author: BROWN, C. J.

text:
    IRVING v. FREEMAN.
    (Supreme Court of Texas.
    April 16, 1913.)
    1. Appeal and Error (§ 1175) — State Courts —Jurisdiction —Power oe Court op Civil Appeals.
    A court of civil appeals can reverse and remand a judgment of the district court when against the preponderance of the evidence, but it cannot enter final judgment against plaintiff unless, discarding all adverse evidence and inferences, the evidence favorable to the plaintiff, with all fair inferences which a jury might draw therefrom, is not sufficient to authorize and support a verdict in his favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573 — 1587; Dec. Dig. § 1175.]
    2. Master and Servant (§ 286) — Injury to Servant — Nesligence op Fellow Servant.
    In an action for injuries to a brakeman who fell between ears when one was cut out from the train, plaintiff’s evidence of the negligence of the railroad company helú, sufficient to carry the case to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    Error to Court of Civil Appeals, Fifth Supreme Judicial District.
    Action by J. F. Irving against Thomas J. Freeman, as receiver of the International & Great Northern Railroad Company. A judgment for plaintiff was reversed without remanding by the Court of Civil Appeals (136 S. W. 810), and plaintiff brings error.
    Judgr ment of Court of Civil Appeals reversed, and cause remanded to district court.
    Hart, Hart & Landers, of Mineóla, for plaintiff in error. Stafford & Geddie, of Min-eóla, J. A. Germany, of Grand Saline, Jones & Jones, of Mineóla, and Wilson, Dabney & King, of Houston, for defendant in error.

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

   BROWN, C. J.

Irving instituted this suit in the district court of Wood county against Freeman, receiver of the International & Great Northern Railroad Company, to recover damages to him caused by an injury received while plaintiff was engaged as a brakeman in the employ of the defendant in error, through the negligence of other employes engaged with him in switching cars in a freight train in the yards of the said railroad company at Mineóla, Tex. It is unnecessary to go into detail of the pleading or of the trial. The trial court entered judgment for Irving, which was reversed by the Court of Civil Appeals of the Fifth district, and judgment was entered against the plaintiff, Irving.

It is settled in this court that a Court of Civil Appeals can reverse a judgment of the district court when against the preponderance of the evidence and remand the case; but it cannot enter final judgment against the plaintiff unless, discarding all adverse evidence and inferences, the evidence favorable to the plaintiff, with all fair inferences which a jury might- draw from that evidence, is not sufficient to authorize and support the verdict and judgment for the plaintiff. We will therefore state the facts favorable to plaintiff’s right to recover and" test the correctness of the judgment rendered by the Court of Civil Appeals thereby.

