205 S.W. 662
WATSON 
v. 
STATE.
(No. 4450.)
Court of Criminal Appeals of Texas.
June 19, 1918.
Rehearing Denied October 9, 1918.
        Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
Page 663
        T. R. Watson was convicted of murder, and he appeals. Affirmed.
        Pat M. Neff, of Waco, R. M. Edwards, of Fairfield, J. Ross Bell, of Teague, L. T. Dashiell, of 
Centerville, and Jed C. Adams, of Dallas, for appellant. John B. McNamara, Co. Atty., of Waco, Cullen F. 
Thomas, of Dallas, Williams & Williams, of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
        DAVIDSON, P. J.
        Appellant was convicted of murder and allotted a long term of years in the penitentiary.
        The party alleged to be killed was John S. Patterson. The facts show that Mr. Patterson was 
commissioner of banking and insurance of the state of Texas, and as such had charge of enforcing the law 
with reference to banking in the state. Appellant and his two sons, J. E. and W. R. Watson, were bankers 
in Freestone county, in the town of Teague, and had been for several years. The bank had been in serious 
trouble from a financial standpoint and its management prior to the time Patterson became commissioner 
of banking and insurance. Appellant and his two sons, who were respectively president, vice president, 
and cashier, controlled and managed the bank and its affairs. There seems from the testimony to have 
been but little, if any, conference between these three parties and the board of directors of the bank. The 
bank had been in trouble with Mr. Collier, Mr. Patterson's predecessor.
        The record is very voluminous on legal questions as well as evidence, covering 1,600 or 1,700 pages 
of typewritten matter. This includes the original bill of exceptions with reference to change of venue. There 
is a great deal of testimony in the record showing the trouble between the banking commissioner and 
appellant and his sons with reference to their management of the bank and its affairs. This runs through 
several years. Several bank examiners had gone over the affairs of the bank and found it practically in an 
insolvent condition as far back as 1914, if not in 1913. These bank examiners had talked at various times 
with appellant about the condition of the bank and sought in various ways to assist the officers in keeping 
the bank in a solvent condition. The bank seems to have been run in violation of the banking laws of the 
state in sundry ways. These matters are all set out in the record and unnecessary to be repeated. 
Appellant was notified of these conditions by these examiners, and by, it seems, Mr. Collier as well as Mr. 
Patterson, and was warned that the bank must rectify its affairs or be closed. Promises were made by 
appellant to conform to the law, but were not carried out. Finally, in 1916, conferences were held between 
one or more of the bank examiners and appellant and one or both of his sons, in regard to the condition of 
the bank and its failure to comply with the law in many respects, and promises were made by appellant 
that these matters would be rectified and the bank put upon a proper basis. The insolvent condition was 
fully and freely discussed; also that its reserve was far below that required by the law, and that appellant 
and sons as officers of the bank had borrowed for themselves from the bank far beyond what the law 
authorized, and this without an order or the consent of the directors. Many of these matters are evidenced 
in writing and correspondence with appellant. Some of these warnings given appellant as president were 
in writing and some in conversations. About May or June, 1916, the affairs of the bank were again 
examined by the bank examiner and found to be insolvent, and the bank examiner had a conversation 
with appellant at Hillsboro, not wishing to go to Teague where the bank was in order to avoid calling 
attention to its condition and thereby injuring the bank. Their purpose was as stated to assist appellant in 
putting the bank "on its feet." The policy of the commissioner of banking and insurance was not to wreck, 
but to sustain all banks of the state, and to this end he rendered all assistance possible to avoid closing it. 
In May or June the reserve was far below what the law demanded, and in August, at the time of the 
killing, instead of having the bank reserve which was supposed to be in excess of $15,000, it only had on 
hand in its cash reserve less than $2,000. When this condition was ascertained from the report of the 
bank examiner Mr. Patterson, with Mr. McKinnon, one of the bank examiners, went to Teague and went 
over the bank books and found the bank hopelessly insolvent and burdened with forged paper to 
approximately $60,000. All previous efforts to assist the bank had been disregarded, and the promises of 
appellant and his sons were not fulfilled, nor was there sought to be any compliance with the demands of 
the commissioner under the agreement on the part of appellant. There was also a great deal of forged 
paper in the bank carried as assets. These forgeries, amounted, it seems, to $60,000, equaling the capital 
stock in amount. A number of these forged papers and perhaps other papers were in possession of 
McKinnon and Mr. Patterson at the time of the homicide. Some of them were in the grip of McKinnon, and 
it seems some of them in the grip carried by Mr. Patterson. On the evening of the homicide the bank 
matters were gone over by Patterson and McKinnon in the bank. The closing hour of the day arrived and 
the bank was closed for business. Appellant left the bank and went to his residence a few blocks away. J. 
