author: PRENDERGAST, P. J. BAVIDSON, J.

text:
    REED v. STATE.
    (No. 3149.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 655) — Address to Jury Panel.
    Remarks or an address by the trial judge to the regular jury panel for the week, made when administering the oath to them and for the purpose of aiding them in the discharge of their duties, could not 'be construed as a charge in a criminal case tried during the week for which they were impaneled, and hence was not required to be in writing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    2. Criminal Law (§ 844) — Objections to Instructions — Sufficiency.
    An objection that a charge “was not a correct statement of the law in reference to the matter dealt with” was too general to be considered.
    [Ed. Note. — For other eases, see Criminal Law, Dec. Dig. § 844.]
    3. Criminal Law (§ 865) — Trial—Remarks to Jury Panel.
    In an address to the regular jury panel for the week, the trial judge told them that a verdict was the agreed consensus of opinion of each and all 12 men; that it was a mistake for a juror to think that because the rest did not think exactly as he that there was no chance to agree, but they ought to discuss the matter and get each other’s viewpoint, as it was always possible to agree, etc.; that a hung jury was a detriment to the state and to the defendant, etc. Held, that the remarks did not have a tendency to coerce jurors to reach a verdict in any improper manner, and hence was not injurious to a defendant whose case was tried during the week.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2069; Dec. Dig. § 865.]
    4. Criminal Law (§ 655) — Trial—Remarks to Jury Panel.
    Remarks by the trial judge to the regular jury panel for the week, telling them in effect that they must forget the standing of the parties, their names, and who they are, but they must try the case according to the evidence and the law, could not be construed to mean that the jury was not to consider evidence as to a defendant’s general reputation as a peaceable and law-abiding man, etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523,1527, 1535; Dec. Dig. § 655.]
    5. Criminal Law (§ 1166%) —Appeal and Error — Harmless Error — Instructions.
    Though remarks made by the trial judge to the jury panel for the week were erroneous, they Were harmless to a defendant in a homicide case tried during the week; it not appearing that any juror was unduly influenced thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    6. Jury (§ 70) — Impaneling for Trial.
    There is no law that requires the judge when a jury is to be impaneled in a felony case, not capital, to summon other jurors, when there are more than 12 to select from in the panel.
    [Ed. Note. — For other cases, see Jury. Cent. Dig. §§ 310-330, 340, 350; Dee. Dig. § 70.]
    7. Homicide (§ .158) — Evidence — Admissibility-Malice.
    Evidence that prior to the killing defendant approached the father of deceased and asked him if he killed his dog, and stating that he or Oliver (deceased) did; that he could whip the damn son of a bitch who did it, etc.— was admissible as showing defendant’s motive and malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    8. Homicide (§ 309) — Trial—Instructions.
    Where the evidence raised the questions of mutual combat, and also whether defendant intended to -kill deceased, the court properly charged that, if defendant provoked the difficulty and a mutual combat ensued, but, when provoking it, Intended only to engage in an ordinary fight, and not to kill deceased, he was not guilty of a higher offense than manslaughter; the-court in the previous part of the charge having submitted the defense of self-defense clearly and distinctly, unhampered by a charge on provoking the difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    9. Homicide (§ 340) — Instructions.
    That the court did not limit accused’s defense to self-defense, but charged that, if in provoking the difficulty he intended to engage only in an ordinary fight, he was guilty only of manslaughter, was in accused’s favor.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Davidson, J., dissenting.
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    John Reed was convicted of murder, and he appeals.
    Affirmed.
    D. G. Hunt and J. R. Stubblefield, both of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. St Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at eight years. This is the second appeal in this case. In the first trial he was convicted of the same offense, and his punishment assessed at 10 years. The former appeal is reported in 161 S. W. 97, from which a general idea of the ease may be had.

Appellant and deceased were young men living in the same community. About a month before the homicide some one had killed appellant’s dog. He believed deceased, or deceased’s father, had killed it. Not long before the homicide appellant met Mr. A. C. Brown, father of the deceased, at church, called him off to one side, and asked him if he had killed his dog. Mr. Brown replied, “No, I have not killed anybody’s dog.” Appellant said, “I believe you killed my dog.” Mr. Brown kept telling him that he had not. Then appellant said, “You or Oliver [deceased], one did, and I can whip the God damn son of a bitch that done it.” The parties then partially separated. Appellant repeated, at least three times, the last statement just above quoted, and at the time put, or had, his hand- in his pocket. Not long after this appellant, on horseback, met the deceased, who was in a wagon in the public road. It appears that neither was kw>i- u. the other. The meeting occurred in just such a place as neighbors using the same road might meet at any time. Appellant testified that when he saw deceased and that they were going to meet, he dropped behind his two companions and as he met deceased he stopped and said to him, “Did you kill my dog?” He replied, “What have you got to say about it.” Appellant said, “It just takes a son of a bitch to do it.” And then, he says, deceased threw down, or wrapped up his lines, and said: “I won’t take that, get off of your horse.” He thereupon got off of his horse, pulled off his glove at the time, and' after he got on the ground the deceased struck him with the whip handle; that he got up only partially into the wagon of the deceased and cut him several times with his knife; that deceased started to pick up some piece of iron or something else in the back part of the wagon — he did not know what it was — and, fearing the deceased would strike him and injure him therewith, he cut deceased in self-defense. The evidence shows that deceased was cut several times, it seems three cuts on his shoulder and back, and another in the left side in the region of the heart. The doctor said, while he did not know the depth of any of the wounds, not having probed them, that if the one in the back below the shoulder blade and the one in the left side were deep enough, either, or both, would be fatal. One or the other, or both, were fatal, because deceased died therefrom within a very short time.

Appellant said he never got entirely in the wagon of the deceased; that he only put one foot over the side of the bed. Mrs. Garrett, who lived some 50 or 60 yards from where the stabbing occurred, swore that, while she did not see the fight, her attention not being directed towards it at the time, she did see appellant jump out of the wagon, and that he was entirely in the wagon at the time he jumped out, and that at the time the deceased was standing, holding his lines with both hands. John Brown, the brother of deceased, who at the time of the fight was traveling the same road, meeting the deceased, and was some 200 or 300 yards from him at the time the fight occurred, said there was no obstruction between him and the parties ; that when the deceased and appellant stopped, appellant got off of his horse and climbed in the wagon, and they went to fighting. He was so far away at the time, however, he could not tell what appellant had in his hand, but he swore that appellant got entirely in the wagon, and the fight occurred while he was entirely in the wagon, about the middle of it; that after the fight was over appellant jumped out of the wagon and deceased’s brother started on. The deceased at no time got out of his wagon, nor did he attempt to do so. John, Brown further testified that there was a piece of iron in the back part of the wagon bed, but that the deceased made no move to go back in the wagon, but remained in the front part where he was when he stepped; that appellant, when he first got down off of his horse, made no stop but went right on into the wagon. He also swore that there was no blow passed between deceased and appellant that he could tell, before appellant got in the wagon, and that deceased did not strike the appellant before appellant got in the wagon that he could tell.

After appellant cut deceased ’he hurriedly got on his horse, leaving his glove, and he and his companions rode away towards the town of Carbon, a few miles distant. After getting off some distance he sent one of his companions back for his glove. He then rode on towards Carbon, in a lope part of the way. As soon as he reached Carbon he saw Mr. D. S. Campbell and told him about the difficulty. Mr. Campbell says:

“He told me that he had a racket with Ollie Brown [deceased]. He said that they had had a fight out there, and that he had cut Ollie with a knife. I says, ‘Wasn’t you big enough to lick him or whip him without a knife ?’ He said that he had been aggravated with that outfit long enough. I believe he said that it made him mad. He said he had been aggravated with that outfit, or that darned outfit, or damned outfit, something that way. He said the reason that he cut him was that he had been aggravated by that damned outfit long enough.”

All this occurred very soon after the diffi1 culty and before Mr. Campbell, the appellant, or any of the others at Carbon, knew that deceased was dead. They heard it very soon afterwards. As soon as appellant heard it, he fled to escape arrest, but gave up that night. Appellant denied that he said to Mr: Campbell what Mr. Campbell testified he did. Immediately after the difficulty the deceased attempted to drive home to his father’s. His brother John met him almost immediately after the difficulty, asked what was the matter, deceased told him appellant had cut him,' and John got in the wagon to drive deceased to their father’s, which he did. As soon as he got in the wagon, deceased fell over from the wounds. John put something under his head and drove in an ordinary trot over an ordinary clayed road to their father’s, a mile and a quarter distant. Deceased died before reaching his home. We deem it unnecessary to make any further statement of the case.

