidence, beyond a 
reasonable doubt, that at the time defendant shot him, if he did, the deceased, Mack Ryno, did or was 
doing no act which from defendant's standpoint reasonably appeared to him to indicate or manifest an 
intention on deceased's part to carry his threats, if any, into execution, then you are instructed that the 
defendant could not justify himself on the ground of threats against him,"
        — because it is alleged that said charge is on the weight of the evidence, places the burden of proof 
on the defendant, and takes from the defendant the right to have the transaction viewed from his 
standpoint at the time he acted. The court fully charged on the burden of proof as being upon the state, 
and upon reasonable doubt, and told the jury in his charge that they would have to view the matter from 
the defendant's standpoint alone, and we find no error in this bill, especially when taking the whole charge 
into consideration. Besides, we believe it was the duty of the court to charge on this phase of the case, as 
the testimony raised that issue.
        Appellant complains of the following portion of paragraph 15 of the court's charge, set out as the 
first section of said paragraph 15:
        "When a defendant, accused of murder, seeks to justify himself on the ground of threats against his 
own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as 
affording a justification for the killing, unless it be shown that at the time thereof the person killed, by 
some act then done, manifested, an intention to execute the threats so made,"
        — because it is contended that this charge is on the weight of the evidence, puts the burden of proof 
on the defendant, and deprives the defendant of the right to be judged by the matters and transactions as 
they appeared to him at the time he acted. We fail to see any error in this charge from the exceptions 
taken in this bill. When the court's charge is taken into consideration as a whole, it covers all the 
objections raised by this bill, and we therefore overrule appellant's contention.
        The above objections, as set out in the bills of exception, are the only objections urged by appellant 
in his brief. However, we have examined the other bills in the record, and, after a careful consideration of 
the entire record, we are unable to agree with the contentions made by the appellant in this case. 
Appellant in his brief has not favored us with any authority on any point raised by him, and we are of the 
opinion that he has found none sustaining his contentions, or same would have been cited.
        The record in this case discloses a case where it was largely left to the discretion of the jury as to 
which witnesses the jury would believe, that is, whether they would believe the testimony of the 
defendant and his witnesses or the testimony of the state's witnesses; and, the jury having passed upon 
all the facts, and returned a verdict of manslaughter, which is fully sustained from the testimony of the 
state in this case, and the court having submitted all phases of the case — murder, manslaughter, self-
defense, apparent and real danger, and threats — we find no error in the record, and therefore affirm the 
judgment of the lower court.
        PER CURIAM.
        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.
On Motion for Rehearing.
        HAWKINS, J.
        Appellant predicates his motion for rehearing upon the disposition heretofore made of the questions 
raised by bills of exception 1, 2, and 3, and of his criticism of the fifteenth paragraph of the charge. We 
have again given attention to these particular matters. The portion of the charge at which exception was 
directed is a literal copy of article 1143 of the Penal Code. After setting it out as the general statement of 
the law, the court then makes application of it in language which furnishes no ground of complaint 
whatever. The explanation of the court, which became a part of the bills of exception referred to, when 
accepted by appellant with the explanation attached, makes it clear that the evidence
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elicited over objection was pertinent and proper under the circumstances stated.
        The motion for rehearing is overruled.