resist and overcome the attempt; and if he uses only such force, and becomes excited because of the interference, and is rendered incapable of cool reflection, and then kills the father, the offense is only manslaughter. 14. SAME-JUSTIFIABLE HOMICIDE.

If in the struggle which ensues the husband's life is in danger from an attack about to be made on him by her father, he is justified in killing him.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Sam Cole was convicted of murder in the second degree, and he appeals. Reversed.

I. J. Rice, Wilkerson & Lee, and Woodward, Baker & Woodward, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of murder in the second degree, and his punishment fixed at six years' confinement in the penitentiary. This case came before us on a former appeal, and was reversed. See 75 S. W. 527, 8 Tex. Ct. Rep. 141. The facts are fully stated in that opinion, and those presented in this record are substantially the same, and we accordingly refer to that opinion for the facts.

Appellant objected to the evidence offered by the state of blood found on the ground near where the homicide was committed; and, further, that the court improperly admitted evidence of the wounds on deceased's body; that there were two holes; and the evidence of another witness that the wound was a large one-that he could stick his two fingers into the hole. Under the explanation given by the court to the effect that this testimony was pertinent to certain issues in the case, it occurs to us there was no error in its admission.

Nor do we think the exceptions taken by appellant to the remarks of the district attorney or counsel for the state, as presented in bills Nos. 3 and 5, show any error.

Bill No. 8 is an exception taken to the action of the court refusing to permit Mrs. Lewis and Mrs. Thompson to state what Mrs. Hudson (wife of deceased) told them at the house of Mrs. Lewis some time before the homicide, to wit: "That she did not know whether defendant's wife was going to stay with her. That Sam Cole had written for her to come to him, and she cried and wanted to go, and I consented. I must consent to let her go. But Mr. Hudson says before he shall take her he would kill him." The court explains that all of this testimony was admitted except the last portion thereof, to wit, the threat of Mr. Hudson. Of course, it would have been competent for the defendant to have proven by original testimony-by Mrs. Hudson herself-that deceased had threatened appellant; but this could not be proven by hearsay testimony, such as that offered. Possibly, if Mrs. Hudson had been placed on the stand by the dote, and she had been asked about this

threat, and had denied it, she might have been contradicted on this subject by the defendant. But such is not the attitude of the question as shown in the bill of exceptions.

We do not think it was relevant to any issue in this case for the state to have proven, as was done, that Mrs. Lewis had two daughters-one married, and that she had left her husband; and one unmarried-and that defendant visited her house sometimes, and on one occasion went with her daughters to church. While this does not appear to have been material to any issue in the case, we fail to see any special injury on account of its introduction to appellant.

We believe it was competent, as shown by bills 11, 12, and 13, and some other bills, for appellant to have shown what he told others about his family trouble, and the acts of deceased in endeavoring to keep his wife from living with him. We believe it was particularly pertinent in this connection to have shown by the witness Baker what occurred between appellant and himself some time prior to the homicide with reference to getting a writ of habeas corpus in order to secure the custody of his wife, or to take her away from her father's house. All this testimony was objected to on the ground that it was self-serving. It does not occur to us that it was made to serve any purpose appellant then had in view; certainly not with reference to the slaying of deceased and fabrication of testimony against such event. On the contrary, it shows, as we take it, an earnest effort on the part of appellant to get his wife away from the control of her father; and it shows a belief on his part that her father was endeavoring to separate them; and it shows in this respect the condition of appellant's mind at the time, which has an important bearing on the case as made by the state against him. The state's case tends to show that deceased was kindly disposed toward appellant, and he had no desire to separate appellant's wife from him. Poole v. State (Tex. Cr. App.) 76 S. W. 565.