The plaintiff testified: “I have worked for Thomas J. Freeman as receiver of the International & Great Northern Railroad Company; commenced on the 15th day of January, two years ago, and quit when I got hurt October 23, 1909. Clayborn handed me his lantern and saw me go to the caboose, well knowing that I did not know that the train was to be cut there; that, while I was in the caboose, he knew I would not get on the ground and try to outrun the train; it is not customary-or the rule. I came on top of the cars not knowing that there would be a cut made. They did not tell me, and I did •not know, not being with them at the time. They knew what they were going to do. They did not tell me, and I went on top, intending to go to my position. They should not have started till they had a man on the rear end of the train to protect against crossings. I started to the rear end of the train to protect these cars, and, while I was starting to cross from the second to the third car from the caboose, the cut was made and I lost my balance * * * and fell and so forth. -We had three lanterns;- they belonged to Rucker, Clayborn, and myself. Clayborn handed his to me, and Rucker’s was setting on the caboose platform. He knew I was going over the cars. * * * I remained in the caboose to put up the lamps. The train had started before I got on top of the cars.” On cross-examination he said: “I worked for the railroad company about six years; -nearly that time. We had six or seven cars. The engine was backing up; it was going west; the caboose was next to the engine. I was rear brakeman; my duty was' to be on the back end of the train to protect against crossings and cars from getting away. It is a custom and rule among brakemen and crews in working freight trains that each man is supposed to look out for his own position as long as they don’t endanger one another’s lives; we work principally by signals. You cannot get on top in the middle of the car and see a man by the side of it. You could see at the end of it if he had been standing at the end of it. He cut the cars, and, as I went to step, I was not looking to see where he was. I was looking to be sure of my footing so I would not step between the cars. Just as I went to make the step, the cars rolled. Clayborn is bound to have made the cut just in time to give them room to roll. I could not say when he made the cut. I know as I went to step the cars rolled away so I could not reach them, but I suppose he made the cut about the time I got to the end of the car; Just in time for them to roll away. It is not necessary to tell the oth'er brakemen where we are going unless we endanger one another. The brakeman is supposed to run out from the car and look to see whether or not there is anybody up there; if he is going to endanger another man’s life. He was endangering a man’s life, because this man knew I was coming on top. He knew I would get to the end of the car as soon as possible, and he knew I was not going to get on the ground to outrun the cars. I did not tell him, but he had railroaded long enough to know it. I did not tell him, because I knew it was not my duty, arid I did not know he was going to make the cut. I think he ought to have told me; going to endanger my life, he should have told me. I was not supposed to know where those cars were going, but it was where we were headed for. I was supposed to get on the rear end of the train to protect those cars. I did not ask where the cars were to be carried; I made the statement shown me by counsel. When we endanger one another’s life, we are supposed to tell one another, or when we are going to make a cut or switch or anything where one is liable to get hurt; if we tell one another what we are going to do, we are supposed to know when any one gets in danger; supposed to know where each other are. I could not have supposed they were going to the house track, but, from all appearances, they started that way. Q. I will ask you if you did not make this statement: ‘It was not my duty to know it; I did not know we had cars for Texas & Pacific delivery; it was not my duty to know it, because it is the switchman’s duty to make the cut, and, unless-he tells, you don’t know when cuts are to be made’? A. That is a fact unless we know we are going to endanger each other.' Q. T did not tell brakeman Clayborn I was going on top of the ears.' It was not my duty to tell him’? A. No, sir; I did not tell him for it was ndt my duty. I never knew he was going to endanger my life, and he did. I knew there would be a general shifting around those cars, but I knew they were going to work the house before there would be a general shifting. When brakemen make a cut, they have different things they do then. We work by signals; they give different signals; sometimes they stop and sometimes they go ahead. If they want to stop, they give stop signals.”

We have carefully examined the evidence given by the plaintiff, and we are clearly of the opinion that, if there had been no other evidence produced before the jury, that jury might have given a verdict for the plaintiff. Under that state of facts, the honorable Court of Civil Appeals had no authority to enter judgment for the defendant, although the preponderance of the evidence was against the verdict (if it was). Patrick v. Smith, 90 Tex. 267, 38 S. W. 17. The Court of Civil Appeals had authority to reverse the judgment, if the verdict was against the preponderance of the evidence. In the case cited above this court said: “If there is no evidence to sustain a judgment upon an issue material to a recovery, the appellate court may in its discretion render judgment for the appellant or remand the cause for a new trial. In such a case this court would probably have no more authority to revise their action than it would have to reverse a judgment of the district court, merely because in their opinion the ends of justice would be promoted by a new trial. But if the evidence be conflicting, and the judgment be reversed because the verdict of the jury or the findings of the trial court are against the great preponderance of the evidence, we think the only proper course is to remand the cause. Clearly, where there has been a trial by jury, the appellate court could not, upon reversal upon the ground stated, render the judgment, because .it is such a judgment as the district court had the power to enter. Its duty, where the verdict is set aside because it is against the great weight of the evidence, is to order a new trial; and, by analogy, it seems that, when the Court of Civil Appeals set aside the finding of the trial court, for a like reason the cause ought to he remanded. But the statute expressly directs this course ‘when there is any matter of fact to be ascertained.’ It is not the province of the Court of Civil Appeals to determine a question of fact in the first instance. Their jurisdiction is to set aside a finding by the court or jury, when contrary to the evidence or against such a preponderance of the evidence that in their opinion it ought not to stand.”

