Opinion of the court. None of these grounds are sustained when the record as it is here presented is consulted. But even if the record failed to contradict (as it does affirmatively), the first ground of the motion, such objection could not be availed of on a motion in arrest, but, if available, must be made so by exception taken in limine to the indictment. (Rowlett v. The State, 23 Texas Ct. App., 131, and authorities cited.) As to the second ground, the indictment is a good and sufficient one for murder of the first degree. (Willson's Crim. Forms, No. 388, p. 173; Bean v. The State, 17 Texas Ct. App., 60; Sharpe v. The State, Id., 486; Lucas v. The State, 17 Texas Ct. App., 79; Walker v. The State, Id., 176; Penland v. The State, Id., 365.) The third ground of the motion is one which, if sustained by the record, could not be taken advantage of by a motion in arrest of judgment after a trial. We have carefully examined the charge of the court in connection with the objections to it as shown in the record and so forcibly presented in the able oral argument and brief of counsel for appellant, and we are constrained to say that we have found no tenable objection to it. It is, in our opinion, a most clear, fair and able exposition of the law applicable to the case as made by the evidence, and in that portion of it relative to temporary insanity produced by the use of alcoholic stimulants, it was in strict harmony with our statute and rules of decision upon the subject. (Acts of 1881, p. 9; Ward v. The State, 19 Texas Ct. App., 664; Leache v. The State, 22 Texas Ct. App., 279.) With regard to the evidence, suffice it to say that in our opinion, it amply supports the verdict and judgment. A more unprovoked, cruel, heartless and brutal murder can scarcely be conceived than that disclosed by the record here presented. There is not one single palliating circumstance to relieve its enormity. We are of opinion appellant has had a fair and impartial trial, and one free from reversible error. We are also of opinion that the punishment is one he has merited by the crime he is proven to have committed. The judgment is affirmed. Opinion delivered June 13, 1888. Affirmed. Statement of the case. No. 5945. W. E. TRUMBLE v. THE STATE. 1. MURDER-SELF DEFENSE-CHARGE OF THE COURT.-See the statement of the case for evidence held not to raise the issues either of murder of the second degree, manslaughter or self defense, and therefore not to bave demanded of the trial court instructions upon such issues. Note also that it is sufficient to support a conviction for murder of the first degree. 2. SAME-EVIDENCE-THREATS.-The defense having proved the threats of the deceased to take the life of the defendant, the State was permitted to prove, as testimony to show the abandonment of such design by the deceased, that, at the time of the homicide he was preparing to remove from the neighborhood in which he and the defendant lived. Held that, under the circumstances of the case, the admission of such proof was not material error, if erroneous in any degree or aspect. APPEAL from the District Court of Jones. fore the Hon. J. V. Cockrell Tried below be The conviction in this case was in the first degree for the murder of J. L. Abbott, and the penalty assessed against the appellant was a life term in the penitentiary. A. W. Abbott, the brother of the deceased, was the first witness for the State. He testified that, for three years prior to August 16, 1886, he lived with his brother, the deceased, in the village of Otta, in Cottle county, Texas. Witness's brother, Bart, and one F. E. McGauhey also lived at the deceased's house at that time. Deceased was murdered by the defendant in Cottle county, Texas, on the evening of August 16, 1886. About mid afternoon on that day the witness went to the spring, about two hundred yards distant from the deceased's house, to get a bucket of water. On his way back he met the deceased, with his year old baby in his arms, and a bucket in his hand, going toward the spring. Witness handed the deceased his bucket of water and took the empty bucket and started back to the spring, and the deceased started back to the house. The child, however, by motioning and crying, manifested its wish to go to the spring, when witness and deceased again exchanged buckets, and witness went on to the house, and deceased, with his child, went on to the spring. On reaching the house and putting 25a 631 27a 43 Statement of the case. down his bucket of water, the witness mounted a chair which stood in the front door way and looked towards the spring and towards Pruitt's house, which stood about two hundred yards from the spring. Witness could see the Pruitt house from the chair, but could not see the spring, nor could he see a man standing at the spring. The said spring was in the bed of the Wichita river. While looking from his chair the witness saw the defendant at a point about half way between the spring and Pruitt's house, going in the direction of the said house. Defendant then had no gun in his hands. Witness watched the defendant until he entered Pruitt's east gate and passed around the house as if to reach the south door, which the witness could not see from his position. Presently the defendant emerged from Pruitt's house with a gun in his hands, passed out the gate and went towards the spring, where the deceased was. Witness immediately jumped off the chair, seized his gun, and ran to the brow of the hill which commanded an imperfect view of the spring. When he reached that point witness saw the deceased stooping at the spring as if to fill a bucket of water, and the defendant standing at a point about twenty-five steps distant from the deceased, with his gun in a shooting position, and pointed at the deceased. Defendant fired towards deceased, when deceased stood up with his back towards witness, and then fell backwards. Witness then fired at the defendant, and defendant again fired at the deceased. Deceased then struggled to his feet and ran towards the river. Defendant fired several other shots at the deceased, and deceased finally fell