Omitting the usual head of the style and’ number of this cause and the court, and the usual “Be it remembered,” we quote in full one of appellant’s bills:

“At tlie time that the court administered the oath to the regular panel of the jury for the week, and tested them as to their qualifications as jurors, which panel was to try all -cases for the week, and in the presence of the following jurors, to wit [giving the names of 16], seven of whom were later chosen as jurors in the John Reed Case, the court made the following remarks to the said regular jurors for the week, to wit:
“ ‘The Court: (a) In the trial of every case in the district court it is frequently necessary, during the trial for the court to retire' the jury during the argument of counsel on the admissibility of testimony. That is a matter which is controlled by law, and when you are forced to retire every few minutes, if that should be the case, you must not become nettled at even the attorneys who make the objections, or any one else. The law demands it, and you are as much responsible for it as anybody else, so you will have to take it as a matter of course. I mention this because sometimes jurors become nettled at attorneys for making objections which force them to retire. It is the duty of a good attorney to make an objection whenever he thinks it is to the interest of Ms client, and the law requires that the court should retire you, and so it is a matter over which none of us have any control. We just have to take it as a matter of course.
“ ‘(b) You are asked on your voir dire frequently whether you know anything about a given ease and at the time being you may not remember that you do know anything about it and you so answer and are taken on the jury. Later on the evidence of some witness may remind you of some fact or circumstance about wMch you have personal knowledge. If that should occur, it would be your duty as a good juror to pay — to not consider it for any purpose — your private knowledge of the matter, and you should not mention that to any of your colleagues, that you know anything about the case. You are to try the case solely upon the law and the evidence that is brought to your attention in the courthouse, and not in regard to something you have heard on the outside.
“ ‘(c) You are asked on your voir dire, whether you will try a case according to the law and the evidence. That means evidence which is introduced and admitted by the court. That is, your oath covers that feature of the case, and if you considered anything that is not admitted by the court, you would be violating your oath and be doing a great injustice to the parties litigant. I have heard jurors, when I was in the practice, say that the court excluded testimony, but they considered it just the same because they thought it was pertinent to the issue. Now, if you do that, you can see where you would be doing the parties a great injustice. They accept you on the jury believing that you will carry out your oath, and if you should consider that which is not admitted by the court you will be violating your oath as well as doing them a great injustice.
“ ‘(d) The verdict of a petit jury in the district court is the agreed consensus of opinion of each and all 12 men on the jury. It is not what just one man tMnks about the case, although it takes his opinion, agreed with the others, to constitute a verdict; it is not just what 3 men or 5 men or 7 men or 11 men think; it is what each and all of the 12 men, after they have carefully considered the case— after they have exchanged ideas with each other-after they have discussed the matter from different viewpoints, it is what they are willing to agree upon in the case. Sometimes a juror, after he spends several days trying a case, goes into the jury consultation room, and just because every other juror does not think exactly as he tMnks, he tMnks that there is no possible chance for the jury to agree, and he thinks that there is a hung jury. Now that is a mistaken idea. Men ought to be willing to discuss matters among themselves and get each other’s viewpoint. There is not two of you men alike. Every one of you are different. You are different in your looks; your stature; your physiognomies; your viewpoints, and every way, and yet that being the case, it is possible for 12 men, dissimilar in every way, to reach a verdict that is just and righteous according to the law and the facts in the case. A hung jury is a detriment to the interests of the state and also to the defendant, and to parties litigant in civil eases. It ought to be just as easiy for one set of 12 honest, upright, conscientious men constituting a jury to find a verdict on a given state of facts and the law as it would for any other jury of 12 men of equal conscientiousness. In other words, it ought to be just as easy for one jury to find a verdict on the same facts as it is for another jury on the same facts to reach a verdict. Some of us imagine that all of the contrariness and arbitrariness in the world wear dresses. That is a mistake. Some of it wears pants. And if we would just weed out of the jury room all personal contrariness and personal arbitrariness, it would be very easy for you to find a verdict on the facts. See (dd) below.
“ ‘(e) If you will just forget the standing of the parties; just forget what their names are, and who they are and try the case according to the evidence and the law, a jury would have little trouble in reaching a verdict. If you will just forget for the time being who the parties are, and their identity and their names and all about them, and just try it as though you had never heard of it before, and then it is tried in a just and a righteous way. The parties then get the benefit of the law applied to- the facts of that particular case.'
“ ‘(f) Now we are going to meet, gentlemen, every morning at 8:30 until you are discharged. We met at 11 this morning in order to give the parties, who live in the outskirts of the county a chance to come in, and to not have to leave home Sunday. It is inconvenient to a great many parties, but we are going to hold a night session to-night to make up for the lost time to-day, so be sure to be here promptly at 8:30 every morning until you are discharged, so that we can expedite business. There is one other matter I want to call your attention to.
“ ‘(g) In the trial of every criminal case, a defendant is permitted by law to testify in his own behalf. That is a matter, however, which is regulated almost entirely by the judgment and the discretion of his counsel. An attorney, under our law, might have a good reason consistent with the innocence of his client for not placing him on the stand. Under our law, where a defendant does not testify, you not only cannot consider it against him, but you cannot even mention that fact to any of your colleagues. If you should mention it, it would cause the court to set aside any verdict you might render, and might possibly cause the court to place a punishment upon the juror who disobeys the instructions, so you want to be very careful.’
“After the court had made said remarks, Mr. Stubblefield, Attorney for John Reed, said:
“ T want to except in behalf of John Reed, and also in behalf of Nelson, and I except to it for the following reasons: (1) That this is a charge not in writing, and before the jury is impaneled. And (2) it is not, a correct statement of the law in this state in reference to the matters dealt with. And (3) it has a tendency and will be productive of coercion _ in forcing jurors to agree on verdicts in an improper manner that would not otherwise, occur, and would be in derogation of the rights of the defendant. (4) That it is calculated to impress a jury with the idea that if 1 man thinks a man is not guilty, he should yield his opinion in deference to the other 11 men and consent to a' verdict. That it is prejudicial to the rights of the defendant. I especially except to that portion of your honor’s remarks in which the court says, “It is to the interest of the defendant not to have a hung, jury.”
“ ‘The Court: All right, I will note that you except.
“ ‘The Court: If it will do you gentlemen any good I will state that during every term of court for six years there has been like exceptions to these. This charge I have been giving to the jurors for six years, and there have been bills of exceptions to it, and not a case yet has been reversed on that ground.’
“Whereupon Mr. Stubblefield, attorney for John Reed, said:
“ T except to that remark of the court in the presence of the panel as being improper. As being an improper remark, and I desire to add to my exception further that the court in his charge to the jury nowhere instructs them that the verdict must represent the individual conscience and judgment of each of the jurors. That, don’t think, is in your honor’s instructions.’
“ ‘The Court: That was in the court’s instructions.
“ ‘(dd) I told the jury that while it takes the judgment of each man to make the verdict, yet it was, after all, what they were' willing to agree upon after discussing the matter among themselves. While it took each and all of them to make a verdict — 12 men to constitute a verdict — I want that understood. If the stenographer did not take it, then I want that understood.’
“And after said exceptions had been reserved to the remarks of the court, the following jurors were selected, to whom said instructions were given, and duly impaneled in the trial of the above styled and numbered cause, to wit [giving the names of seven].
“The foregoing instructions were delivered to the said seven jurors, prior to the time that they were impaneled, and the exceptions here-inbefore urged were urged by the counsel for the defendant at the time they were given to the jury.
“Premises considered, the defendant prays that this bill of exception be examined, approved, and ordered filed, as a part of the record in this case, which is accordingly so done, this the 18 day of April, 1914.”

We have subdivided the court’s, address, or remarks, just quoted, by letters of the alphabet for convenience in discussing them.

In no reasonable or proper way can these remarks or address, by the district judge to the jury panel, be considered or construed as a charge in this case. What occurred, as shown by the bill, excludes any such idea. Besides the court, in his written charge to the jury in this case in the first part of it, specifically told the jury: “I give you in charge as the law applicable to this case the following.” Then charges the law as to this case fully. Also in the very last paragraph of the charge proper he again specifically told the jury that they were the exclusive judges of the facts and the credibility of the witnesses, “but the law of the case you are bound to receive from the court, as herein given you, and be governed thereby." When our whole judicial system was first provided, the theory and policy of the state and the Legislature was to have intelligent, honest, fair, and impartial jurors in every case, whether civil or criminal. Whenever the Legislature has amended the original judicial system as to juries, the whole trend of the legislation has been .to provide new procedure to get more certainly competent, intelligent, fair, and impartial jurors. In providing for jury commissioners to select juries, they are required to swear that they will not knowingly elect (select) any man as a juryman, whom they believe to be unfit and not qualified. R. S. art. 5126. They are required in selecting jurors to select persons free from all legal exceptions, of good moral character, of sound judgment, well informed, and who are able to read and write. R. S. art. 5135. When the jury commissioners have failed to select a sufficient number of jurors, or any, or whenever it becomes necessary for the sheriff to summon talesman, he is required to swear, among other things, to select as such tales-man for jurors none but impartial, sensible, and sober men, having the qualifications of jurors. R. S. 5170. Each juror who serves in any criminal case, as in this, takes this oath:

“You [I] solemnly swear that in the case of the state of Texas against John Reed, the defendant, you [I] will a true verdict render, according to the law and the evidence; so help you [me] God?”

We know of no law, written or unwritten, which prohibits, directly or indirectly, the district judge from aiding tile jurors to impartially, faithfully, fully, and intelligently discharge their duties. It seems to us that when an able and conscientious judge undertakes to do this, and does it in a fair and impartial manner, he should be commended instead of condemned. No man, not even an accused, should be heard to complain that the district judge fairly and impartially, and without any injury to him, attempts to aid a jury panel to properly, fairly, intelligently and impartially discharge their duties and functions as jurors.