The extract clearly settles the question before us. Anything' additional would be superfluous. We must reverse the judgment of the Court of Civil Appeals. It is therefore ordered that the judgment of that court be reversed, and the cause be remanded to the district court of Wood county. It is further ordered that the plaintiff in error recover all costs of this court and of the Court of Civil Appeals against the defendant in error.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    McKELVEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied April 16, 1913.)
    1. Criminad Law (§ 595) — Continuance— Absence or Witnesses.
    Where all the witnesses testified that a keg of beer was on the premises at the time and prior to the shooting of decedent, a denial of a continuance on the ground of the absence of a witness who would testify that the proprietor of the premises shortly after the killing hired a third person to take a beer keg from the premises and hide it was not erroneous.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]

      2. Criminal Law (§ 597) — Continuance-Absence oe Witnesses.
    Where accused and the eyewitnesses to a homicide testified, but none of them stated that the eyewitnesses were so intoxicated that they could not remember what occurred, and third persons present with the witnesses just prior to the shooting were in court, but none of them were called to prove the fact of intoxication of the witnesses, a denial of a continuance on the ground of the absence of a witness who would testify that the witnesses were so intoxicated that they could not know what took place was not erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 5$7.]
    3. Criminal Law (§ 589*) — Witnesses (§ 48) — Competency — Indictment — Continuance.
    Witnesses are competent to testify on the trial of an offense, though they are indicted for a separate and distinct offense, and it is not necessary to postpone the trial until the witnesses have been tried or to hear evidence to determine whether they are guilty of the offense charged.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1315, 1319; Dec. Dig. § 589; Witnesses, Cent. Dig'. §§ 109-115; Dec. Dig. § 48.J
    4. Criminal Law (§ 407) — Evidence — Admissions— Silence.
    Where the state claimed that accused walked into the room where decedent and third persons were, and immediately shot decedent, while appellant claimed that decedent attacked him and grabbed him, and that during the struggle accused got out his gun and shot decedent, the testimony of an eyewitness that accused made no reply to a question put to him by the witness immediately after the shooting as to why he shot decedent was admissible to throw light on the transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 898-902, 949, 968, 970, 971; Dec. Dig. § 407.]
    5. Criminal Law (§ 655) — Trial—Conduct of Presiding Judge.
    Where the cross-examination of a state’s witness proceeded on the theory that the district attorney and a justice of the peace had been guilty of improper conduct on an ex parte examination of witnesses, and the court permitted many questions without eliciting proof of any improper conduct, and informed accused’s counsel that, if there was improper conduct, he would be given the widest opportunity to show it, and many more questions were asked on cross-examination, the remark of the court made on objection to questions on cross-examination that, if counsel knew of any improper conduct, he could prove it, but he should not take the time of the court fishing around, was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    6. Criminal Law (§ 1166%) — Harmless Error-Impaneling Jury.
    Where the court, on being advised that a juror who had been selected and sworn had formed and expressed an opinion, ordered the other six jurors accepted and sworn into an adjoining room in charge of an officer, and the juror was examined, and thereafter the court stated he would sustain a peremptory challenge, but no challenge was interposed, accused could not complain because the juror sat in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    7. Homicide (§ 158) — Threats—Admissibility.
    Where there was evidence that accused armed himself with a pistol and went to the polls, and then directly to the place where he killed decedent immediately on seeing him, evidence that accused immediately before arming himself stated that he‘was going to vote a negro, and in about 20 minutes he was going to kill a person, was admissible to prove threats within the rule that the facts must individuate decedent as the person in regard to whom the threats were made.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    8. Criminal Law (§ 1170) — Harmless Error-Erroneous Exclusion op Evidence.
    Where accused testified as to how the killing of decedent occurred, the error, of any, in excluding contradictory testimony, was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    9. Homicide (§ 295) — Evidence — Instructions — Adequate Cause.
    Where accused testified that decedent, a larger and stronger man, attacked him, struck him, and grabbed him, and that during a struggle accused got out his gun and shot decedent, an instruction defining adequate cause as such as would commonly produce a degree of anger, resentment, or terror in a person of ordinary temper sufficient to render his mind > incapable of cool reflection, and that an assault and battery by decedent causing pain was adequate cause, and that to reduce a voluntary homicide to manslaughter, adequate cause must have existed, and the mind of accused must have been rendered incapable of cool reflection produced by adequate cause, etc., properly submitted the issue of adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    10. Criminal Law (§ 1137) — Instructions —Review.
    Accused may not complain of an instruction which is a virtual copy of a charge requested by him, for, if erroneous, the error is invited.
    [Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 3007-3010; Dec. Dig. §