Appellant insists that the court committed an error in rejecting evidence on the part of appellant to the effect that some time before the homicide he went to the town of Coleman with his father-in-law, and that his father-in-law's mission was to ascertain if he had been indicted for improperly rendering his taxes; that his father-in-law on their return home stated that the tax assessor had not indicted him; that, if he had indicted him, he would have killed him, or words to that effect. Appellant relied on self-defense, because of an attack on the part of deceased at the time of the homicide, and his apprehension of danger in that connection. The doctrine seems to be that under such circumstances appellant has the right to have in evidence any fact which tends to prove the bona fides of his belief that he was in danger. In that respect he can rely on

proof of the desperate character of his adversary, or on proof of some special act or communication by deceased to him, which indicates his dangerous character. Childers v. State, 30 Tex. App. 193, 16 S. W. 903, 28 Am. St. Rep. 899; Dodson v. State (Tex. Cr. App.) 70 S. W. 969. However, we do not believe it was competent to show that deceased could have told appellant on one occasion that he had run away from East Texas, and that he had a great deal of trouble with officers, and it cost him a good deal to get out of it, as it is not shown what this trouble

was.

It occurs to us that the two letters offered by appellant in evidence, written by him from San Angelo to his wife, who was then at her father's, in April, 1902, were admissible in evidence. On the former appeal we held that the letters of appellant's wife written about the same time to him were admissible as showing their domestic relations; that they were affectionately inclined to each other. This was in rebuttal of the state's case that the relations were not friendly; that appellant was unkind to his wife. Now, it occurs to us that, if his wife's letters were admissible, by a stronger reason his own letters were admissible. They serve to show directly his affection towards his wife, his dissatisfaction at her living with her father, and his desire to have her come and live with him; and in this connection his idea that his father-in-law did not want him about him, and did not want his daughter (appellant's wife) to leave his roof. We note the court explains that these letters offered do not seem to be in response to any letters of his wife to him. It does not occur to us that their admission would depend on their being responsive, unless it could be said that his wife's letters having been introduced, and his in response thereto being a part of the same transaction, should also be admitted on that account. We believe they were admissible on another principlethat they were not self-serving; that they were in rebuttal of the state's case on an important feature thereof, and served to show defendant's state of mind with reference to his wife and his father-in-law at that time.

Nor do we think it was proper, as was done, to permit the state to prove that appellant during his confinement in jail was engaged in studying law. Not that the study of law should at any time be the subject of censure, but the peculiar use which the state made of this fact before the jury was calculated to injure him. It must be admitted that among certain classes there is an antipathy to lawyers. Whether this is well or ill founded is not the question. But this is not the serious matter complained of here. It is that counsel used this testimony to show that appellant was engaged in the study of law in order to enable him to fabricate a defense to the prosecution. The testimony was not relevant or pertinent to any issue

in the case, and the use of it was calculated to injure appellant.

On the former appeal we held that the testimony of certain witness regarding the physical condition of deceased shortly before the homicide was inadmissible. It appears that on this trial some of this same testimony, to wit, that of Mrs. Hanks, was admitted to the effect "that C. C. Hudson looked very feeble. I saw his side. There was a sink in his side. [This was a few weeks before the homicide.]" This testimony was objected to on the ground that said witness was a nonexpert, and her testimony was a mere opinion, except as to the sink in his side; and that the same was made in the absence of appellant, and he was not shown to have had any knowledge thereof. The court, however, explains this by stating "that defendant offered evidence tending to show that deceased was a man of fine physical power, and this evidence was admitted in rebuttal of this; there being evidence that deceased received an injury a few weeks before he was killed, and that defendant knew it." If defendant knew that the sink in deceased's side was caused by the injury said to have been received, and knew of that injury, then the explanation of the court might have rendered the same admissible. We believe that this testimony should have been rejected. Of course, it was competent to prove, in rebuttal of the state's evidence, that the deceased had been sick or had been injured recently, and was still feeble, suffering from such recent illness, if this matter was reasonably within the knowledge of appellant; and it occurs to us that it was, though, as stated, it does not appear that appellant had any knowledge there was a hole or sink in deceased's side. Nor are we informed how this affected deceased.