at the water's edge, his feet in the water and his face to the ground. Witness fired several shots at the defendant, and the defendant fired several shots at him. Witness, having emptied the magazine of his gun of cartridges, went to his brother's house for more, and when he returned to the scene of the fight he found that defendant had gone to Pruitt's house and secured his horse. When witness reached the top of the hill the defendant said something to him which witness did not understand, more than that part of it was: "Go and take care of your brother." Defendant and Melvin Dewitt then galloped off together on their horses. The witness then went to the deceased and found him in a dying condition, unconscious, but not quite dead. He died a few minutes later. The bucket, about three-fourths full of water, was sitting on the ground, and the dipper was lying near it. Deceased's pipe, which he had in his mouth when witness met him Statement of the case. going to the spring, was picked up a few steps distant from the spring. The body lay near the channel of the river. The spring was a small one, enclosed in a tin box, and a dipper or cup had to be used to fill a bucket from it. Deceased was in his shirt sleeves, and had on an unbuttoned vest when shot and killed. He had neither a pistol nor a gun on his person. The spring was southeast from the house of the deceased, and northeast from Pruitt's. A man at the spring could not be seen from either of said houses. Mrs. Abbott, the widow of the deceased, reached the body a little in advance of the witness. He then wen Cross examined, the witness said that he had never measured any of the distances mentioned by him, but thought that the spring was about two hundred yards from the deceased's house. and a few yards further from Pruitt's house. There was a small picket pen, about thirty feet square and from five to eight feet high, a short distance north of Pruitt's house. Witness did not see the defendant on the fatal day until he saw him going towards Pruitt's house from the direction of the spring. He then had no gun. He passed into Pruitt's yard at the east gate and wen around the house as if to go in at the south door. out at the east gate, with a gun in his hands, and went towards the spring. Witness then sprang from his chair, seized his gun and ran towards the spring. When he next saw defendant he was in the act of firing upon deceased. Witness fired at defendant as soon as he could after defendant fired his first shot at deceased. Witness denied that he ever, at any time or place, stated to any person that he was in his brother's house when defendant fired the first shot, and that when he saw his brother fall he was at the house. F. E. McGauhey testified, for the State, that he was justice of the peace in Cottle county in August, 1886, and as such officer held the inquest upon the body of the deceased. Witness was living with deceased at the time he was killed, and had lived in his house since 1884. Deceased's said house was in the village of Otta, in said Cottle county. Witness saw deceased at about noon on the fatal day. He, witness, then went off to hunt horses for deceased, and did not see him again in life. He saw the body near the spring on that afternoon. It was lying in the bed of the Wichita river, the feet touching the edge of the water. There was no pistol on the body, nor had the deceased owned a pistol since the twentieth day of the preceding month. Witness left the body at the spring and went off to summon a jury of Statement of the case. inquest. Upon his return he found the body at the house, whither it had been removed. Witness did not examine the body, and could make no statement about the wounds on it. He, however, took measurements between the different points mentioned in the testimony of the witnesses, and could speak as to such distances. The distance from the deceased's house to the brow of the hill where A. W. Abbott testified that he stood at the time of the homicide was two hundred and four yards. The distance from where A. W. Abbott stood to where the defendant stood was one hundred and sixty-two yards. The distance from where the defendant stood to the spring was twenty-five yards. The distance from Pruitt's house to the spring, by the path, was one hundred and thirty-eight yards. A man in the channel of the river or at the spring could not be seen from Pruitt's house. The nearest point from and in the direction of Pruitt's house at which the spring could be seen was one hundred and two yards, which would place that point at a distance of thirty-six yards from the spring. In other words, a man going to the spring from Pruitt's house would have to approach within thirty-six yards of the spring before seeing it. The Wichita river runs east, and the deceased's house was north and Pruitt's house south of it. Pruitt's path struck the river west or above the spring. The view from Pruitt's house to the spring was so obstructed by a bank that a person going to the spring from Pruitt's house would have to reach the channel of the river before he could see the spring. From the brow of the hill where A. W. Abbott stood a man could be seen at the spring as far down as his hips, if standing, but only his head could be seen if he was stooping to get water. A person standing in a chair at deceased's house could easily see a man or a dog in Pruitt's yard. A person standing in a chair on deceased's gallery could see a man walking along the path from the spring to Pruitt's house, after such person had left the channel of the river. Had the witness succeeded in finding the horses of the deceased in time, the deceased would have moved from Otta to Margaret, his avowed object being to get away from the neighborhood in which the defendant lived. Deceased, to the knowledge of witness, was making preparations to leave at the very time of his death. The witness knew as a fact that there was no pistol at the deceased's house at the time of the homicide, nor had there been one at that house since the fifteenth or twentieth day of the preceding March. The witness saw two diffi |