    11. Criminal Law (§ 823) — Instructions— Misleading Instructions.
    Where the court charged on reasonable doubt generally and on reasonable doubt as between degrees of the offense, an instruction that the jury may not reach a verdict by lot or chance was not objectionable, though it would have been better to have used the phrase “if the jury found accused guilty” in beginning the charge.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dee. Dig. § 823.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Monroe McKelvey was convicted of murder in the first degree, and he appeals.
    Affirmed.
    A. W. Gibson, of Rogers, and James F. Hair, of Belton, 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

      For other cases 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 in the first degree, and his punishment assessed at life imprisonment in the penitentiary.

The state’s evidence would show: That appellant was running a restaurant at Temple, and had as one of his waiters Jett Haley, a woman whose virtue was questionable, to say the least. Prior to the time she went to work for appellant'as a waiter, she admits she was boarding and staying- with a woman who was known as a prostitute. That while staying with this woman she was frequently visited by appellant, and was also quite as often visited by deceased. Appellant subsequently employed her. in his restaurant, and she slept in the restaurant; appellant also sleeping in this building. On the day of the homicide she went from the restaurant to the home of the woman with whom she had formerly boarded. That in addition to Mrs. Gray and Jett Haley two other women were present, Minnie Nunnerly and Bessie Harris, both of whom were also of questionable virtue. During the evening deceased and some four or five other men went to this house, but at the time the homicide was committed all the men had left but deceased, who was sitting in a room with the four women. It is also shown that these people had a keg of beer, and perhaps some bottled beer, and they imbibed pretty freely. According to the women, appellant appeared at the back door of Mrs. Gray’s house, entered, having a drawn revolver in his hands, and asked Mrs. Gray, “Where is Jett?” and, upon being informed that she was in the other room, he went into this room, and seeing deceased shot and killed him. Jett Haley fled when she heard appellant ask Mrs. Gray where she was, and did not witness the shooting, but the other women say that deceased had begun to arise from his chair when the first shot was fired; that he had no weapon, and made no remark or demonstration, but appellant walked in and killed him without a word being spoken by either man. Appellant testifies, and says he went to the home of Mrs. Gray in search of Jett Haley; that he asked the question Mrs. Gray says he did, but denies having any weapon in his hand at the time; that deceased was a larger and stronger man than himself, and deceased at once attacked him. To use his language, he says: “Howard got up and struck me. Struck at my face, and I dodged the lick and he struck my arm, and he grabbed me. He was a larger man than I was, and was trying to get me down on the floor. I got my gun out, and he grabbed my gun, and we tussled around there a little while in the room, and the gun fired a couple of times in the room. I gave a big jerk, and when I jerked away from him I slipped and fell, and when he come at me again I shot him and turned round and ran out of the room.” He also says he had been 'informed prior to this time that deceased intended to kill him. This is a sufficient statement of the facts, as the other evidence will be discussed in passing on the questions raised.

Appellant moved to quash the indictment on the ground that it charged an impossible date; the contention being that, where the indictment alleges the offense to have been committed “on or about the 31st day of August, 1912,” the “2” is so written that it is not clearly discernible what was intended. This contention cannot be sustained. The figure “2” is plainly enough written for anyone to discern what figure was intended; in fact, is exactly like another “2” written in the indictment.

Appellant complains of the action of the court in overruling his application for a continuance. By one of the witnesses, Ered Wagner, he states he expects to prove that Sirs. Gray shortly after the killing hired him, Wagner, to have a beer keg taken away from her premises and hide the same. As all the witnesses testify to this keg of beer being on the premises at the time and prior to the shooting, this would not be material evidence. He further states that he expects to prove that the women after the shooting were intoxicated to the extent that they could not know and intelligently remember what took place. Appellant himself testified, as did every other eyewitness to the transaction, and none of them so state in their testimony. The record shows that the men who were with these women just prior to the shooting were in attendance on court and none of them introduced to prove that fact. So we are of the opinion the court was authorized to hold that, if the witness was present, he would not probably so testify, and, if he did, it was not probably true.