Appellant strenuously urges that the court committed error in allowing the wife of appellant to testify against him to the effect that appellant immediately on shooting deceased exclaimed, "I told you I would do it," and, further, that immediately thereafter he drove the buggy a little piece, and hurriedly returned, and again made the same declaration. It was shown in this connection that since the homicide appellant's wife had procured a divorce from him; but it is claimed by appellant that, notwithstanding this divorce, the testimony here complained of was a confidential communication between husband and wife, and that under our statute her lips were forever closed against testifying thereto. In support of this proposition we are cited to Brock v. State, 71 S. W. 20, 6 Tex. Ct. Rep. 319; Davis v. State, 77 S. W. 451, 8 Tex. Ct. Rep. 766. It does not occur to us that either of these cases apply to the question here presented. Brock's Case merely held that a wife could not testify against her husband, although no objection was made, and no bill of exceptions taken to her testifying. In Davis' Case it appears

there was a confidential communication introduced through the wife after her divorce from her husband. Article 774 (Code Cr. Proc. 1895) provides that neither the husband nor wife shall in any case testify as to communications made by one to the other while married, nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and the declaration or communica

crying as if her heart would break, and said that Sam had told her to 'go to the house, God damn your soul to hell' "; that she did not hear Sam say this, but his wife told her. It seems that this testimony was admitted without objection, or, rather, it was adduced by appellant. It appears in this connection that he had endeavored to elicit what occurred at that time, and Mrs. Hanks refused to answer the direct question, and said she would have to explain it. As soon as this witness made the statement as to what Mrs. Cole told her on her return from the lot, ap

the husband to the wife goes to extenuate or justify the offense for which either is on trial. So the question here is, was the declaration of appellant a confidential communication between husband and wife? We hold not. It was unquestionably a part of the res gestæ. It was an exclamation of the husband immediately on firing the shot which killed deceased, made in the presence of both his wife and his wife's mother. It was the transaction voicing itself in the presence of his wife and another, and not a confidential communication. We held that it was admissible. See Kenney v. State, 79 S. W. 817, 9 Tex. Ct. Rep. 888, and authorities there cited, especially Cook v. State, 22 Tex. App. 511, 3 S. W. 749.

In this same connection the state was permitted to introduce the contents of a letter written by deceased to his daughter when she was living with her husband at Big Springs, some year or more before the homicide. There are some expressions of good will and esteem on the part of deceased toward his son-in-law, and appellant objected to these expressions of good will on the ground that they were confidential communications, because the letter in question was received by appellant's wife, and the same was handed to appellant, who read it. It occurs to us that this letter was within the rule of confidential communications. But for the fact that appellant was the husband of deceased's daughter, he would not likely have been permitted to read the letter in question. We can see no difference between this and if deceased had told his daughter of his regard and esteem for her husband, and she had been allowed to testify that she had told her husband of these expressions of deceased, during their marriage. We believe that this testimony was inadmissible.

It does not occur to us that the refusal of appellant's wife to answer questions in the divorce proceedings by her husband until she should see her lawyer was admissible in evidence; much less that the certificates of officers to that effect were admissible.

The testimony of Mrs. Hanks to the effect that on one occasion prior to the homicide appellant and his wife were at Mrs. Hanks' house, and that they had a little quarrel at the breakfast table. Afterwards appellant went to the lot, and his wife followed him there, "and afterwards came back

state objected on the ground that appellant had drawn it out, and ought not to be allowed to withdraw it. The defendant's attorney abandoned the objection at that time, and let it go; but later in the trial he renewed his motion to expunge said testimony from before the jury, which the court refused to do. In this, we think, the court was in error. Burke v. State, 15 Tex. App. 167.

Appellant questions the court's charge on manslaughter, contending that the court should have grouped all the various instances of provocation which he claims were committed against him by the deceased, and have instructed the jury, in effect, that this constituted adequate cause. We do not agree with this contention. The court told the jury that the provocation must arise at the time, but they could look to all the facts and circumstances in evidence in order to intensify and make out the provocation at the time. This, we think, was sufficient.

The court also instructed the jury that, if appellant killed, deceased to prevent him taking his wife and child from him, but not in defense of himself from an attack by deceased in connection with his effort to take possession of appellant's wife and child; that appellant's mind was thereby excited, and he was rendered incapable of cool reflection, and on that account he slew deceased-it would be manslaughter. It is contended that this charge unduly limits the right of appellant in regard to maintaining his custody of his wife and child, inasmuch as it instructs the jury that he would have the right to resist such interference or restraint on the part of deceased by such means as reasonably appeared necessary to resist such restraint, but he could use no greater force than reasonably appeared to him necessary to resist such restraint. It must be admitted that this charge is not very clear, and is susceptible of the construction placed on it by appellant. The court should have told the jury in plain language that appellant had the right to the custody of his wife and child, she consenting to go with him, and that deceased had no right to interfere with this custody, and that, if deceased did interfere, or attempted to gain possession of appellant's wife and child, appellant had the right to resist such attempt, and to use all force necessary to overcome such interference and protect his own

