244 S.W. 1019
JOHNSON 
v. 
STATE.
(No. 7104.)
Court of Criminal Appeals of Texas.
November 8, 1922.
Page 1020
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        J. L. Johnson was convicted of murder, and he appeals. Affirmed.
        R. G. Storey, Asst. Atty. Gen., for the State.
        LATTIMORE, J.
        Appellant was convicted in the district court of Freestone county of the offense of murder, and his 
punishment fixed at 15 years in the penitentiary. There is no brief on file for appellant.
        The parties to the killing were negroes. Deceased was walking along the road with a negro girl, 
Mazarene Peterson. Another negro couple were following them a short distance behind. The record shows 
that appellant had been keeping company with Mazarene. On the occasion in question, riding on 
horseback, appellant overtook the other negroes. According to the state witnesses, he ordered deceased 
to go on up the road. Appellant had a shotgun. Deceased went on up the road as ordered. Appellant 
jumped off his horse, raised his gun, and told deceased to take his hands out of his pockets. Mazarene 
and the other negroes fled. As they fled, appellant fired and killed deceased. After this shot, and before his 
death, deceased fired one or two shots from a pistol which he had. Testifying in his own behalf appellant 
claimed deceased had made threats against him, and that when he approached him at the time of the 
homicide deceased looked at him and put his hands in his pocket, and that he asked deceased to go up 
the road; that, thinking deceased had something, he got off his horse and came around in front of it, and 
as he did so he pulled the trigger of his gun and shot; that before he shot deceased had snapped his pistol 
at him; that after he shot deceased the latter shot twice at him with a pistol, one bullet striking his gun 
and glancing off and going through appellant's clothes. This is a sufficient statement of the facts.
        The first bill of exceptions complains of the argument of the district attorney. It is made to appear 
that said attorney stated:
        "Gentlemen of the jury, we could not introduce testimony regarding the character of the deceased or 
of the defendant. The defendant could introduce such testimony, but has not done so. I ask you, 
gentlemen, why?"
        It is also made to appear that immediately upon the making of such remark objection was made, 
which was sustained by the court, and the court then in writing instructed the jury not to consider said 
remark. It is not shown what led up to or induced or caused the remark, or that same was not an 
inadvertent statement. We have held that since the reputation of the deceased can only be put in issue by 
the defense, his failure to introduce evidence showing such reputation to be bad may be commented on 
by the state. Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765. Unless reference to the failure of the 
defendant to prove his own good reputation is in some way caused by the argument of the defense 
counsel, we have usually held such references to be improper, but we know of no case which has been 
reversed solely therefor. In some of the cases state's counsel has been criticized for dwelling at length 
upon the failure to introduce such proof. Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70; Turner v. 
State, 39 Tex. Cr. R. 322, 45 S. W. 1020. In these cases, however, it will be observed that the trial court 
refused to sustain the objection of the appellant to the argument, which was very
Page 1021
much more extended and emphatic than that contained in appellant's bill of exceptions, and the 
statements in the opinions of this court that the action was error seem to be directed at the failure of the 
trial court to instruct the jury not to consider the improper argument. We regard such argument as 
improper, but in a case such as that now before us we do not think it of such materiality and so hurtful as 
that same could not be cured and corrected by the prompt action of the trial court in instructing the jury 
not to consider same. King v. State, 32 Tex. Cr. R. 463, 24 S. W. 514; Hunter v. State, 59 Tex. Cr. R. 
439, 129 S. W. 125; Patterson v. State, 87 Tex. Cr. R. 106, 221 S. W. 596.
        A witness testified that after the shotgun fired she heard a voice crying out. Asked what was said by 
the person so crying out, witness testified:
        "I will state he was saying: `Oh, Lordy! somebody come and help me. I am lying here dying.'"
        The statement was res gestæ and properly admitted. In section 83 of his Annotated P. C., Mr. 
Branch cites many authorities supporting this contention.
        That a witness had been in the courtroom and had heard the testimony of other witnesses, the rule 
having been invoked, is a matter addressed largely to the discretion of the trial court. It appears that the 
testimony of said witness was for the purpose of identifying the clothing worn by deceased at the time of 
the homicide. It further appears that the testimony heard by said witness had no relation whatever to said 
clothing. The matter was within the discretion of the trial judge.
        Deceased was shot just above the left hip pocket. The proximity of the parties at the time of the 
shooting was an issue. The clothing worn by deceased evidenced the size and character of hole made by 
the shot, and might have aided in the solution of the issue mentioned. The admission of the trousers and 
drawers of deceased through which the shot had gone was not erroneous.
        The exception to the court's charge because same submitted the law of murder was not well taken. 
The state's proof amply supported the proposition of a killing upon malice and without justification.
        The rejection of testimony showing that on the morning of the homicide deceased had refused to 
lend his pistol to another party, saying, "I am going to need it," was not erroneous. It was not shown that 
deceased expected to meet appellant on that day, and there was nothing to indicate either an intention or 
fear of trouble with appellant, or that deceased expected a need of the pistol in any way connected with 
appellant. The record reflects the further fact that during the day of the homicide and prior thereto 
deceased was with appellant, and made no attempt to use the pistol.
        Appellant moved in arrest of judgment upon the ground that the charge in the indictment that he 
"did unlawfully and with malice aforethought kill and murder Oliver Scott by shooting him with a gun" was 
bad because of the use of the word "unlawfully." We are unable to see the force of the contention. If the 
killing was with malice aforethought it was unlawful, and to so state in the indictment did not vitiate that 
instrument.
        We have carefully considered each ground of this appeal. We think the record devoid of reversible 
error.
        The judgment is affirmed.