But let us take up the several subjects of the court’s remarks or address to the jury panel. Subdivision (a) would clearly be fair and impartial, if anything, more beneficial, to an accused than to the state. So of subdivisions (b) and (c), and all the others. Take appellant’s several objections to said remarks of the court — the first that the charge is not in writing, and before the jury is impaneled. We have conclusively shown above that this was not a charge in this case, and by no legerdemain could be construed to be, but on the contrary, is conclusively and pointedly excluded as such. It was not a charge in this case, and was not intended to he, and the jury could not have conceived that it was. His second objection, that it was not a correct statement of the law in reference to the matters dealt with. Wherein or how is this the case? This objection, in no possible way, points it out. It would be too general to require any consideration by this court, if this claimed charge should in full have been given to the jury in this particular case, under all the authorities.

Take the third objection, that it has a tendency and will be productive of coercion in forcing jurors, to agree on verdicts in an improper manner, and would be in derogation of his rights. We fail to see how this could be possible. Take these remarks of the court in full and, by no sort of reasonable construction could any of the claimed injuries result. No sort of coercion is suggested, or authorized. No sort of force to require a juror to find other than his verdict is suggested. The same thing is applicable to his fourth objection. To his suggestion that it is to his interest to have a hung jury, we state he has no right to a hung jury. If he is guilty, and the evidence shows it beyond a reasonable doubt, he should be convicted, and no juror should hang the jury. If the state fails to prove beyond a reasonable doubt his guilt, he is entitled to a verdict of acquittal, and no juror should hang the jury. That a hung jury, which sometimes occurs, may result improperly in his favor may be true. It may always be to the interest of an accused, and especially a guilty one, to prevent his trial as long as possible. Witnesses die; they move away; they cannot be found; they forget. All this may be in his favor, but he has no right to it. A hung jury may help to bring about these things, but he is not entitled to them as a matter of right; it simply may inure to him because of the circumstances which may be unavoidable. If he had suspected that the verdict rendered was not the verdict of each and every juror, the statute expressly points out to him his remedy: That is to poll the jury and make each one state that is his verdict. He did not even avail himself of this right; doubtless because he was perfectly satisfied it was the verdict of each juror, and that said remarks or address by the judge did not and could not have had any such effect as he now mentions.

A special objection is made, not in the court below, not by bill of exceptions, but now in this court, to subdivision (e) of said remarks of the court, to the effect that the jurors must forget the standing of the parties, their names, and who they are, hut must try the case according to the evidence and the law. Stated in another way, that they were to forget, for the time being, who the parties are, and their identity and their names and all about them, and just try the case as though they had never heard of it before, and then to try it in a just and righteous way; that the parties then get the benefit of the law applied to that particular case. Who on earth could have any valid objections to this? This court has reversed many cases because of the remarks of the prosecuting attorneys, out of the' record. It has also reversed many eases where it was made to appear that outside influences induced a conviction. In other words, this court has always held that each case must be tried alone on the evidence that was introduced in that case, and that no outside evidence whatever, whether for or against an accused, could or should be considered. By no construction can this subdivision of the court’s remarks be otherwise understood than the plain language imports that they are. to try each case according to the lato and the evidence introduced in that case, and not to consider any outside matters whatever. By no possible construction could this language, either directly or indirectly, be construed to mean that the jury was not to give the proper consideration to any evidence the defendant introduced as to his general reputation as a peaceable, quiet, and law-abiding man, on the merits of the case, or to enable the jury to suspend the sentence if they found him guilty of manslaughter.

But suppose that by some sort of means these remarks to the jury panel by the judge could have been misconstrued by the jury to appellant’s disadvantage. His attorneys heard it all, and for him objected to it at the time. When his case was afterwards called he made no voir dire or other examination of the 7 jurors, or of the 16 even, and in no way elicited from them, or either of them, that they would be in any way, improperly or otherwise, influenced by said remarks by the court, nor that they would in any other way try this case other than according to the law as given by the court, and evidence as introduced, in tMs case. In other words, neither by implication nor otherwise does he show that either of the jurors were disqualified, biased, or prejudiced in any way from sitting in the case because of the said remarks of the judge. He made no challenge of the panel or any juror because thereof. Pie did not exhaust his challenges; in fact, is not shown to have made a single challenge. He in no way shows that any disqualified or objectionable juror was forced on him. Under all the authorities, unless this is done and an objectionable disqualified juror is forced upon him, and he shows this by proper bill, has he the slightest grounds for a reversal. It is needless to cite the cases. The books are full of them, and they are all the same way. So that in no contingency and in no way does he show himself entitled to a new trial in this case because of the said remarks or address of the district judge to the jury panel. McGaughey v. State, 169 S. W. 287, recently decided. The cases of Chapman v. State, 42 Tex. Cr. R. 135, 57 S. W. 965, Attaway v. State, 41 Tex. Cr. R. 395, 55 S. W. 45, Jones v. State, 51 S. W. 944, and Murphy v. State, 57 S. W. 969, have no application to this case. What the judge said, as shown by those several cases, is nothing like what this judge said on this occasion.

There is no law that requires the judge, when a jury is to be impaneled in a felony case, not capital to summon other jurors when there are more than 12 to select from in the panel and presented for challenge. The court in this instance followed the statute and committed no error in not summoning other than the first 16 jurors who were selected by the jury commissioners. See article 702 et seq., C. C. P., and decisions thereunder.

No error whatever is shown by the court permitting what was claimed to be a leading question to the witness John Brown. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. Besides, the court, in qualifying appellant’s bill, states: “The court exercised his discretion in permitting the question.”

Neither did the court commit any error in permitting Mr. A. C. Brown to testify that, 'at the time appellant accused him of killing his dog and his threat that he could whip the damn son of a bitch who did it, appellant had or put his hand in his pocket. This would clearly be admissible to show appellant’s motive and malice when he afterward saw deceased, whom he then charged with killing the dog.

The only other complaint appellant has is to this paragraph of the court’s charge:

“If you should believe from the evidence that the defendant provoked a difficulty with the deceased, if he did do so, causing the deceased to assault defendant, if he did do so, and if a mutual combat ensued in which the defendant cut deceased, if he did do so, but you should further believe that when provoking said difficulty, if he did do so, the defendant intended to engage in an ordinary fight, and had no intention of killing the deceased, then you could not find the defendant guilty of any higher offense than of manslaughter.”

This charge unquestionably is a part of the court’s charge on manslaughter, intended so, and the place it occupies in the charge clearly makes it so. The court, in the previous part of the charge had submitted appellant’s defense of self-defense clearly and distinctly, unhampered by any charge on provoking the difficulty. It is specifically required by the evidence and under the former decision of this ease. The evidence in this case clearly raised the question of mutual combat. It also clearly raised the question of whether or not the defendant intended only to engage in an ordinary fight and had no intention of killing the deceased. In either of these events if the killing had occurred because thereof, he would not have been guilty of murder, but of manslaughter only, as this charge specifically tells the jury. This court, in the former appeal, distinctly so stated, and reversed the case partly because such a charge wds not given.

The fact that the court did not limit appellant’s defense of self-defense, but charged on provoking the difficulty, was in appellant’s favor and not against him. If this charge could be construed to be such a limitation, it unquestionably was called for by the evidence in this case. There can be no doubt from the evidence that provoking the difficulty by appellant was clearly raised against him. Coleman v. State, 49 Tex. Cr. R. 357, 91 S. W. 783; Sanders v. State, 83 S. W. 712; Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88; McGrew v. State, 49 S. W. 228; Winters v. State, 51 S. W. 1110; Nickerson v. State, 154 S. W. 992; Luttrell v. State (Cr. App.) 143 S. W. 628; Shoemaker v. State (Cr. App.) 160 S. W. 357; Carver v. State (Civ. App.) 148 S. W. 755. It is needless to cite the many other cases.

The evidence in this case was amply sufficient to show appellant’s guilt. There was no error in the trial.

The judgment is affirmed.

BAVIDSON, J.

(dissenting). It is unnecessary to make any further statement of the case than that made by Judge PREN-DERGAST in the majority opinion. The opinion quotes fully' the bill of exceptions reserved to the verbal charge- or instruction given the jury just before they were impaneled, seven of whom tried the case. This was a very lengthy verbal charge, and the bill of exceptions recites that this charge was given the regular panel of the jury for the week at the time they were sworn and their qualifications as jurors tested. This jury was to try appellant’s case. The bill, after reciting fully the charge so given, closes with this statement:

“The foregoing instructions were delivered to the said seven jurors prior to the time that they were impaneled, and the exceptions herein-before urged were urged by counsel for the defendant at the time they were given to the jury.”

While not positively so stated, yet it is apparent from the record and the bill that appellant himself was not present at the time this charge was given to the jury. My Brethern say that this was not a charge to the jury. If it was not, then I fail to understand what to call it. There are quite a number of objections urged to this charge which are also stated in the majority opinion, which I deem unnecessary to restate. A similar charge, and under similar circumstances was condemned in the eases of Chapman v. State, 42 Tex. Cr. R. 135, 57 S. W. 965; Attaway v. State, 41 Tex. Cr. R. 395, 55 S. W. 45; Jones v. State, 51 S. W. 949; Murphy v. State, 57 S. W. 969. The majority opinion refers to these cases as being cited by appellant in support of his contention that the trial court was in error in verbally instructing the jury as it did, but they hold that these cases are not in point and not applicable. Just why they are not in point and why they are not applicable is not stated in the opinion, and I confess that I do not understand why they are not in point or why they are not applicable. While the language in this case is not identical, yet this charge compared with those charges is in substance the same. Our statute provides that in all felony cases the court shall give his charge in writing, distinctly setting forth the law of the case. It has always been held that the court cannot give a verbal charge in a felony case, because the statute requires it shall be in writing. No charge can be given until after the evidence has been adduced. Another statute expressly provides that:

“It is beyond the province of a judge sitting in criminal causes to discuss the facts or use any argument in his charge calculated to arouse the sympathy or excite the passions of a jury. It is his duty to state plainly the law of the case.”