E. and W. R. Watson, sons of appellant, and officials of the bank, remained. The bank matters were gone 
over and discussed, and the cash reserve
Page 664
counted and found to be less than $2,000. This money was placed in the safe, locked, and the time 
combination turned. One of the sons alone had the combination and knew how to open the safe. Among 
other items of cash was $890 in currency. This was placed in the safe. A day or two afterwards when the 
officers took charge of the bank and placed it in the hands of a receiver this $890 had disappeared from 
the safe. No one it seems had been in the bank from the time it was closed on the evening of the 
homicide, so as to get in the safe, unless it was appellant or his son. This became the subject of evidence 
and an issue on the trial. After appellant left the bank at the closing hour in the evening, and after a 
conversation between the parties with reference to other matters mentioned, appellant was requested by 
one of his sons over the phone to come to the bank, stating that there was trouble. Appellant shows when 
he received this message, not knowing what trouble was meant, got his pistol and carried it with him to 
the bank. Upon entering the bank his two sons and McKinnon and Patterson were its occupants. A 
conversation occurred in which the different parties engaged and appellant was notified that the bank 
would be closed permanently, and Mr. Patterson ordered Mr. McKinnon to place a notice on the window to 
the effect that the bank was so closed. Appellant's testimony is to the effect that he asked Patterson to 
defer this three days; that he could perhaps make arrangements to put in it the proper reserve and carry 
on the bank business. This was not agreed to by Patterson, and the evidence tends to show that he told 
him that he had been trying to assist them carry on the bank in its insolvent condition and assist him 
under promises that appellant would rectify things, that he had not done so, and it would be closed. At 
this juncture Patterson started out of the bank. The evidence is conflicting as to just the position of the 
parties at this time. The evidence shows that as Patterson passed out of the door appellant shot him, then 
turned and fired at McKinnon. McKinnon testifies after appellant fired one shot at him that one of 
appellant's sons, J. E. Watson, grabbed or took the pistol from his father and fired at him two or three 
times as he ran out the back way. Patterson had his leather case or grip in his hand with papers in it at 
the time he was shot. McKinnon's grip with other papers in it was left in the bank in his flight. After 
Patterson left the door of the bank was immediately closed and the three Watsons remained in there from 
15 to 30 minutes. When McKinnon recovered his grip that night it had been broken open and some of the 
papers had disappeared. Appellant, after these transactions, left the bank, going the back way and went a 
different street towards his home from that he usually traveled. He was seen by a boy to throw torn 
papers in the weeds along the trail he was following en route to his house. These were torn up notes or 
checks that had been in the possession of McKinnon and taken from his grip. The boy, thinking they were 
candidate cards appellant had thrown in the weeds, went to get them, as he said, to prepare them as a 
deck of "flinch cards." Upon reaching the scene he found they were not candidate cards, but were torn up 
papers. Appellant says these papers were torn by his sons and handed to him, and in going home he 
threw them away at the place designated. The testimony of the boy indicates that appellant tore them 
himself and threw them away. It is not considered material whether they were torn in the bank or after he 
left it. Upon the arrival of the stepfather of the boy at home that night the boy informed him of what he 
had seen, and he instructed the boy to get the papers, which he did the next morning. They fell into the 
hands finally of the receiver of the bank. These were some of the papers that carried evidence of forgery. 
Appellant claimed in his testimony that he was not aware of the fact that these notes were forgeries. To 
go into detail would make the statement too lengthy, and it is dismissed with the statement that he was 
evidently aware of the fact of the insolvent condition of the bank and had been two or three years, and 
that these forged papers were used as assets of the bank. Some of them he had copied and kept in the 
bank among the papers of the bank as assets while the original forged notes were used as the basis of 
borrowing money. The shooting occurred in Freestone county. Patterson was carried, after being shot, 
from Teague, in Freestone county, to Waco, in McLennan county, and placed in a hospital. He died in 
Waco in a short time.