possession; and, if he was using only such force as was reasonably necessary for that purpose, and his mind became excited because of the deceased's interference to get possession of his wife and child, and he was rendered incapable of cool reflection, and he slew deceased not in his necessary or apparently necessary self-defense, then his offease would be no more than manslaughter. The same vice above pointed out enters into a subsequent charge, which is complained of. For instance, the court instructs the jury that the resistance which appellant would have the right to make must be proportionate to the injury about to be inflicted. It must only be such as is necessary to repel the aggression, and the use of any greater force would be illegal. We understand the law to be that he cannot only repel the aggression, but he can overcome the aggression by the use of any force that is reasonably necessary for that purpose so as to maintain and secure the custody of his wife and child, and prevent deceased from gaining such custody. However, a subsequent portion of the charge does seem to express the idea intended to be conveyed by what has been said; that is, the court fairly presented this matter to the jury, as follows: "Now if, from the evidence in this case, you believe that defendant, Sam Cole, shot and killed C. C. Hudson, but believe that at the time he did so, if he did so, C. C. Hudson, either alone or acting with his wife, was restraining, or at the time was endeavoring to restrain, Lydia Cole from voluntarily leaving the home of said Hudson with defendant, or if from the evidence you believe that it reasonably appeared to defendant at the time, from the acts and conduct of said C. C. Hudson or said Hudson and his wife, or from the acts and statements, if any, of said Hudson or said Hudson and wife, that said Hudson was restraining, or was at the time attempting to restrain, Lydia Cole from voluntarily leaving the home of said Hudson with defendant, then you are instructed that defendant would have been justified in using a degree of force sutficient to overcome such restraint, but no greater."

We also believe that the charge on selfdefense, which follows this, was in accord with the law; that is, we understand said charge to announce a correct principle in this: that appellant had a right to the custody of his wife and child, she consenting to go with him, and that deceased had no right to interfere to prevent her from so doing, and that if he alone, or in conjunction with his wife, did interfere, appellant had the right to resist such interference, and to oppose force with force, in order to protect his custody of his wife and child; and if in the struggle which ensued appellant's life was in danger, or his person in danger of serious bodily injury from an attack made or about to be made on him by deceased, or deceased in conjunction with his wife, then he had

In a prosecution for seduction, an instruction that the jury could not find a verdict of guilty upon the testimony of prosecutrix unless the same was corroborated by other testimony, and that it was necessary that the witness be corroborated both as to the promise of marriage and as to the fact of intercourse, was on the weight of the testimony in assuming that prosecutrix had told the truth.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1731, 1772, 1773.] 2. SAME-EVIDENCE-SUFFICIENCY.

Evidence held insuflicient to support a conviction for seduction.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Emmal Garlas was convicted of seduction, and appeals. Reversed.

R. E. Taylor and J. C. Simmons, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The facts, briefly stated, show that appellant was a farmer, living in Tom Green county, near Fred Hoenghaus, the father of prosecutrix, a farmer in the same neighborhood. Appellant at the time was a widower with three small children. Prosecutrix, a girl of 19 years of age, at the time was living in Ballinger, some 15 or 20 miles distant. Appellant, on the day before the alleged seduction, went over to where Hoenghaus was at work. The latter, asked him if he did not want to marry. Appellant told him he would if he could find a good woman. Hoenghaus told him he had a mighty good girl, and he need not be ashamed, if he wanted his girl, just to ask for her. Appellant asked where his girl was, and he told him she was in Ballinger at work; that if he wanted to marry his daughter he would have to see his wife about the matter, and if she was willing he could go to Ballinger and bring her home, but he did not have the money to pay her railroad fare back to Ballinger. Defendant told him that was all right, to go and bring her home, and that he would furnish the money to pay her fare back, and that if she suited him he would marry her. On the next morning Hoenghaus and his