The court in this verbal charge did not state the law of tlvis ease, but some features (of it are positively in contradiction of all the decisions in Texas bearing upon the question of charging on the weight of the evidence. On this issue of general good character Mr. Branch, in his excellent work on Criminal Law (section 332) tersely and correctly states the rule as follows:

“Defendant may prove his general good character when guilty knowledge or criminal intention is of the essence of the offense” — citing Poyner v. State (Cr. App.) 48 S. W. 516; House v. State, 42 Tex. Cr. R. 128, 57 S. W. 825; Jones v. State, 10 Tex. App. 558; Coffey v. State, 1 Tex. App. 548; Lincecum v. State, 29 Tex. App. 332, 15 S. W. 818, 25 Am. St. Rep. 727; Lann v. State, 25 Tex. App. 497, 8 S. W. 650, 8 Am. St. Rep. 445; Lockhart v. State, 3 Tex. App. 569.

It was also held in Lee v. State, 2 Tex. App. 339, that it was error to charge that evidence as to the defendant’s character is immaterial. It was further held that evv dence of good character is admissible as relevant to the credibility of the evidence against the accused, and, like any other fact, is to be considered by the jury in determining whether or not his guilt has been established beyond a reasonable doubt. Its competency is not restricted to doubtful cases. This is the general rule, and applies to all cases where that issue is involved. In this particular case the intent of the defendant was one of the most crucial, critical points raised on the trial. The evidence upon which the jury based their verdict for murder in the second degree is exceedingly doubtful, if in fact it is sufficient. The opinion of the writer is that the evidence did not show a higher degree of guilt from the standpoint of the state than imperfect self-defense or manslaughter. Appellant put his reputation in issue, and fully proved his high character. Again, he filed under the act of the Thirty-Third Legislature, page 8, his plea for suspension of the sentence in case of conviction for manslaughter. Section 2 of that act provides that the court shall permit testimony and submit the question as to general reputation of the defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant was ever before convicted of a felony. Such testimony shall be heard and such question submitted upon the request in writing of the defendant.' The defendant placed his reputation in issue, and fully sustained it by evidence, yet the court in his verbal charge instructed the jury that they should not regard “the standing of the parties”; they should forget who they are and ignore “their standing,” and “their names,” etc., and in his general charge to the jury did not instruct them with reference to his reputation. His reputation, then,necessarily was more vital in this case than it would have been had appellant not filed his plea for suspension of sentence. Bearing upon his intent in the homicide, his reputation was of critical moment, and this instruction of the court to the jury may have induced them to disregard his «reputation or character and find the issue against him on the question of manslaughter and suspension of sentence. A jury should never be told that high standing, good reputation, or upright character should not be regarded by them in making up a verdict. They gave him murder in the second degree, with eight years’ confinement in the penitentiary. Having verbally instructed seven of the jurors who tried him that they should not regard the high standing of parties, it would be but natural for the jury to conclude that such evidence should not enter into their verdict on the plea of suspended sentence. No one would' question the illegality of this charge or the error if the court had instructed the jury in his written charge that they should not regard “the high standing” of the defendant in making up their verdict. This conviction would not have lasted in this court longer than it would have taken a short opinion to reverse had such charge been given in the written instructions by the court, yet seven of the jurors went into the trial of the defendant under this verbal charge of the court not to consider his “high standing.” This evidence of his “high standing,” his good character, was one of the highest importance, and proved one of the grounds for suspending his sentence.

There are other phases of this verbal charge that are subject to serious criticism that I do not care to discuss in the condition of the record. In the Chapman Case, supra, a similar charge, or one of similar import, was given by the court, but it related more to the proposition of apparent danger and reasonable doubt, and this court reversed because of that instruction given the jury before they-were impaneled. The Chapman Case had been followed in other cases, and it itself followed the case of Jones v. State, supra, and Attaway v. State,- supra. I do not know that I could add anything here to what was said in that case. If the court had instructed the jury in writing that they should not consider the “high standing” and good reputation and character of the defendant from any viewpoint, this judgment would have been reversed, and that would be emphasized by the fact that he had filed a plea for suspended sentence and proved beyond any question his high character, and yet the court instructs the jury verbally they must .“not regard the high standing” of the defendant. I deem it unnecessary to go further into a discussion of this phase of the case.

There is another question urged by appellant that it occurs to me shows merit. The court charged upon provoking a-difficulty. I am of the opinion that the question .was not in the case. There was a phase of the testimony calling for a charge on mutual combat, but the court uses the same facts which brought about the reason for charging on mutual combat, and applied it also on the question of provoking a difficulty. Of course, if appellant provoked a difficulty, it would be a limitation upon his right of self-defense, but if he did not, then the error would be grossly wrong. He relied upon self-defense. The court charged the theory of self-defense, and under our statute it occurs to me that the provoking of the difficulty was not in the case. When appellant asked the deceased if he had killed his dog, the deceased replied to him, “What are you going to do about it?” Appellant, in substance, said that it takes a son of a bitch to kill his dog, whereupon the deceased said he would not take that, and invited appellant from his horse. Appellant dismounted, whereupon deceased struck him. on the head and on his hand with the “whip stock” with which he was driving, that is, the staff of his whip, inflicting pain and also a knot, as I recall the testimony. Insulting language will not justify an assault. The assault here was made by the deceased. Appellant had accepted the invitation to get down from his horse. Appellant may have understood there might be a fist fight, as the parties were not armed so as to indicate any other character of fight was contemplated. Appellant had nothing but ¿is pocketknife, and the deceased was driving his team with a whip, the staff of which was heavy enough to inflict pain. When appellant alighted deceased struck him over the head and on the hand, and a fight began. I am inclined to believe that the court should not have charged on provoking a difficulty. It is sometimes a little difficult to tell just what may provoke a difficulty. While the provocation might not justify an assault, yet sometimes insulting language will bring about or produce the occasion; but appellant only accepted the invitation of the.deceased to alight from his horse. 'What would have become of the matter had deceased not struck him on the head of course is but a conjecture. Appellant had not done anything to this time except get off his horse. Deceased made the assault and began this difficulty. So from any viewpoint I am of the opinion the charge on provoking a difficulty should not have been given.

Eor the reasons above given, I respectfully enter my dissent.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    CROSSETT v. STATE.
    (No. 3161.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1. Homicide (§ 244) — Sufficiency of Evidence — Mubder.
    Evidence in a prosecution for murder by shooting deceased several times, in which the defendant rehed on self-defense, held sufficient to sustain a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 507-509; Dec. Dig. § 244.]
    2. Criminal Law (§ 922) — Appeal—Presentation of Grounds of Review — Instructions — Objection.
    Under Acts 33d Leg. c. 138, amending Code Cr. Proc. 1911, arts. 735, 737, 743, and adding article 737a, requiring that the charge. to the jury in felony cases be read before the argument, and that before being read it should_ be submitted to counsel, who must then object thereto in writing, distinctly specifying each ground of objection, and who may then present written requests for instructions, an objection to a charge on self-defense and to the refusal to give specially requested charges, not made until motion for new trial was. filed, was insuf-fieient, and assignments of error thereto could not be considered by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dee. Dig. § 922.]
    3. Ckiminal Law (§ 829) — Requested Instructions — Given Instructions.
    A requested charge fully embraced in the charge given was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Homicide (§ 300) — Instructions—Self-Defense — Issues.
    In a prosecution for murder, where it appeared that deceased had threatened to kill accused, and started toward him with raised hand_, in which accused thought deceased had a knife when he first shot and went away, as he thought to get a gun to kill him, an instruction that a reasonable apprehension of death or great bodily harm would excuse a party in using all necessary force to protect his life or person, although there was no actual danger, provided he acted upon a reasonable appearance thereof, in which case he was not bound to retreat to avoid killing his assailant, and that, if defendant believed that deceased was going for a gun to return and kill him, he had the right to kill in self-defense, was applicable to the evidence and proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 300) — Trial—Instructions— Self-Defense.
    In a prosecution for murder, defendant’s requested charge that, if deceased, in his presence, threatened to kill him, and if it reasonably appeared to him from the words and acts of deceased that deceased was about to execute such threat, he would be justified'in killing in self-defense, was properly refused, as being merely an abstract proposition not applying the law to the facts appearing at the trial.
    [Ed. Note. — For other cases, see Homicide, Ger t. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Dawson County; W. R. Spencer, Judge.
    Thad G. Crossett was convicted of murder, and he appeals.
    Affirmed.
    J. E. Garland and W. F. Robinson, both of Lamesa, Cunningham & Oliver, of Abilene, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was in-dieted for the murder of Warren Bullock on January 20, 1914. He was convicted, and his punishment assessed at 30 years in the penitentiary.