        One of appellant's contentions is that the jurisdiction or venue of the case was legally in Freestone, 
and not in McLennan, county, and he filed his plea setting up that question. The statute provides that 
venue may be in either county, where the shooting occurs, or where the party dies.
        Appellant filed an application for continuance which was overruled. There were four witnesses 
mentioned, among those, the father of appellant, a very old man, past 90 years of age. Another was 
called in the record Taz Watson. Two of the witnesses were present. Appellant's father did not attend, it 
seems, and the record indicates that he abandoned any question as to that witness. Taz Watson was 
present and testified contrary to what appellant alleged in his application for continuance he could prove. 
The negro Green did not attend and was physically unable to attend. It seems to be an uncontroverted 
fact that Green was in the last stages of consumption and could not attend court. The trial lasted about
Page 665
six weeks. To secure the testimony of this witness, the state proposed, under the showing made of the 
physical incapacity of the witness, that defendant could take his depositions, and would render every aid 
possible in securing his testimony, and waive all formalities and let his depositions be taken. This was 
declined. We are of opinion that under the showing here made there is no error in this matter.
        Appellant filed a motion to change the venue. This was overruled. The evidence is voluminous, 
covering several hundred pages. The court, approving the bill, qualified it at some length. The court 
certifies that the evidence was conflicting, and in his judgment there was no sufficient reason shown why 
appellant could not obtain a fair trial in McLennan county. Among other things, the court says that:
        "There was no evidence whatever of any activity in connection with any alleged conspiracy, nor was 
there evidence of any dangerous combination. There was no evidence of any excitement or unusual 
interest in this case during the trial thereof, either on the hearing of the application for a change of venue 
or the trial of the case, which consumed something over a month. During the entire time that the court 
was hearing the application for change of venue, there were very few persons in and around the 
courtroom, except those were there under process of the court. This condition prevailed throughout the 
entire time of the trial, with the exception that as the trial began to draw to a close, the number of 
spectators grew larger, as the public did not know exactly when the trial would close and the speech 
making would begin. There were several orators of note, including Jed Adams and Cullen Thomas of 
Dallas, and Trav Dashiel of Leon county, and also the local counsel. The argument of the case attracted 
quite a crowd, but this and a day or two prior to the beginning of the argument were the only times that 
there was any unusual crowd in the courthouse. The interest in the argument, as distinguished from the 
interest in the case, was what attracted this crowd. Otherwise, the attendance of spectators in the trial 
showed conclusively that there was no unusual condition in the sentiment of the county, with reference to 
the case."
        The court also qualifies the bill with reference to the conditions of the case surrounding the 
impaneling of the jury. The qualification covers quite a number of pages. Further qualifying the bill the 
court says:
        "The court understands the law to be that an application for a change of venue is addressed to the 
sound discretion of the court, who is upon the ground and is supposed to be conversant with the 
conditions in his county, and that his action thereon should be determined by his deepest sense of duty, 
and with the full approval of his conscience. The court acted upon this rule in overruling this application 
for a change of venue, and after patiently giving the defendant over a week to introduce testimony in 
support of his motion, there was not left remaining the slightest doubt in the mind of the court that an 
absolutely fair and impartial trial alike to both the state and defendant could be had in McLennan county. 
The court was and is well acquainted with nearly all, if not all, the witnesses for the defendant, and 
conversant with their opportunities of knowing the condition of public sentiment in McLennan county, as 
well as with their interests in the case. It appeared that out of the great number of witnesses summoned 
by the defendant on the motion, that a very large per cent. of those used were former residents of 
Freestone county and acquaintances of the defendant, who were biased in his favor; and opinion evidence 
on the application to change the venue of a case being of such a character as is very largely controlled by 
the will rather than the judgment of the witness. The court for this and other reasons did not attach great 
importance to the opinion of those particular witnesses. As to the other witnesses, some of them were 
men whose chief avocation was hanging around hotels and other public places and engaging every one 
they could in conversation upon current events, and still others with eccentric opinions, in whose 
judgment no one who knew them could attach any great importance. Aside from this, the court knew, as a 
matter of fact and from having seen the general state newspapers and from a knowledge of such things in 
general, that there was practically as much information gained by all of the reading public in Texas as 
there was by the reading portion of the citizenship of McLennan county, and that if a mere one-sided 
newspaper report of a current event was to disqualify the citizenship of this county from jury service and 
require a change of venue, then the same conditions practically would be found in every county in Texas. 