Appellant also complains that at the same term of court Cecil Tosh and Pete Hawthorne were indicted by the grand jury, not for complicity in this offense, but for separate and distinct offenses, and he alleges that these indictments were obtained by the district attorney to affect their credit as witnesses; that he desired to use these two men as witnesses, and’moved the court to continue- his case until they had been tried for the offenses with which they were charged ; that, if he would not continue the case, to hear evidence and determine whether or not the men were guilty of the offense with which they were charged. Had they been indicted for complicity in this homicide, either as a principal or accomplice, our statute provides that by making the proper application their trial should have first been had. But, as they were not charged with complicity, in the offense for which appellant was being tried, the indictments against them did not disqualify them as witnesses, and it was not necessary to postpone this case until they were tried or hear evidence to determine whether or not they were guilty of the offense charged against them.

While the witness Mrs. Cordie Gray was testifying she was permitted to state in answer to the question, “What did you say to the defendant just after the shooting?” that she asked him, “My God! what on earth made you do that? My God! this is awful,” and that appellant made no reply. Appellant does not deny in his testimony hearing this woman propound this interrogatory to him, nor that he vouchsafed any answer thereto. This was so closely connected with the shooting as to be almost if not a part of the transaction. The state was contending that appellant walked into the room and shot deceased without provocation, while appellant was contending that deceased assaulted him, licks were passed, and a scuffle was had before the shot was fired. This remark made at the time it was made threw light on the transaction, and would aid the jury in determining which theory was correct, and was properly admitted. Ryan v. State, 142 S. W. 881; La Grone v. State, 61 Tex. Cr. R. 170, 185 S. W. 122; Knight v. State, 144 S. W. 972, and cases cited on page 984; Wynne v. State, 59 Tex. Cr. R. 126, 127 S. W. 214; Kinney v. State, 144 S. W. 260; Keeton v. State, 59 Tex. Cr. R. 316, 128 S. W. 410.

While' the witness Minnie Nunnerly was testifying on cross-examination, appellant propounded a question, to which the state objected, and in sustaining the objection the court remarked: “If you know where the improper work is, you can prove it, but you cannot take the time of the court fishing around.” Exceptions were reserved to the remark of the court, and in approving the bill the court states: “Counsel for the defendant had proceeded in interrogating the witness Minnie Nunnerly in regard to, what they seemed to believe was improper conduct on the part of the district attorney and justice of the peace at Temple in their conduct of an ex parte examination of the witnesses, and investigation into the homicide after it occurred. The court had permitted many questions by counsel for defense, but no question had elicited any improper conduct so far as this witness knew. The court had stated to counsel for defense, if there was improper conduct on the part of the officers intimidating this witness or any other witness, that they would be granted the widest opportunity in uncovering'it. Many more questions were asked the witness in regard to the conduct of the officers, and the court believed that nothing improper had been shown from the testimony of the witness as having been committed by the district attorney or justice of the peace in the statements taken, and investigation made by them, and, when objection was made, the court stated to counsel that, if they knew of any improper work having been done by the district attorney and could prove it, they could do so, but that they should not take the time of the court fishing around to see what they could show by the witness.” Under such circumstances, the remark of the court presents no error, as it seems to have been elicited by the conduct of defendant’s counsel.. .

Another bill shows that after seven men had been selected and sworn as jurors to try this case during an intermission the district attorney was informed that one of them so selected, J. D. Allen, had formed and expressed an opinion. He called the court’s attention to the matter, when at the request of counsel for the state and defendant the other six jurors were sent into an adjoining room in charge of an officer, while the juror Allen was further examined. After hearing the evidence adduced, the court stated that he would sustain a peremptory challenge to the juror if the counsel for the state or defendant desired to challenge him, when the juror was again accepted by state’s and defendant’s counsel, and was a member of the jury that tried appellant. This bill presents no error. The court showed extreme fairness in the matter by telling counsel he would sustain a challenge for cause if either desired to make it; and, not having done so, no complaint can subsequently be made.