On the night of January 20,1914, there was a dance at the country home of Mr. Spiller. Appellant and deceased both attended it. Bullock was the floor master, or manager of the dance, and it was his business to collect from each of the young men who danced $1 to pay for the music, which was the amount charged each one. After the dance had progressed some two hours or more, about 11 o’clock, Bullock approached appellant and asked him for his dollar. Appellant refused to pay it, claiming that he had danced only a short time. Several witnesses saw and heard what then occurred between the parties. This was in one of the rooms of the house. They both then walked from that room into the other room of the house where they had a short conversation about the same matter. Their conversation was not heard by any other witness. Appellant said while they were in the room he told Bullock he supposed he had danced only about 30 minutes, and offered to pay Bullock a half dollar. Bullock refused this, saying to him: “If you are so damn short you won’t pay a dollar, I won’t take any.” Appellant then invited Bullock out of the house to settle the matter. They then at once went out of the house, appellant in the lead. It whs a very dark night, and very dark in the yard out of the house. As Bullock was going out he halted and delivered to some friend' the money he had collected and other things out of his pocket, then walked out. Several witnesses testified, in effect, that not one word was spoken by either party when Bullock walked out. Several of them, all disinterested, swore that the moment Bullock stepped out on the ground appellant struck him a blow which felled him to his knees. Appellant said as Bullock reached the door going out he (Bullock) could not see him (appellant), and said, “Where are you?” He replied, “Right here.” and that Bullock came right out towards him saying, “You bet I will come, all right.” He admitted that he at once struck Bullock and knocked him to his knees. Appellant was a larger and heavier man than Bullock, and admitted that a few years before he had taken boxing lessons. All the witnesses say that when Bullock was so knocked to his knees he at once recovered himself, made at appellant, and he and appellant began fighting. There were two automobiles in front of Spiller’s house close to the gallery off of which both parties had stepped when the fight. commenced. In the fight at first, after clenching, in some way they fell against, or one was pushed against, one of the fenders of one of the automobiles. The parties present could not tell which was against the automobile, but two of them pulled the parties, still clenched, away from the automobile, as one of them expresses it, so they could have a fair fight. Appellant threw Bullock down, and was on top of him beating him and gouging his eyes. Each was fighting the other as much as he could. Soon Bullock called to the others to pull appellant off of him, some saying that he merely said, “Pull him off, boys;” others that he said, “Pull the son of a bitch off, boys.” At any rate, two of the bystanders took hold of and pulled appellant off of Bullock, pushed him back several feet, had hold of and restrained him. In the meantime two others had pulled Bullock up and held and were restraining him. The bystanders were then attempting to prevent any further fighting. After appellant was pulled off of Bullock, Bullock kicked him, perhaps in the face, and kicked at him. While he was still down, appellant also kicked Bullock in the face and kicked at him. After each was pulled up and each held by others to prevent any further fighting, Bullock tried to get to appellant, and said repeatedly: “I will kill the son of a bitch, if it’s the last thing I do, or the last act of my life.” One of appellant’s witnesses said he said “damned bastard.” When Bullock was saying this he was surging and maneuvering with his arms up, trying to get loose from those who held him. Wade Bartlett was one of the persons who at this time had hold of Bullock, and, with another one of the witnesses, keeping him from appellant. Appellant then said, as Wade Bartlett testified:

“ ‘Wade, he said he was going to kill me,’ and when Crossett said that I turned and looked at him and saw him with his gun. I turned Bullock loose and went to Crossett and told Crossett not to shoot; that he (Bullock) didn’t have anything. * * * Crossett was advancing toward Bullock at that time. * * * He was coming right towards Bullock and right towards me. X met him; went close-enough to put my hand on him; did put my hand on him, on his right arm; and then he swung around this way. The gun fired about that time.
* * * About the time the shot was fired X had hold of Crossett’s arm; the first I noticed of Bullock after the first shot was fired, I know he was going up on the porch, running across the porch.”

This witness further testified that when he turned Bullock loose and went to appellant that Bullock began backing off from appellant.

L. D. Tankersley testified that he had hold of Bullock when appellant shot at him the first time, and that at that time Wade Bartlett had hold of appellant, and Tankersley testified Bartlett said to appellant:

“ ‘Don’t shoot, he hasn’t got anything.’ After the first shot Bullock started to run, seemed like, and grabbed hold of me; I don’t know just exactly where he grabbed me; he held my arms, I think. I think I was just about between him and Crossett at the time he took hold of me; I then tried to jerk loose, and fell hack against the ear in the scuffle. Yes; I did get loose from him. After we fell back against the ear and he got loose from me he jumped up on the gallery; that was before the second shot. * * * I regained my balance and stayed where I was; after the second shot I saw Crossett as he ran around the house; Bullock went around the house ahead of him. * * * I heard Crossett say something immediately before the firing of the first shot; he told them to look out; he was going to shoot. As near as I can remember, he told the boys to get out of the way; he was going to shoot. He did shoot; I can’t tell exactly; it loked like the bullet came in the direction of me; I saw the fire from the gun; I saw the gun in Crossett’s hand. * * * I heard Crossett say something else with reference to shooting Bullock. He said, ‘You said you would kill me; now, I will get my gun and kill you.’ I don’t remember whether he made that statement before telling the others to get out of the way, or said it afterwards. It was before the first shot. * * * After the first shot fired I turned him loose and stepped back toward the car, and he grabbed me; I stepped to the right, and he grabbed me. I fell over against the automobile; I tried to jerk loose, and in the scuffle fell against the car. * * * When I got up Bullock jumped, up on the gallery; it seemed as if he was going to go in one of the doors, and then he turned.”

Mr. J. G. Crowley, one of appellant’s witnesses, testified that just before appellant shot the first shot at Bullock appellant said, “You heard what he said, boys; look out, I am going to shoot;” and that just before this he heard Bartlett tell appellant not to shoot; that he heard him say, “Don’t shoot him, don’t shoot him.”

Mr. J. B. Spiller, another one of appellant’s witnesses, testified that he helped pull appellant off of Bullock, and that he backed him back some four to six feet, and the others took Bullock off some eight or ten feet. Further:

“Before he drew his pistol he said, T<ook out, boys, you heard what he said; he says he is going to kill me; look out, I am going to shoot.’ I had him by the left arm then, and jerked him; I believe Bullock ran back at the time he shot. * * * No; I did not turn Crossett loose at the time or after the first shot was fired; continued to hold him. After the first shot, the best I remember, Bullock ran backwards against the car; he was going west after the first shot; he ran up against the car at the corner of the porch.”

On cross-examination, he said:

“Before I turned Mr. Crossett loose he said, ‘Turn me loose, friend.’ * * * And after that he said, ‘Look out, boys, I am going to shoot.’ Yes; I asked him not to shoot. Yes; it seemed like some two or three others asked him not to 'shoot. I think I heard some one ask him not to shoot, and tell him that Bullock didn’t have anything.”

The whole testimony, without any doubt, shows that when appellant first shot at Bullock that Bullock began trying to get out of the way and ran from appellant, first backing and trying to hold Tankersley between him and appellant; then running up on the gallery, as one of the witnesses stated, as if to go in the room; then turned and ran off the east end of the front gallery, and just about the time he was stepping off, appellant, following him, shot at him a second time; that Bullock then ran around the house on the east side, running from appellant; and that appellant followed him up, fired the third shot when he was only about 12 feet distant from him, still following him, and fired the fourth shot when Bullock, groaning, fell. The evidence further, without contradiction, shows that appellant did not shoot Bullock from the front; that only two balls struck him, both in the back, one to the right, and the other to the left of the back bone; that each and both wounds were fatal; evidently they were the last shots fired; that appellant immediately after deceased’s shooting called for his father, who was at the party, and kept calling for him to come and get his horse for him; that his father came and got his horse, and he got on him and fled.

Mr. Nevils was a brother-in-law of Bullock and lived just 180 yards east from Mr. Spiller’s, where the shooting occurred. Mr. Nevils was at the party that night, was in one of the back rooms engaged in a game, and just after the shooting, his attention was called to it, and he went out, but saw none of it.

Both the wounds of Bullock were fatal. He died therefrom a few hours later. The evidence tends strongly to show that Bullock was wholly unarmed. He is not shown even to have had a pocketknife. Appellant was unlawfully armed with a pistol when he went to this party, kept it concealed on his person, and with it shot and killed Bullock.

We have not attemipted to give the evidence in full. We regard it as unnecessary. We have carefully read and studied it more than once. In our opinion, it was unquestionably sufficient to show murder and the court did not err in submitting murder to the jury for a finding, nor did the jury err in finding him guilty of murder.

The court charged on murder, and submitted that issue to the jury for a finding in a complete charge on the subject. There is no objection to it in any way by appellant, other or further than his claim that the evidence did not justify and the court should not have submitted murder at all.

The court also submitted manslaughter in every phase raised by the evidence, and gave every one of appellant’s charges on that subject. There is no objection on this score.