The court, under these conditions, deemed that the best ends of justice and right would unquestionably be 
met by a trial of this case in this county, and by the court exercising the greatest care to see that no 
improper juror or sentiment found his way or its way into the jury box, and that the court should be 
extremely liberal in standing aside jurors for cause; and acting upon this theory a great percentage of the 
jurors whom the court permitted to be stood aside for cause were in fact legally qualified and competent 
jurors under the laws of this state. * * * The matter of the change of venue of this case, as this court 
viewed it, remained in the discretion of the court throughout the impaneling of the jury. The court was, as 
above stated, after the examination of all of the witnesses, of a clear and confident opinion that a fair and 
impartial jury could be impaneled. The examination of the jury confirmed this opinion of the court, and 
had it not done so, he could and would have granted such relief as was necessary to insure a fair trial. 
Whatever conclusions or opinions might have been drawn from the evidence as to whether or not a fair 
jury could be impaneled in this county, it is demonstrated beyond peradventure or doubt that if confidence 
is to be reposed in the honesty of men, a fair and impartial jury was, in fact, secured in this case and that 
without any great trouble."
        Then follows a statement of the examination of the jurors who were selected and sat in the case. 
The above are but brief extracts from the qualification of the judge.
        This bill was accepted by appellant as qualified, and it is thus before this court. As this bill is 
presented we are of opinion that the discretion of the judge is not shown to be sufficiently erroneous, if 
erroneous at all, as to require a reversal. Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858, Judge Ramsey 
used this language:
        "Of necessity in respect to a question of this kind much ought to be left to the discretion and sound 
judgment of the court trying the case, and in no case should the judgment of conviction be set aside on 
account of the action of the trial court in refusing a change of venue unless
Page 666
it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise 
terms above stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331. See, also, Cox v. State, 8 
Tex. Cr. App. 254 [34 Am. Rep. 146]; Bohannon v. State, 14 Tex. Cr. App. 271; Martin v. State, 21 Tex. 
Cr. App. 1 [17 S. W. 430]; Connell v. State [45 Tex. Cr. R. 142], 75 S. W. 512; Reeves v. State [47 Tex. 
Cr. R. 340] 83 S. W. 803; Earles v. State [47 Tex. Cr. R. 559], 85 S. W. 1; Adams v. State [48 Tex. Cr. R. 
452], 93 S. W. 116. After a careful inspection of the record, we do not believe that we could or would be 
justified, in view of the action of the trial court in conflicting evidence, in reversing the judgment on the 
failure of the court to grant a change of venue."
        This case was followed Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52, and Barnett v. State, 76 
Tex. Cr. R. 555, 176 S. W. 580. The writer of this opinion did not agree with the decision in the Barnett 
Case, supra. The disagreement was not on the law, but on the facts, and their application to the law. But 
under the authorities, as this record is presented, we are of opinion that the court did not err in refusing 
to change the venue. The matter is treated as if the bill of exceptions was filed in proper time. It is a very 
serious question as to whether or not the bill was so filed. The transcript shows that the bill of exceptions 
was properly drawn and presented to and approved by the court on the last day of the term, but it shows 
that it was not filed until the 23d of March after the adjournment of court in the previous December. The 
original bill of exceptions was ordered sent up by the trial judge. On the back of this bill of exceptions it 
shows to have been filed in term time. This original bill is not verified so that it can be considered, strictly 
and technically speaking. The clerk does not identify it as the original bill ordered sent up, but we treat 
those matters as rather technical and disregard them and pass on the merits of the bill.