In another bill it is shown that Leon Wilson was in the restaurant of appellant a short time before the killing, and in a conversation with appellant, and appellant had said: “He was going to vote a negro, and in about 20 minutes he was going to kill a damned son of a bitch.” The testimony further shows that he immediately armed himself with the pistol that he used in slay-, ing deceased; that in a short time he did go to the polls; that a negro was at the polls with him, and that when he left the polls he went direct to the place of residence of Mrs. Gray, and by the state’s testimony that he walked into the" room where deceased was sitting with the pistol in his hands, and deliberately killed deceased. It is true, as contended by appellant, that to render threats admissible in a homicide case our decisions have stated that the facts and circumstances must individuate the deceased as the person in regard to whom the threats were made. In this case we think the evidence offered in behalf of the state would clearly show and authorize the jury to find that appellant referred to deceased when he made the. threat, 'and therefore the testimony was properly admitted. Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336.

While the witness Lucias Green was testifying, the defendant proved by the witness that after the shooting was over appellant came to him and got in his buggy, and he drove appellant to the city; that while on the way to the city appellant made a statement to him in regard to the difficulty, which would be what is termed a self-serving declaration. -If not res gestas, it would not be admissible, and the court sustained an objection to its admissibility. Appellant insists it was res gestae of the transaction. The time when the statement was made by appellant to Green elapsing between the shooting and the alleged statement is variously stated in the record, but it may be said that it was not so remote as to exclude the statement from being res gestee on account of lapse of time alone. The’ question is, Do the facts and circumstances connected therewith show that state of mind which would evidence that it was but the events speaking through appellant, or do the facts and circumstances show calmness- and deliberation on the part of appellant, and that he was but speaking about the event? We think the latter is true; but, if mistaken in this, the exclusion of this testimony could have not been hurtful to defendant. He himself testified, and told how the transaction occurred, and, if the witness Green had been permitted to testify to what he claimed appellant had told him, such statement would have contradicted appellant’s testimony on the trial, and under such circumstances in no event do we think the exclusion of this testimony would be reversible error.

The court in his charge submitted the issues of murder in the first and second degrees, manslaughter, and self-defense. In no part of the motion is complaint made of the charge of the court on murder in the first or second degree. There are several complaints that the court in his charge did not properly define “adequate cause” as applicable to the facts of this case. The court in this respect charged the jury: “By the expression ‘adequate cause’ is meant such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: An assault and battery by the deceased causing pain would be adequate cause, but you are further charged that all circumstances and conditions which are capable of creating and do create sudden passion in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection would ■be adequate cause, and, in the event that several of such circumstances or conditions should be found by you to exist, they should be taken together by you in determining whether adequate cause existed. In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause existed to reduce the state of mind referred to—that is, of anger, rage, sudden resentment or terror, sufficient to render it incapable of cool reflection—but also that such state of mind did actually exist at the time of the commission of the offense, and that it was produced by such adequate cause. Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation (if any) to consider in connection therewith all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this ease you will consider all the facts and circumstances in evidence in determining the condition of the defendant’s mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition.” This we think properly instructed the jury as to “adequate cause” under the evidence, and the complaints of these paragraphs of the court’s charge are without merit.

The court’s charge on self-defense was fair and peculiarly applicable to the facts in this case. The charge as given was a virtual copy of appellant’s charge No. 7 requested, and under such circumstances he would not be heard to complain, for, if error there be, the error was invited in requesting that this charge be given. Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 223.

The only other ground in the motion for new trial we deem it necessary to discuss is the one complaining of that portion of the charge which instructs the jury they cannot reach a verdict by lot or chance, etc. Appellant's contention is that the court should have instructed the jury, “If they found appellant guilty, they could not arrive at a Verdict by lot or chance,” etc., and by the omission of these words the charge as given was calculated to impress the jury with the belief that the court was of the opinion that appellant was guilty. It would have been, better if the court had used the words, “if the jury found appellant guilty,” in beginning this paragraph, but, when we read the charge as a whole, we do not think such a construction could have been placed by the jury on this paragraph. The court not only instructed the jury as to reasonable doubt generally, but also as to reasonable, doubt as between degrees of the offense, and the charge as a whole presents the case in a way that no part of it can be said to be on the weight to be given the testimony or any portion thereof, nor impress the jury that the court entertained any ' opinion in regard to his guilt or innocence.