The only other question appellant raises is that he objects to the court’s charge on his claimed self-defense and the refusal of the court to give his charge No. 2 on that subject. The court’s charge to which appellant objects 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 appearance of danger, as it appeared to him, and 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. Now, if you find from the evidence that the defendant killed the said Warren Bullock, but further believe that the deceased Warren Bullock, in the presence and hearing of the defendant, made a threat to take the life of the defendant, and if you further believe that the deceased thereafter advanced upon the defendant with an uplifted arm, and that it reasonably appeared to the defendant that the deceased was attempting to execute said threat, and was attempting to assault defendant with a knife, and that in so believing the defendant shot at the deceased, and that deceased thereafter turned and ran in the direction towards his brother-in-law’s house, and that the manner of the deceased, together with the threats of the deceased, caused the defendant to believe that the deceased was running to his brother-in-law’s house for the purpose of getting a gun and returning and assaulting and killing the defendant, then the defendant would not be required under the law to wait until the deceased had returned with the gun, but would have the right to slay the deceased in Ms own defense, and it is not necessary that the deceased should have been running for the purpose of getting a gun, but, if, from the manner of said threat, coupled with the words and acts of the deceased, it reasonably appeared to the defendant, viewed from Ms standpoint, that the deceased was running for the purpose of getting a gun, and returning and slaying the defendant, then he would have the right to kill the deceased, and if you find from the evidence that the defendant killed the deceased under the circumstances above detailed, or if you have a reasonable doubt as to whether or not defendant killed the deceased under the circumstances abbve detailed, you will acquit the defendant.”

This cause was tried in March, 1914, long after Act April 5, 1913, p. 278, amending articles 735, 737, and 743, and adding 737a, were in force. In compliance with that act, after the evidence was closed, and before the argument began, the court submitted the charge to appellant and his attorneys. No specific objection whatever, at that time, nor until the motion for new trial was filed, was made to said paragraph of the court’s charge copied above. He only objected to the court submitting, as stated above, murder to the jury for a finding. The only other objection there is, in any way pertaining to the charge of the court by appellant, is this:

“The defendant excepts to the action of the court in not giving his special charges No. 1 and No. 2 and No. 3, and in not giving in. charge to the jury in his main charge the principles of law contained in said special refused charge.”

What his charges No. 1 and No. 3 were is in no way shown in this record. Under all of the authorities prior to said act of April 5, 1913, his assignment on this subject could not be considered by this court. Byrd v. State, 151 S. W. 1068, and cases therein eit-. ed; Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878; Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884, and a long list of cases unnecessary to collate.

In our opinion, the judge of the lower court could not have understood from appellant’s said objection to his charge that he objected to the court’s charge hereinabove copied on any such grounds as he afterwards set up, for the first time, in his motion for new trial. The court by his indorsement in refusing appellant’s said special charge No. 2 shows this for he said:

“Refused because incorporated substantially in the main charge.”

Appellant’s said special charge No. 2 is as follows:

“Gentlemen of the jury, you are instructed that, if you find from the evidence in this case that the deceased, Warren Bullock, in the presence and heai'ing of the defendant, Thad G. Crossett, threatened to kill the defendant, Thad G. Crossett, and if you further find from the evidence that it reasonably appeared to the defendant, Thad G. Crossett, from the words and acts and conduct of the deceased, Warren Bullock, that he, the said Warren Bullock, was about to execute said threat, and take the life of the defendant, then the defendant would be justifiable in law in shooting and killing the said Warren Bullock, and the defendant would have the right under the law to continue to shoot the said Warren Bullock as long as it reasonably appeared to the defendant that the said Warren Bullock was seeking to execute the said threat, and, if you find that the defendant killed the deceased Bullock in the way and manner above detailed, you will acquit the defendant, and return a verdict of ‘Not guilty.’ ”

In this connection, and practically covering the same ground, the court gave appellant’s special charge No. 4, as follows:

“Gentlemen of the jury, you are instructed that if you find from the evidence that the defendant, Thad G. Orossett, and the deceased, Warren Bullock, mutually entered into an agreement to fight with their fists, and that the defendant intended at the time to do no more than to have an ordinary fist fight with the deceased, and that after the fight, if any, was ended by the parties being separated or otherwise that the defendant then, and there abandoned the difficulty, and ceased fighting, and thereafter the deceased, in the presence and hearing of the defendant, threatened to take the life of the defendant, and that from the acts and words and conduct of the deceased, Warren Bullock, at the time he made said threat and thereafter it reasonably appeared to the defendant that he was about to execute said threat, and was attempting to get a weapon with which to kill the defendant, then the defendant would have the right, under the law, to kill the deceased in his own right of self-defense, and would have the right to continue to shoot so long as it reasonably appeared to the defendant that the deceased was attempting to get a weapon with which to réturn and assault and kill the defendant, and this would be true even though you should find that defendant struck the first lick, and, if you have a reasonable doubt as to whether or not the defendant killed the deceased under the circumstances aforesaid, you will return a verdict of ‘Not guilty.’ ”

This charge, No. 2, seems to have embraced another entirely separate and distinct paragraph, presenting another matter. Clearly this latter part was fully embraced by the court’s charge, and we think it unnecessary to copy that in connection with the above.

The object of the Legislature, as shown by said act of April 6, 1913, amending said articles above specified, was that whatever objections an accused on trial had to the court’s charge should be distinctly then and there pointed out so as to give the judge an opportunity to correct his charge, if the objections were at all applicable. In other words, the object and intention of the Legislature was that an accused on trial must aid the lower court in giving a correct charge, instead of waylaying him, taking chances of an acquittal, and then securing a reversal, as had theretofore been the ease, by making objections for the first time to the charge of the court after the trial was concluded.

But suppose it could be held that appellant’s said objections to the charge of the court above quoted and the request to give his said special charge No. 2 raised any valid objection to the court’s charge now objected to, and for the first time specifically pointed out in the motion for new trial, then, in our opinion, no error whatever which would authorize or justify this court to reverse is shown. In the first place, the charge of the court, as given, was correct and applicable directly to the evidence, that is, so far as appellant’s rights are concerned. It is against the state. The state might have cause of complaint. Appellant himself testified that deceased, Bullock, threatened to kill him, and started towards him with his raised hand, in which he thought he had a knife, to kill him when he first shot at him, and when he started east, as he did, he thought he was going to his brother-in-law’s to get a gun and kill him.

The case of McMillan v. State, 165 S. W. 576, and cases cited therein and relied upon by appellant, in our opinion, are not in point. In the McMillan Case the court incumbered appellant’s right of self-defense with several wholly distinct, unimportant, and contested questions of fact. In this case no such appears. Everything that the court called attention to in submitting his charge in appellant’s favor on self-defense was called for by the evidence, was material, and in point.

Besides this, appellant’s said special charge No. 2, above copied, simply and solely lays down abstract propositions. It does not apply the law to the facts adduced on the trial. Such general charges have always been condemned by this court, and where charges by the court apply the law to the specific facts made by the evidence, they have always been commended by this court. See section 799, White’s Ann. C. C. P. So that, in our opinion: First, the court’s charge now objected to was correct and applicable to-the facts in this case; second, no such objection was made in time in the lower court,, if the charge was wrong, that can be considered, under the law, by this court (the objection was made too late in the court below) ; third, appellant’s charge No. 2 should not have been given, because it is a mere general abstract proposition not applied to the facts in evidence in this case; and, fourth, his special charge No. 4, which was given, embraced substantially in general terms what his charge No. 2 contained. And, taking the whole charges together, the issue presented by appellant was sufficiently presented to the jury.

There is no reversible error presented in this record, and the judgment will be affirmed.


author: HARPER, J.

text:
    ARCHER v. STATE.
    (No. 3199.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1. Criminal Law (§ 627) — Appeal—Statement of Facts.
    Where, immediately on the overruling of accused’s motion for new trial, three days before adjournment accused called to the court’s attention that he was entitled to a statement of facts under the Stenographers’ Act of 1911 (Acts 32d Leg. c. 119), and within 12 days after adjournment filed an affidavit stating those facts and praying the immediate preparation and forwarding of a transcript of the record to the Court of Criminal Appeals, is not entitled to a reversal on the ground that he was deprived of a statement of facts; it not appearing that after adjournment he made any effort to procure it, and it being apparent that he prayed the prepdration of the transcript without it, though there was yet over two months in which it could be filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1399-1408, 1412, 1434; Dec. Dig. § 627.)
    2. Homicide (§ 167) — Evidence — Admissibility.
    Where deceased, who was hilled with a knife, was found down the road the way accused went, evidence that accused while sitting on a gallery picking in the floor with his knife stated to the witness before starting down the road that he was going to get some meat with the knife, and that thereafter the witness heard some talking and two licks, is admissible; there being no direct evidence of the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 332-340; Dec. Dig. § 167.]
    Appeal from District Court, Wharton County ; Sam’l J. Styles, Judge.
    Paul Archer was convicted of murder, and he appeals.
    Affirmed.
    E. Hawes, Jr., of Wharton, and S. C. Cappel, Jr., of El Campo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at ten years’ confinement in the state penitentiary.