        Another bill recites that while McKinnon was testifying in behalf of the state he testified he examined 
the books and papers of the Farmers' & Merchants' State Bank at Teague, Tex., in May, 1916. That is the 
bank in question. He was then asked what he found. Various objections were urged to this question. He 
answered, "At that time, I found the bank in what I considered an insolvent condition." Objection was 
again urged. The state then asked, "You say that on that occasion you considered the bank insolvent, in 
your opinion?" Objection was urged, and he answered, "Yes, in my opinion, I found enough of the assets 
of the bank that I considered to be what we call bad, not collectable, doubtful." Further answer was not 
given. It seems to have been cut off by objection. The central point of objection seems to have been that 
this was but a conclusion or opinion of the witness, and that the bank papers and books would have been 
the best evidence. There is quite a lengthy qualification to this bill. The court says the witness was an 
officer of the state department of banking and insurance, being what is known as a bank examiner under 
the deceased, John S. Patterson, who was commissioner of banking and insurance at the time. The 
qualification further states that the finding of that department, which was authorized to be made by a 
bank examiner, or upon his report as to the condition of the bank, with reference to solvency, was 
sufficient under the law to justify the closing of the bank by that department, if such officer found said 
bank to be insolvent. That its solvency or insolvency is not a question of opinion, but is a question of fact, 
and defendant could have and did cross-examine said witness fully as to all the facts upon which he based 
his statement that the bank was insolvent, and brought before the jury all the facts bearing upon the 
correctness of the statement of the witness as to the insolvency of said bank. "It was, of course, 
impossible for the jury to have understood the books of the bank and all of the details with reference to 
the papers, or to have had all the records and papers introduced, and even that would have left the 
question as to the solvency of the makers of various notes and the character of the paper. In this case, as 
the court understood it, one of the issues was as to the right of the commissioner of banking and 
insurance, under the law, to close this bank, and of the conclusions reached by that department as to the 
solvency of the bank and as to the good faith of the commissioner in closing the bank, which good faith 
had been and was being questioned by the defendant; and in addition to all of this, the defendant's own 
testimony and the uncontradicted testimony of a great number of witnesses showed conclusively and 
without dispute, and it was an admitted fact in the case, that said bank was in fact insolvent in May, 1916, 
and for a long time prior thereto and continuously thereafter until it was closed by the commissioner, at 
which time he was killed, and it, therefore, occurs to the court that even if there was technical objection to 
this testimony, that it could not be harmful and hurtful to the defendant." This is the qualification placed 
on the bill by the court.
        There are a number of bills of exception reserved to the testimony of McKinnon with reference to his 
examination of and statements concerning the bank. They are all largely to the same effect and go to the 
same line of examination. This record discloses, we think, without question, that the bank was insolvent. 
All of these matters were gone into thoroughly and fully, much of it without objection. Some of it was 
introduced by the state and some by the defendant, covering the history of the bank and its condition 
since 1913 up to the time of the closing of the bank and killing of Patterson. These matters were gone 
over with appellant himself both in person and by correspondence,
Page 667
all of which is shown in the record. All of these matters from every viewpoint show that appellant 
recognized the insolvent condition of the bank and all the matters practically connected with it that were 
brought under discussion in these conversations by the commissioners and others with defendant and his 
sons, as well as the correspondence that passed between appellant, as president of the bank, and Mr. 
Collier, Patterson's predecessor, and Patterson himself, as well as correspondence between bank 
examiners and appellant with reference to matters of the bank and their investigation. In one of these 
letters or communications from the banking department to appellant he was notified of the condition of his 
bank again, and his attention was called to the fact that he was violating quite a number of the statutes 
with reference to the business management of his bank, and was informed that some of these had 
rendered him liable to prosecution for felonies and incarceration in the penitentiary. We are of opinion that 
this record is full of testimony, some of it unquestioned and to which no objection was urged, showing the 
complete insolvency of the bank and the efforts of the banking commissioners and examiners to assist 
appellant in putting the bank on its feet and in running operation again instead of wrecking it. It is shown 
beyond question that the bank had a great number of forged papers, notes used in connection with its 
banking business, as assets. There came an issue also in this connection between appellant's testimony 
and that for the state as to appellant's knowledge of these matters. He stated that while he was president 
of the bank he was only nominally so, and had little to do with its affairs, and was really a figurehead in 
the concern. A great deal of this testimony and correspondence was introduced to meet that phase of 
appellant's testimony. The state's contention was that he was not only the president, but was actively so 
engaged in the business and management of it and in borrowing and seeking to borrow money from 
different sources to carry on the business of the bank, and that he did in fact borrow money; that he 
transcribed a number of the forged notes, or made duplicates, the duplicates being kept in the bank as 
assets and the originals were hypothecated as collateral for borrowing money. There is also evidence from 
him personally, and in writing to the effect that there were papers in the bank he knew to be forgeries; 
that he wrote one party that he had used his name and hoped and thought that it would be all right with 
him. This record is so voluminous with this character of testimony that it would be practically out of the 
question to try to state details. The transcript contains 600 pages of evidence. What has been said will 
cover a large number of bills of exception which are voluminous, and most all of them, if not all, were fully 
qualified by the trial judge, showing his reasons for letting in the testimony. We are of opinion that none 
of the bills show error. All such evidence was admissible also to show malice and motive. The bank was 
wrecked on account of these facts and occurrences which caused him to close its business. The closing of 
the bank brought about the killing by appellant. Branch's Ann. P. C. p. 1042, for cases; Wharton, Crim. 