The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    ROBBINS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.
    On Motion for Rehearing, April 23, 1913.)
    1. Criminal Daw (§ 923) — Disqualification of Juror—New Trial—Grounds.
    Where two jurors had expressed opinions as to the guilt of accused, and one of them had heard the testimony on a former trial, and both testified on their voir dire that they had not formed nor expressed an opinion, and had not heard anything about the case, and accused and his attorney were ignorant of the facts until after trial, a new trial must be granted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2225-2237; Dec. Dig. § 923.]
    2. Homicide (§ 300) — Self-Defense — INSTRUCTIONS.
    Where accused based his self-defense on the fact that decedent shot at him first with a shotgun, and that accused returned the shot and killed decedent, the relative strength of the parties and their character and disposition should not be submitted to the jury.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    3. Homicide (§ 116) — Self-Defense — Threats.
    Where accused, relying on self-defense, had been informed of the fact that his life had been threatened by decedent, and he acted on that information when firing the fatal shot, the jury must view the case from his standpoint, and not from the standpoint as to whether the threats were or were not made.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.]
    4. Homicide (§ 300) — Self-Defense — Instructions.
    The qualification of a charge on self-defense that accused could arm himself with a gun and go to his work or seek decedent to compromise any difficulty he had with him without impairing his right of self-defense, by adding, “but he would not have the right to go with his gun intending to harm deceased, and do any hostile act which would be calculated to provoke a difficulty with deceased;” defendant having the right to have a charge on his defensive matter unqualified by the state’s theory of the case.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    On Motion for Rehearing.
    5. Criminal Law (§ 1114) — Appeal — Record.
    The typewritten statement taken from the stenographic report of the evidence taken on a contest on hearing a motion for new trial not filed in the trial court during the term, nor in fact filed at all, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §,§ 2918, 2921; Dec. Dig.- § 1114.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Will Robbins was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    C. W. Kinard, of Houston, and W. C. Perry and H. S. Morehead, both of Franklin, 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'

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

   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree.

The motion for new trial is quite lengthy, urging many reasons why the judgment should be reversed. Attached to ' the motion for new trial are the affidavits of R. L. Walker, Tom Skains, Tom Kindriek, Ollie Russell, W. H. Willhelm, and J. R. Watson, showing in substance and in effect that the juror T. F. Lewis, one of the impaneled jurors who tried appellant, was in the courtroom at the previous January term of the court when appellant’s case was tried. What became of the case at the January term is not definitely shown; the indications are, however, that there was a hung jury. The case went over until the July term, and appellant was again tried and convicted. Erom that conviction this appeal is prosecuted. These affidavits show that Lewis was in the courtroom during the trial of the case at the January term, and heard the testimony of several, if not all, witnesses who testified. The affidavits mention several of the most important witnesses juror Lewis heard. By some of these affidavits it is shown that Lewis said that if he was in that “bunch,” referring to the jury, he would hang the defendant. This remark was made while the jury had under consideration appellant’s case at the January term of the court, and while the jury was passing along the street observed by Lewis and those who were present with him and heard the remark.