Appellant having no counsel, the court appointed Messrs. E. Hawes and S. C. Cappel to represent him, and they did so on the trial of the case. The motion for new trial was overruled on May 27th, and the court adjourned on May 30th. There is no statement of facts in the record, and appellant, relying on Burden v. State, 156 S. W. 1196, asks us to reverse the case because he has been deprived of a statement of facts; but he hardly brings himself within the rule there announced. It is true that 12 days only after court adjourned appellant filed an affidavit with the clerk of the court, stating that immediately after the motion for new trial had been overruled he called the court’s attention to the fact that under the Stenographers’ Act of 1911 (Acts 32d Leg. c. 119) counsel for defendant was entitled to a transcript of the stenographer’s notes, in order to enable them to make up a statement of facts, and the court stated that he was familiar with the law in that respect. But it. nowhere appears in the record that he filed any motion or made any effort to get the court to require the stenographer to make out transcript, or that he ever called on the stenographer to-furnish him the notes thereafter, or that the stenographer refused to do so. But instead by the record it is apparent that within 12 days after court adjourned appellant’s counsel filed with the clerk the following request:

“Now comes the defendant, Paul Archer, and respectfully requests and instructs, the district clerk of Wharton county, Tex., to immediately prepare and forward to the Court of Criminal Appeals at Austin, Tex., a complete transcript of the record in its present condition, in the above styled and numbered case. Hereby expressly waiving any further time in which to-file bills of exceptions or statement of facts.”'

Thus it is seen that appellant not only did not call on the stenographer for a transcript, nor seek to have the court to compel him, to furnish his notes of the testimony, but instead thereof, before the stenographer had a reasonable time in which to make out a transcript, he files a request with the clerk of the court to at once forward the record to this court, waiving time in which to file a statement of facts, when he had 68 days in which it could be filed. Instead of appellant making an earnest effort to get a statement of facts as was done in the Burden Case, supra, it seems he was making a studious effort to keep one from being furnished him by demanding the record be forwarded to this court without a statement of facts within 12 days after court adjourned. No officer seems to have neglected his duty in the premises, but appellant in his zeal seeks to have the case forwarded to this court before the stenographer has a reasonable time in which to make out a transcript of his notes, and without even calling on the stenographer for the evidence he of his own accord waives time- and demands that the record be sent to this court without a statement of facts. Under such circumstances, he is not entitled to have his case reversed; but, in order to secure a reversal because.of a want of statement of facts, there must be shown an earnest, sincere effort on the part of appellant and his counsel, and the reason of his failure tó secure a statement of facts was on account of negligence of those other than himself.

There is but one bill of exceptions in the record. It complains that the court erred in permitting Sevan Norris to testify:

“Paul Archer was sitting on the gallery picking in the floor with his knife. I didn’t notice what sort of knife it was. Paul told me that he was going to get some meat with this knife. He got up from the gallery and sat up there on the bench. He sat on the bench a good' while, and then left and went down the road. When I saw him he was going towards the railroad. I never saw anybody down the road. After Paul had gone down the road, first I heard some talking, and then I heard two licks. Paul had not come back when we left.”

This was a case, as shown by the charge of the court, depending wholly on circumstantial evidence. The record discloses that deceased was found the next morning “down the road” the way Paul went, and that he was killed by being cut to death. This being a case depending on circumstantial evidence, there was no error in admitting the testimony, for in a case of that character it has been held that the mind seeks to explore every possible source from which any light, however feeble, may be derived. Noftsinger v. State, 7 Tex. App. 302; Black v. State, 1 Tex. App. 368; Cooper v. State, 19 Tex. 449.

There is no other bill of exceptions in the record, and, in the absence of a statement of facts, there is no other question presented in the motion for new trial we can review.

The judgment is affirmed.


text:
    BARNES v. STATE.
    (No. 3201.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1. Criminal Law (§ 595) — Continuance— Materiality of Testimony of Absent Witness.
    Where, on a trial for selling intoxicating liquor in prohibition territory, witnesses for the slate claimed to have purchased liquor from accused in his restaurant, it was error to deny a continuance because of the absence of his wife and another witness, who would have testified that they helped to carry on the business of the restaurant and that no intoxicating liquor could have been about the premises without them knowing it, that he was not engaged in selling intoxicating liquor, that no such liquor was kept about the premises, that he had not been absent from his home town to any place -where such liquor could be purchased, that no such liquor had been shipped or carried to him or received or stored by him anywhere about the premises, and that he had no premises or storage in Ms custody, but that he kept and sold publicly nonintoxicating cider; it appearing that his diligence was sufficient. •
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    2. Juey (§ 131) — Examination oe Juboes— Rioht to Examine.
    While counsel should not be permitted to fritter away the time of the court in asking useless questions of the jurors, accused’s counsel was entitled to a list of the jurors and to ask each juror separately any'question tending to show whether he had formed an opinion or had any bias or prejudice and should not have been required to address his questions to the jury as a whole.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    Appeal from District Court, Young County; Edgar Scurry, Judge.
    Cleve Barnes was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Reversed and remanded.
    C. W. Johnson and A. L. Brantley, both of Graham, for appellant. C. B. Lane, Asst. A tty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of pursuing the business or occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence fully supports the verdict, and if the evidence for the state should be believed by the jury, as they evidently did, it would show conclusively that appellant was pursuing the occupation of selling intoxicating liquors in prohibition territory.

The first question presented is a most serious one. All the witnesses testify that appellant was running a restaurant in Graham, Young county, from about the 15th day of September, 1913, until the 1st of last January. Seth Mabry testified that he had bought as many as 15 drinks from appellant in his restaurant across the counter; that the price was 20 cents a drink; that it tasted something like whisky. O. W. McBrayer testified he bought two pints of whisky from appellant, the price being $1 a pint; that the whisky was behind a trunk in the restaurant. N. A. Copeland testified he had purchased four pints of whisky from appellant, paying him $1 a pint. The purchases were made at different times. E. Stovall testified he purchased one pint from appellant and paid him $1 for it. F. M. Christian testified he purchased a pint of whisky from appellant, and other witnesses so testified.

Appellant filed his first application for a continuance on account of the absence of his wife, who had been duly summoned; diligence being shown. The affidavit of Dr. Terrell is attached to the application, who swears that Mrs. Barnes, about two weeks before the date the case was called for trial, had been confined and given birth to twins; that she was sick and unable to attend court. He also had process issued for Miss Cora Barnes, but the process had not been returned at the date the case was called for trial. He states his wife and Miss Barnes will swear:

“The defendant can prove by his wife that defendant moved to Graham and took charge of a restaurant business about the middle of September, 1913, and continued the same to the last of December, 1913, when he sold out the business to Mr. Taylor. That during that time his only business, occupation, and calling was a restaurant and eating house. That the defendant was not in any way engaged in the occupation and business of selling intoxicating liquor in Young county, Tex. That he kept his family in the same building with his restaurant and the witness helped to carry on the business of restaurant. That no intoxicating liquor was kept about the premises. That defendant had not been absent from his home town to any place where intoxicating liquor could be purchased during his residence in Graham. That no intoxicating liquor had been shipped to him or received by him or carried to him, or stored by him anywhere about the premises, and the defendant had no other premises or storage in his custody during the time he conducted the restaurant business. That it was impossible for him to have had intoxicating liquor about the premises and said witness not know it. That Oora Baldwin was. a helper, also residing at the place and lived with his family, and also knows that defendant- was not engaged in the occupation and business of selling intoxicating liquors and knows tbe facts that his wife knows as to the character of the business carried on by the defendant and will so testify. The said witnesses, Barnes and Baldwin, further knew that defendant kept for sale a nonintoxicating cider, shipped in by the keg, cask, or barrel, and sold over the counter publicly. That it was sold by the drink or by. the bottle, as customers desired, and that beverage was not intoxicating.”

It is thus seen this testimony was very material to his defense. The state’s witnesses say they purchased the liquor in this restaurant, and he swears in the application that the two ladies will testify that no whis-ky was kept in the restaurant or sold by appellant in the restaurant; that they both stayed in the restaurant. We cannot tell what weight the jury would give to such testimony; but, the issue being whether or not appellant did sell to the state’s witnesses whisky in this restaurant, his diligence being sufficient the testimony is of that material nature that he was entitled to have his application for a continuance (it being the first application) granted, and the court erred in overruling it.