Ev. pp. 165, 1657, 1649.
        There is another bill reserved to the ruling of the court permitting the state to show that the witness 
Miss Manahan made certain statements corroborative of her testimony on the trial. Her testimony was 
attacked in various ways by laying a predicate to contradict her and to show a denial on her part of any 
knowledge of the killing. In other words, in several ways her testimony was attacked by appellant. In view 
of this condition the state was authorized to sustain her in the manner shown by the bill of exceptions as 
well as by the introduction of evidence of her good reputation as a lady of truth and veracity, as was done.
        Another bill recites that appellant offered evidence of his previous good character both for honesty 
and truthfulness. After several witnesses had been introduced along this line the state admitted that his 
reputation was such as claimed by him through his witnesses. This admission was made largely, as shown 
by the bill, to shorten the trial and save time in examining a great number of witnesses. Under the 
decisions of this state this was proper practice.
        Another bill shows that McKinnon's character as a truthful man was called in question by the 
defendant, especially with reference to laying a predicate for impeachment and contradicting him. The 
state to meet this introduced some witnesses to show the fact that McKinnon was a man of good 
reputation for truth and veracity. Appellant admitted finally that his reputation and standing in the 
respects inquired about was good, but refused to admit that it was such as would justify the jury in 
believing him on oath. The court qualifies this bill by stating the facts as above stated, and that he 
permitted the introduction of testimony as to the fact that from that reputation he was worthy of belief. So 
the exception really was leveled at that part of the testimony, and not at that with reference to the 
admission of his truthfulness and high standing in that regard. We are of opinion there is no merit in this 
matter. Under the decisions it seems that a party who sustains the reputation of the witness is entitled to 
show by testimony that from such reputation he is worthy of credit and belief. Appellant declined to admit 
witness was worthy of credit, but only would admit his good reputation. There was no error in this ruling. 
This was decided as late as Clemens v. State, 193 S. W. 1066.
Page 668
        There were photographs of the interior of the bank presented to the jury showing the location of 
certain parts of it, especially with reference to the desk occupied in the bank by appellant as president. We 
are of opinion this is not a very material matter one way or the other. It tended to explain the position or 
particular locality of the president's office in the bank and as that occupied by appellant as his business 
division in the building.
        Another bill shows when McKinnon ran out of the bank, while the parties were shooting at him, he 
left his grip with a lot of papers in it; that he recovered this grip a few hours later the same evening, it 
being brought to him by the sheriff; that it had been rifled of its contents. There were some objections as 
to the manner of identifying this and what papers were taken, etc. We are of opinion there is nothing 
worthy of consideration in reference to this matter.
        There was an exception reserved to statements made by Patterson immediately after being shot, 
and also later, made to two physicians who were called to attend him. Most of this, if not all of it, was res 
gestæ, and that made to the physicians was dying declarations. These matters were properly admitted.
        While on the witness stand appellant, testifying in his own behalf, was required on cross-examination 
to answer the state's inquiry and state that he had been indicted in 19 cases charging him with forgery in 
Freestone county, and that the indictments had been returned since the shooting of John S. Patterson, 
and had been returned by a grand jury of Freestone county since this case was called for trial in the 
district court of McLennan county. It was claimed this was prejudicial to his rights. The court admitted this 
as explained by him because the defendant had filed an application for suspended sentence. We are of 
opinion that this was admissible under the circumstances with reference to this matter, and that all these 
matters had been shown before the jury anyway, except the mere fact of presenting indictments, and his 
connection with the forgeries and other matters running through three or four years in the conduct of the 
bank. This testimony could, it occurs to us, be considered by the jury with reference to his plea for 
suspended sentence. The jury, however, failed to regard the suspended sentence plea favorably, and 
convicted him of murder, and assessed his punishment at 99 years in the penitentiary. Bearing upon his 
plea for suspended sentence, we think this testimony was not erroneous.