wife went in the wagon to Ballinger for their daughter Lissie. They told her of appellant's proposition, and she agreed to it, and accompanied them home from Ballinger on the same day. When they arrived at home, appellant was either there, or came shortly afterwards. After supper, Lissie and defendant went in the room, adjoining Honeghaus and wife, and Hoenghaus relates that he heard the cot creak in the room after they had been in there a little time; and that directly the parties left the room, and went outdoors, and did not return until about 2 o'clock in the morning. Prosecutrix here takes up the story, and she relates that before supper, while appellant and she were in the room together, appellant said to her, "I wish you would be my wife," and she replied, "I wish the same." When they went into supper he said to prosecutrix, "Now we are engaged." After supper they went out into the yard, and talked a while where her father and mother were. They then went back into the house and sat down on a lounge. Appellant asked her to take a walk with him. They got up, went out of the house about 10 o'clock, walked about 300 yards from the house, and sat down on a rock. After they had been sitting there a short time, defendant asked her if she would give him some. She told him she did not, want to. They then got up and walked about 30 or 40 yards further, and he again asked her and begged her for about five minites to let him have some. She then submitted. They then waited about five minutes, and he did it to her again. Twice was all that he did it to her that night. Defendant said nothing to her about wanting to marry her that night, except as above related. She further states that she would not have permitted him to do it to her if he had not told her at the house that he wished she would be his wife, and she had agreed to be his wife; that defendant is the father of the baby she then held in her arms; that, after they got up from where they were having intercourse and started back to the house, defendant gave her 50 cents to pay her railroad fare back to Ballinger. On cross-examination she stated that she had only known defendant two or three hours before she had intercourse with him; never met him before that evening; that, when he first proposed to copulate with her, she told him she would rather wait until they were married, but he insisted on having intercourse with her then; that they were engaged, and that was all he said to her before she submitted to him. This is substantially the state's case. Appellant relates the matter about as follows: He tells how prosecutrix's parents sent to Ballinger for her about as the state's witnesses testified. He says, "I did not tell Mr. Hoenghaus I would give her 50 cents to pay her railroad fare back to Ballinger if she did not suit me;" that on the evening of the day they brought her back from Ballinger

he went over and met the girl. They stood in the door awhile, and then went in to supper. After supper, they went back in the house and sat down on a little single lounge. Soon after they sat down, he said, "I guess you know what I came for?" and she said, "Yes, my father told me." "I then put my arm around her, and began to feel her; felt all over her, and she did not raise any objections." He then asked her if she would take a walk with him, and she said she would. They walked away from the house about 250 yards, and sat down. He asked her if she would give him some. She at first did not say whether she would or not. He then proposed to walk a little farther, and he asked her again if she would copulate with him. She said yes; that he might if he would do it to her standing up; that he tried it, and told her she had been tampered with; that they could not do anything that way. She then told him that Fritz Schlakey was the only fellow that had ever done it to her, but that he had. He then told her to lie down, and she pulled off her drawers and lay down, and he copulated with her. He had no trouble in penetrating her; she did not complain of it hurting her. Saw her unbutton her drawers on the side, and took them off. "We waited awhile and I done it to her again, and then we went on back to the house, and I went home." That he did not promise her at any time that he would marry her. All that he said to her about marrying was, "I guess you know what I came for?" and she said that her father had told her. That it was a fact that he intended to marry her, and would have done so had she not told him that Fritz Schlakey had done it to her, and if he had not heard so much about her character. This is a sufficient statement of the case in order to discuss the assignments.

Appellant excepted to the charge given by the court on accomplice testimony, on the ground that the same is upon the weight of the testimony. Said charge is as follows: "You are further instructed that you cannot find a verdict of guilty in this case upon the testimony of Lissie Honeghaus unless the same is corroborated by other testimony tending to connect defendant with the offense committed, and it is necessary that said witness be corroborated both as to the promise of marriage and as to the fact (if such is a fact) that defendant had carnal intercourse with said witness." This charge is on the weight of the testimony in assuming that prosecutrix had told the truth, and that all that was required was that she should be corroborated. This charge has often been condemned. Hart v. State, 82 S. W. 652, 11 Tex. Ct. Rep. 190; Crenshaw v. State, 85 S. W. 1147, 12 Tex. Ct. Rep. 758, and authorities there cited.

The appellant's counsel in their brief discuss a number of assignments of error, both as to the admission and rejection of testimony, and as to the failure of the court to