While not presented in a way which we would feel authorized to reverse the case on account thereof, yet, as the case will be reversed, we feel that the court perhaps abridged appellant’s counsel’s right to question the jurors too much. His counsel contends that he was a stranger in the county, and he desired to question each juror as to his bias and prejudice in the matter and knowledge of the facts. The court declined to allow him to examine the jurors individually, and required him to address his questions to the jury as a whole, refusing to permit him to have a list of the jurors while conducting the examination. Of course, counsel should not be permitted to fritter away the time of the court in asking useless questions; but counsel, we think, was entitled to have a list of the jurors, and ask each juror any question which tended to show whether or not he had formed any opinion in the case, or had any bias or prejudice against the defendant. We have said this much so that this matter will not occur on another trial. •

The court did not err in refusing to quash the indictment, as the form was specifically approved in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127, and the other matters presented in the record show no error; but, on account of the error of the court in refusing to grant a continuance, the judgment is reversed, and the cause remanded.


text:
    HAWORTH v. STATE.
    (No. 3189.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    1. Trespass (§ 87) — Criminal Responsibility — Indictment—Requisites.
    An indictment which alleges that accused unlawfully and knowingly entered on a strip of land known as “the Commons,” owned by a county named, and under the control of a person named, the mayor of the city named, and removed therefrom earth and sand without consent, is as against a motion to quash insufficient for failing to describe the Commons.
    [Ed. Note.- — For other cases, see Trespass, Cent. Dig. §§ 176-181; Dec. Dig. § 87.]
    2. Trespass (§ S8) — Criminal Responsibility-Evidence.
    Where the indictment charged accused with entering on the Commons of a county under the control of the mayor of a city and, without consent, removing earth and sand therefrom, while the mayor testified that he had the care of the property by virtue of his office as mayor, and there was no proof that the property was in the city, a conviction was unauthorized for want of sufficient evidence.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. § 182;' Dec. Dig. § 88.]
    8. Courts (§ 163) — Jurisdiction—Issues—
    Trespass to Try Title.
    Where on a trial for entering on the Commons of a county and removing therefrom earth and sand, the evidence showed that a deed executed in 1859 apparently vested the title in the county; that in 1873 a third person went into possession and erected a mill and houses, and fenced the land, and that he and those holding under him, including accused, had peaceable and adverse possession until 1912, when the city asserted title, which accused refused to concede, the issue involved one of title which cannot be tried in the criminal courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 411, 443, 479, 1294; Dec. Dig. § 163.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    A. B. Hayworth was convicted of crime, and he appeals.
    Reversed, and prosecution ordered dismissed.
    J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted under an indictment which charged him with “unlawfully and knowingly entering upon that strip of land known as ‘the Commons,’ then and there owned by the county of Comanche, and then and there under the control and supervision of J. D. Waring, who was then and there the mayor of the city of Comanche, and removing therefrom earth and sand without the consent of the said J. D. Waring.” Appellant moved to quash the indictment on several grounds, one of which, we think, is well taken. Mayor Waring in testifying stated:

“The Commons is a strip of land 70 feet wide on the north bank of Indian creek, and extending across the old town site of 200 acres, and more than a mile long, deeded by John Duncan to the Chief Justice and Commissioners of Comanche county and their successors in office, deed dated August 15, 1859.”

It is thus seen by this testimony the Commons is described, but not so in the indictment; it being merely referred to as “the Commons” without alleging in what part of the county same is situate, and the indictment contains no allegation that the Commons is within the limits of the city of Comanche. The allegation as to the land in the indictment is too vague and indefinite. We have in cities and towns parks which are sometimes called plazas and sometimes commons. Just an allegation that one entered upon a park or common without alleging it was the only park or common in the city would not be a sufficient designation of the property entered upon. In so far as the record shows there may have been a common deeded to Comanche county, in connection with every town site in the county, and this indictment would not put appellant upon notice which common he is alleged to have entered upon and received earth and sand. The commons should be described in the indictment as it is described in the mayor’s testimony, or in some definite way. It being too vague' and indefinite, the motion to quash should have been sustained. In a civil suit for the land such description would not be sufficient, and if recovery should bo had upon a petition containing only such allegations as are contained in the indictment in this case, no judgment of any force or effect could be entered thereon, without additional allegations in some way describing the property, or showing in what part of the county the property could be found.

And as the indictment is quashed, this cause will necessarily be dismissed, but if we should consider it on its merits, we do not think the evidence would justify a conviction. There is an allegation that the Commons belongs to the county of Comanche, and is under the supervision and control of J. D. Waring, mayor of the city of Comanche. The mayor says, if he has the care and control of the property, it is by virtue of being elected mayor of the city of Comanche; that he has no other or different authority. There is no proof in the record that the city of Comanche contains the 200-acre tract deeded by Duncan to Comanche county, and if the city of Comanche does not embrace this tract, certainly being mayor' of that city would not place Mr. Waring in control of it. Some showing should have been made how the city of Comanche came in control of the property, for it is the city’s control that Mayor Waring shows he had. The deed introduced by the state shows that the county of Comanche owned the property, and not the city.

Again while the deed of Mr. Duncan made in 1859 apparently vested the title to the strip in the county of Comanche, yet the evidence shows that J. P. Anderson went into possession of the tract of land (off of which appellant had the sand and gravel taken) in 1873, that he erected thereon a mill and houses, and fenced the land, and that it has been fenced from that day until the day this prosecution was -begun, and that he and those holding under him had had peaceable and adverse possession of the land from 1873 to just about the date of the institution of this prosecution in 1912. The city then asserted title to the land, which appellant refused to concede, but he agreed that the money received for the sand and gravel should be deposited in a bank to await the determination of whether the land belonged to the city or the county, or appellant, and the money received for the gravel was in fact deposited in the bank to await the result of such issue.

It seems to us that this is a case for the civil courts rather than the criminal courts. There is a dispute as to whom the land now legally belongs. The deed introduced in evidence would show that the county owned the land in 1859, yet in Í873 those under whom appellant claims went into possession of the land in question, fenced it, claiming it adversely to all the world. For the last few years appellant has been in possession, raising crops thereon. It may be that the county’s title is superior. On the other hand, it may be that title of appellant has become perfect by limitation, if not otherwise. But in a criminal case we do not try the title to the land, and it is not such a case, as made by the testimony before us, that should be tried in the criminal courts.

The judgment is reversed, and the prosecution ordered dismissed.


text:
    REEVES v. STATE.
    (No. 3203.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1. Homicide (§ 3) — Offenses — Deadly Weapons.
    A pocketknife with a blade from 2 to 2y2 inches long is not per se a deadly weapon.
    LEd. Note. — Eor other cases, see Homicide, Cent. Dig. § 5; Dec. Dig. § 3.]
    2. Homicide (§ 307) — Prosecution — Evidence — Sufficiency.
    Under Code Cr. Proe. arts. 717 and 719, declaring that 'if the instrument by which a homicide is committed is not one likely to produce death, it cannot be presumed that death was intended, unless from the manner of its use such intention appears and that if a homicide takes place under the influence of sudden passion, but by the use of means not in their nature calculated to produce death; it is not murder unless there is an intention to kill, accused, who killed deceased with an ordinary pocketknife, the blade of which was less than three inches long, is entitled to a charge on aggravated assault, where he testified that he did not intend to kill deceased and there was evidence to show that the blow was struck when accused was- retreating.
    [Ed. Note. — For other cases, see Etomicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    Appeal from District Court, Chambers County; B. B. Hightower, Judge.
    Dempsey Reeves was convicted of murder, and he appeals.
    Reversed and remanded.
    E. T. Branch, of Houston, and E. B. Pickett, Jr., of Liberty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexea

   HARPER, J.

Appellant was convicted of murder, and Ms punishment assessed at five years’ confinement in the state penitentiary.

There are no bills of exception, unless we should consider the objections to testimony as appears in the statement of facts, but in Ms approval the trial judge narrows his approval so that it reads that he “approves it as a statement of facts” only. But we have carefully reviewed the objections made to the testimony, although only presented in this way, and are of the opinion the .court did not err in his rulings.

The state’s evidence amply and fully supports a conviction for murder, as it would ténd to show a premeditated and formed intention to kill. However, appellant swears •he did not intend to kill deceased. The weapon used was an ordinary pocketknife, with a blade, as estimated by the witnesses, from 2 to 2% inches in length. He testifies that he and Addie Tilton were talking, when Joe Frazier, deceased, approached them and said, “What are you two sons of b-hes doing out here?” that Tilton responded and said, “That is a mighty poor name to call a man,” when deceased remarked, “Well, I will take it back for yon;” that he, appellant, then remarked, “Well, Joe, I think you ought to take it back for me, too, because I never cuss a man for a s-n of a b-h unless I mean it,” deceased responding, “You go to hell — I don’t have to take nothing back.” Other words followed, and appellant says he took off his coat and threw it on the gallery; that both had out their knives, and after quarreling awhile he, appellant, got on his horse and started home, but, remembering he had left his coat on the gallery, he returned to get it, and deceased remarked, “I guess you son of a b-h, you come back after it,” when appellant responded, “No, I came back after my coat;” that deceased continued to curse, when he said, “Joe, if nothing else but a fight can do you, I will fight you fair;” that deceased ran around in front of Mm with a knife in his hand and struck at Mm, and he, appellant, jumped back and struck at deceased and ran. All the evidence shows that appellant ran after he struck the blow with his knife. The testimony further shows that appellant weighs about 135 pounds, while deceased was a larger man and would weigh 160 pounds.

As before stated, the testimony for the state supports a conviction for murder. The only question is, Hoes the above testimony, together with appellant’s statement, “that he did not intend to kill and was trying to get away,” raise the issue of aggravated assault, and should the court have submitted that issue? Article 719 of the Code provides that if a homicide takes place under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, it would not be murder unless there was an intention to kill, hut the party would be guilty of some grade of assault. And article 717 provides that if the instrument by which a homicide is committed is to be taken into consideration, and if it is not such an instrument as is likely to produce death, it cannot be presumed that death was designed, unless from the manner of its use such intention evidently appears.

The instrument used was an ordinary pocketkmfe, as shown by all the testimony, and tMs has been held not to be per se a deadly weapon, and under appellant’s testimony, and the testimony of his witnesses, we think the issue of aggravated assault was sufficiently raised to require it to be submitted to the jury for a finding. Appellant, at the time the charge was submitted to Mm for inspection, objected to the charge because it did not submit the issue of aggravated assault, and because the court failed to do so presents such error as we think entitles appellant to a reversal of the case. Branch’s Grim. Law, § 434.

The judgment is reversed, and the cause remanded.