        While on the witness stand McKinnon was asked if he did not state to Mrs. Waller Baker, or in her 
presence, that neither he nor deceased Patterson was armed at the time of the shooting of Patterson, but 
that the defendant, in his opinion, believed Mr. Patterson was armed. This was offered by the appellant, 
and the state urged exception, which was sustained by the court. This we think shows no error. It was but 
the expression of an opinion on his part that he (defendant) believed Mr. Patterson was armed. It was not 
of a material character, and under the circumstances we are of opinion it was not admissible, and in any 
event was but a conclusion or opinion of the witness without any fact upon which to predicate it.
        Another bill recites that while Pat Neff, leading counsel for appellant, was closing his argument for 
the defendant, and just before he had finished, Mrs. John S. Patterson, widow of deceased, who had 
testified as a witness in the case, but who had been excused from the rule by counsel for both sides and 
the court, had kept her place during the entire hearing of this case within a few feet of the jury and in 
plain view of them, she being during all the time dressed in deep mourning, arose from her seat, and in 
the presence and hearing of the jury said to Pat Neff:
        "Yes, you claimed to be the friend of my husband and followed him to the grave."
        This bill is qualified by the judge as follows:
        "In the opinion of the court Mr. Neff provoked Mrs. Patterson to make the remark complained of. 
While he as one of defendant's counsel was addressing the jury he turned toward Mrs. Patterson, and, 
among other things, said, in substance: `For the little woman in black sitting over there, I have nothing 
but the deepest sympathy.'"
        As explained there is nothing in this requiring a reversal.
        There is also a bill of exceptions in regard to the introduction of the coat supposed to have been 
worn by deceased at the time he was shot. We deem it unnecessary to go into a detailed discussion of this 
bill. As explained by the court there seems to be no merit in this matter. There was a sharp contention 
about some of the matters incident to the shooting and location of the parties, and the wounds, etc., that 
would justify the court in permitting the coat to be shown to the jury. There was little, if any, blood on the 
coat, and it was introduced for the purpose indicated by the court.
        The court gave the following charge, which appellant contends was erroneous:
        "Under the facts proven in this case, John S. Patterson, as commissioner of banking and insurance of 
the state of Texas, had the right, under the laws of such state, to close the Farmers' & Merchants' State 
Bank of Teague and take charge of its affairs at the time he was shot."
        This is not a charge upon the weight of the evidence. Mr. Patterson was shown to be the banking 
commissioner. This did not form an issue. There was no controversy about this, and it was not only proved 
by
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all the testimony, but was a conceded fact, and that he was at appellant's bank at the time he was shot as 
such commissioner looking after the affairs of the bank. Being such commissioner, he was authorized 
under the law to close the bank where the conditions justified such action. The legal proposition is, that as 
such commissioner he had the authority to close the bank. The law clothed him with such authority, and it 
is not a charge upon the weight of the evidence, but is a charge directly stating the law as enacted by the 
Legislature. Even if it was a proposition of evidence and not of law, still this court has held in numerous 
decisions that where there is no issue on a given fact, but it is conceded and proved without contradiction 
that such fact exists, then it would not be an assumption for the court to assume in his charge the 
existence of such fact. We deem it unnecessary to go into a discussion of this question further.
        The court's charge on self-defense is criticized. It is as follows:
        "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary 
force to protect his life or person, and it is not necessary that there should be actual danger, provided he 
acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, 
and in such case the party acting under such real or apparent danger is in no event bound to retreat in 
order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed 
the said John S. Patterson as charged, but further believe that at the time of so doing the deceased had 
made, or that it reasonably appeared to the defendant that he had made or was about to make, an attack 
on him, real or apparent, which, from the manner and character of it caused him to have a reasonable 
expectation of death or serious bodily injury, and that acting under such reasonable expectation or fear 
the defendant shot and killed the deceased, then you should acquit him, or, if you have a reasonable 
doubt thereof, you will acquit him."
