¶1 I respectfully dissent for reasons stated herein.
¶2 (additional opinion), June 28, 1912.— The opinions herein already rendered are so lengthy that it seems useless to write any further. However, as the dissenting opinion has been furnished us and we reserved the right in overruling the motion for rehearing to further discuss any of the questions, deemed necessary, we now add this brief additional opinion.
¶3 As it is shown by the dissenting opinion itself the argument and brief of Hon. C. E. Greenwood, the attorney for appellant, is adopted as such dissenting opinion. Of course, Mr. Greenwood is an extreme partisan in this case. His zeal for his client, we think, has caused him to say things in his dissenting opinion which, upon reflection, we think, would not be said.
¶4 As to the preliminary statement by Presiding Judge Davidson to the effect that the authorities cited by Mr. Greenwood in his argument and brief in the case were not discussed, but the effect of the opinion of the court is in conflict with them, is easily said, hut we think not only difficult, but incapable of proof. In the argument of a question many cases may be cited. The case cited may correctly lay down some proposition of law, but that proposition of law may have no application to the question discussed when properly understood and analyzed. Such is the case in many of the decisions cited by Mr. Greenwood. It is never the purpose of this court to take .up each case cited by counsel, show its application, or want of application, to the question under discussion, and because they are not so taken up and discussed by no means justifies the assertion that the opinion rendered is in conflict with them. We are sure that the opinion rendered in this case is not in conflict with any correct decision of this court. Most of them cited by Mr. Greenwood, in our judgment, are entirely inapplicable.
¶5*417 The dissenting opinion of Hr. Greenwood, where he states, “There are a number of very interesting and vital questions involved in this appeal which can not be appreciated or correctly solved without a clear, definite knowledge of the evidence, but with this knowledge they are of easy solution. The opinion of the court affirming the conviction does not present the questions, nor deal with them as presented in the record, in the light of the evidence.” A remarlcáble charge to make! The evidence in this case is shown to this court by seventy-eight full pages of typewritten statement. In the consideration of the questions raised this evidence—the whole of it—was carefully read and reread and studied and restudied. The members of the court who handed down the decision herein were wholly disinterested, were in no way partisans. They were extremely anxious, as they are in every other case, to reach a correct solution of it, and only a correct solution. If the result of that was an affirmance, good and well. If, on the contrary, it resulted in a reversal of the case, it was just as satisfactory to the court. In other words, they studied the record of the case, the decisions and statutes applicable to the questions raised, reached their conclusion, and announced it from a wholly disinterested and unbiased and unprejudiced standpoint. On the contrary, ■ the dissenting opinion in this case by Mr. Greenwood was written from an extreme partisan standpoint. He was very greatly interested in reaching only one result in the case, that is, its reversal. We do not blame him for being a partisan. He was properly a partisan, and could expected to be nothing else—the very reverse of what this court is with reference to this case, or any other case. Therefore we, with emphasis, assert that when he says, “The opinion of the court affirming the conviction does not present the questions nor deal with them as presented by the record, in the light of the evidence, to put it mildly, he is woefully mistaken.” On the contrary, the very reverse of this is true. The questions raised are truly and fully presented. They are dealt with as presented by the record, and from the record only. Each and every one of them was presented, dealt with and decided in the light of the evidence, the whole of the evidence. The dissenting opinion of Mr. Greenwood, we think, presents the questions and deals with them, not from the record and not in the light of the evidence, but simply and solely from a partisan standpoint, quoting and stating only brief excerpts from the evidence which he thinks tends to support him in his contentions. While, as above stated, it took seventy-eight pages of typewritten matter to give the whole of the evidence, he condenses it in only about seven pages of his dissenting opinion, and that, as stated above, from a partisan standpoint, and from that standpoint alone.
¶6 We did not deem it necessary in the original opinion, and we do not deem it necessary now, because it could and would serve no useful service, to give in full this seventy-eight pages of evidence. Some *418 of the ten conclusions reached by the dissenting opinion and stated in paragraphs numbered from one to ten therein are correct/ but such of them as correct are of minor importance. The material ones, when considered in the light of the whole record, are different from what is stated in the dissenting opinion. It is unnecessary to even take up these several matters, because from the statement of the case by the court, and the statement thereof1 in the previous appeal, the material questions raised and discussed can readily be understood.