        The objection is that this charge does not directly apply the law to the facts, and that the charge was 
confusing rather than elucidating. We are of opinion that under the facts of this case these exceptions are 
not correctly taken. Such charge is ordinarily sufficient. Appellant's testimony raising the issue of self-
defense was testified by himself, and his language in this connection is as follows:
        "I was talking to Mr. Patterson, pleading with him, telling him that if he closed the bank I would lose 
everything I had on earth, and it would not hurt him any to let it stay open three days and they run it; I 
told him that time and time again — just talking to him — everything would be lost. After making that talk 
to him three or four times, we got nearly to the door, just walking along. I do not know where McKinnon 
was; he was not there. When Mr. Patterson got nearly to the door he turned around, and I told him to 
come back and sit down and talk it over and let's get together and let us have something so as not to be 
wiped off the face of the earth, like the closing of the bank. He just turned around and then said, `Both of 
your boys have lied to me, and I would not believe a damn thing you say.' I said, `That is mighty hard to 
take,' and he said, `You can take that, or worse.' J. E. Watson remarked, `Look out, Papa!' and when he 
said `Look out, Papa!' I just grabbed the gun and shot. I did not know whether I hit him or not. Q. What 
did you see, if anything, when Eddie said, `Look out, Papa!' what did you see with reference to Mr. 
Patterson? A. He had his right hand right in this shape (defendant indicating by putting his thumb inside 
the right top side of waistband of trousers, fingers outside). I was not looking at his hand, and when I 
looked I saw it just like that, and that is when I shot. Mr. Patterson was standing on inside of the bank 
right close to the left door, and went out instantly after I shot. The windows were all shaded, as they had 
been left. Q. What did you next see and do? A. I just turned around a little, and Mr. McKinnon was coming 
at me, and I shot at him as he was coming at me. He said something. I don't know what he said; I did not 
know whether I hit him or not. I shot a time or two more; I really cannot tell what I did do. I did not know 
where Mr. McKinnon was standing when I shot Mr. Patterson; did not observe him standing where Mr. 
Patterson was; I first observed him standing over to my left."
        This is the defendant's theory of the shooting.
        The state's testimony is to the effect that Patterson had just stepped out of the bank building before 
T. R. Watson shot him. Such is McKinnon's testimony. He further states:
        "I came right out from behind the fixtures to post this notice, and the three Watsons came right out 
with me, and Mr. Patterson was coming ahead, and he made the remark that he was going to supper. The 
last time I saw Mr. Patterson he was standing with his fingers hooked in his trousers, in the waistband of 
his trousers, like this. He had on a linen suit; it was a hot day, and he did not have on a vest; just a linen 
coat and trousers and holding his pouch in the fingers of his right hand. That pouch was a leather pouch, 
that's the kind that is used to carry papers in; I imagine it was 18 inches long or something like that, 
made of black leather. I don't remember Mr. Patterson saying anything when the shots were fired. He did 
not say anything as far as I know. I would say that the defendant was approximately 4 or 5 feet from Mr. 
Patterson when he shot; he was right on him; it burned his face, the powder. I did not say anything to the 
defendant or to J. E. Watson as Mr. Patterson stepped out of the bank. I had not done anything at the 
time the defendant turned the gun on me; I said nothing to him, only I was posting the notice on the 
door. I had put on my coat just a few minutes before I went on the outside, and I was using my hands 
there in the plain sight of the three of them posting the notice on the door."
        So it will be seen that Patterson at the time he was shot had the thumb of his right hand in the 
waistband of his trousers and his fingers hanging down. McKinnon's testimony shows that Patterson's right 
thumb was fastened in the waistband of his trousers, and with the remainder of his fingers he held this 
leather pouch or grip. The testimony shows that Patterson had the grip in his hand and left the place of 
the shooting with it in his hand. It is more than
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questionable that the issue of self-defense was raised, even by the testimony of appellant. Just prior to 
the shooting the parties seem to have been discussing with Patterson the propriety of their being given 
three days in which to straighten up their bank matters, and being informed by Patterson of the failure 
heretofore under promises to do so, and that he purposed to close the bank without further trouble, and 
started out of the bank, and then as he passed out was shot. If self-defense was in the case from this 
testimony, then we are of opinion the charge sufficiently applied the law in regard to that phase of the 
case.
        There are 40 bills of exception in the record, and these cover over 700 pages of this very voluminous 
transcript. The statement of facts contains an additional 600 pages, and the original bill of exceptions 
contains something over 300 pages. Many of the bills have been treated in a general way as bearing upon 
the same subject-matter. To have treated each bill separately and gone into all details of appellant's 
contentions would have required an unnecessary voluminous opinion without resulting good.
        Finding no reversible error in the record, it is ordered that the judgment be affirmed.
        PRENDERGAST, J.
        When this cause was submitted, the oral argument impressed me that some errors had been 
committed on the trial. Since the submission I have had no opportunity to read and study this very 
voluminous record. Therefore I am not now prepared to express any opinion, and for the present do not 
express any.