¶7 What we have said about the evidence above and the standpoint from which it is given in the dissenting opinion, we also say as to the complaints of the charge of the court. Only short sentences thereof wherein certain criticisms are made of such paragraphs of the court’s charge are given, not the whole of it, and as, we think, only such portions of it are given in the dissenting opinion from which such criticisms are attempted to be justified. It is useless to again give the full charge of the court or to take up and discuss these criticisms thereof. All of them were thoroughly and fully considered before the original opinion was written, and there is nothing in the dissenting opinion that causes us in any way to change our original opinion herein.
¶8 The dissenting opinion shows a strained effort to base manslaughter on the claimed insulting remarks about Blanche Caruth, and that appellant’s offense should be reduced from murder in the second de-. gree to manslaughter because thereof. The whole record without question and overwhelmingly shows that appellant at no time and in no way was resenting the claimed insulting reports by deceased concerning Blanche. His whole conduct was predicated exclusively upon said reports which concerned him and Kittie Caruth only. The court properly submitted that if the reports made and circulated by deceased to the effect that Kittie Caruth was in family way and six months gone by appellant, and that that was true, in effect, he had no right to resent it and then claim that he was only guilty of manslaughter, because he killed the deceased. This question was found against him by the jury, and the point in law was decided against him both on the original appeal and on this, and the dissenting opinion does not contest the decision on this appeal or the former appeal on that point. So that his criticism of the court’s charge about “repeating” the insulting statements and ■ a “new” and “fresh” provocation because they were repeated by deceased, has • no application to a correct decision of the questions. The law is they were not adequate cause, whether originally made, repeated or reiterated. If appellant killed deceased because thereof his offense would, not and could not be reduced to manslaughter. So that it was unnecessary to take up and discuss at length or at all appellant’s contentions thereabout, or any of the other questions raised about the insulting remarks about Blanche Caruth.
¶9 It is useless to again take up and discuss the various questions *419 shown by appellant’s several bills of exception. Even if it should be conceded, which we do not, that the evidence introduced showing that the deceased was assistant superintendent of a Sunday-School was inadmissible, it was no ground whatever for reversing this cause. Coyle v. State, 31 Texas Crim. Rep., 604; Tweedle v. State, 29 Texas Crim. App., 590. It is needless to cite the many other cases to the same effect. The same might be said of the fact that Kittie Caruth when recalled to the stand, without it being noticed, brought her child with her. It is inconceivable to us that either or both of these insignificant circumstances, even if they were improper, could possibly have affected the trial of this case. Certainly, the jury of twelve impartial, disinterested men would not violate their oaths and ignore all of the testimony in the case, showing beyond doubt the unjustifiable killing of the deceased by appellant, because the deceased was the assistant superintendent of a Sunday-School, or that the woman brought her child into the courtroom so the jury could see it. Ho stress was laid upon either of these insignificant facts. That the child was inadvertently brought into the courtroom, as shown by the record, was in no way referred to by anyone, and the record fails to disclose that the fact that the deceased was assistant superintendent of a Sunday-School was in any way referred to or discussed. These matters were ignored in every way, and the jury and the counsel on both sides, and the court, to the exclusion of them, devoted their attention and efforts to the real material facts in the case, and it is. impossible for us to conceive how these insignificant facts could by any possibility have affected the verdict of the jury-
¶10 We reiterate that the testimony of Mrs. James, which was attempted to be introduced by appellant, was wholly speculative, entirely remote, and could not possibly in any way have aided the jury in arriving at a verdict. Speculative evidence from which it is attempted to draw uncertain and speculative conclusions can not be introduced. Cases are not tried on such far-fetched, uncertain and wholly speculative evidence. They are tried on evidence that is material, that has something to do directly with the transaction, and the exclusion of her testimony would not and could not have affected the verdict of the jury. The same might be said as to the excluded testimony of Dr. Menefee. His testimony, which was rejected, was not sought to be introduced for any other than a wholly improper use and purpose, and even if it had tended to impeach the witness, Kittie Caruth or Mrs. Boberson, or both of them, it could not have affected and did not affect the result of the case.
¶11 The testimony of Mr. Vaughan was unquestionably admissible. Sweeney v. State, 65 Texas Crim. Rep., 593, 146 S. W. Rep., 888.
¶12 It is useless to write further.