After the case was trial at the July term, on which jury the juror Lewis sat, it is shown by the affidavit of Kindriek that he saw Lewis standing in front of the window at Pete McCoy’s barber shop. The affiant was standing close by. Some one remarked that Will Robbins’ case was coming up, and Lewis stated: “Well, I'll go up and see what I -can do to him.” This was about the time court was called. This affiant was at the courtroom subsequently during the trial and saw Lewis on the jury and commented on it, and afterwards informed the .attorneys. The defendant makes an affidavit he knew nothing of these matters'until after his conviction. The attorneys in the case file their affidavits to the effect that they knew the two jurors, E. B. Lusk and T. E. Lewis;' that Lusk and Lewis served as jurors in the trial of the' case; that they nor either of them knew, or had ever heard from any source, that said jurors Lusk and Lewis, or either of them, were prejudiced against the defendant, and that they or either of them had formed or expressed an opinion as to the guilt or innocence of defendant; that they and each of them well remember the questions asked and propounded to said jurors and each of them, and that they also well remember the answers made by said jurors, and each of them, when they, the said jurors Lusk and Lewis, were on a voir dire examination; that upon said voir dire examination both Lusk and Lewis answered they had neither formed nor expressed an opinion as to the guilt or innocence of the defendant; that they had no bias for nor prejudice against the defendant; and that they nor either of them had ever heard anything about the ease of defendant. They further state that they believed, and relied upon the answers made by said jurors, and that it was only after defendant had been" tried and convicted that they learned that said jurors were biased and prejudiced against defendant, and that they and each of them had formed and expressed an opinion as to defendant’s'guilt; and that no person or persons had ever told or intimated to affiants or either of them of the prejudice of said jurors. Appellant made an affidavit to the same effect as did his attorneys. As to the juror Lusk, whose name has been mentioned, it is shown by the affidavit of J. E. Tamplin that he was personally acquainted with Lusk, and was on Lusk’s place in January, 1912; that he and affiant were coming to the town of Franklin in a buggy belonging to Lusk, and a conversation arose between them in regard to appellant’s case. It was while the grand jury was in session. Quoting his language: “We were coming down the red hill just the other side of cedar, and we were talking about the killing. I remarked I would not like to be in Will Robbins’ place, and E. B. Lusk said: ‘A man like that had no business running around among the people, and I would like to be on the jury and see how long I could send him up for.’ ” Affi-ant says he was in the courtroom part of the time during the trial of the defendant during the July term and saw Lusk on the jury. Quoting him again: “After this I told my folks, if they convicted Will Robbins, I was going to tell his attorneys, because I thought it was right; that E. B. Lusk did tell affiant the above, and since the last trial in July in the district court of Robertson county, and sinec the conviction I told the attorneys; and I voluntarily make this affidavit.” This motion is not in any w.ay contested. The jurors Lusk and Lewis were not called upon for a denial, or if they were they did not, so far as this record is concerned, make any denial. We cannot afford to let a conviction of this sort stand upon the verdict of such jurors as those whose names are mentioned. The accused is entitled to an impartial jury. Here we have two men sitting upon the jury, both of whom had expressed themselves as to the guilt of the defendant, and denied under oath that they had, and one of them sat in the courtroom and heard the testimony on the former trial, and Lewis on his voir dire examination denied ever having heard anything of the case. The adverse opinion of Lewis to appellant’s cause is shown by several affiants, and Lusk’s by one affiant.

There are numerous objections to the court’s charge, some off them it is well enough to notice in view of another trial. The court gave the following instruction: “If from the evidence you believe the defendant killed the said O. C. McPhearson, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him,” etc. It is urged as error that the court should not have limited the right of self-defense with reference to the character and relative strength of the parties and defendant’s knowledge of the character and disposition of the deceased. There was no evidence in the case as to the relative strength of the parties, and the character or reputation of the two men was not put in issue. The theory upon which appellant based his self-defense was that the deceased shot at him first with a shotgun before he, appellant, returned the shot. The relative strength of the parties and their character and disposition, etc., was not an issue in the ease, and it would make very little difference to appellant about the size or strength of his opponent, or his character and disposition, where the defensive theory was that he was shooting at him with a double-barrel shotgun. That the relative strength of the. parties and character and disposition might some time be a matter of importance may be conceded, but not in a case like this, and appellant’s defensive matter ought not to have been burdened with this matter.

The- twenty-sixth paragraph of the charge is criticised. This was given in reference to threats. The court charged the jury in-regard to threats as follows: “If you believe from the evidence that the deceased at or immediately preceding the time the shots were fired did some act which was reasonably calculated in view of all the circumstances of the case as they appeared to defendant, viewed from his standpoint, and no other, to produce in the mind of defendant the belief that the deceased was then about to execute a threat or threats made by him, the deceased, to take the life of the defendant, or to do him some serious bodily harm, if such a threat or threats was made, the defendant would be justified in acting upon such appearance of danger,” etc. The attack upon this phase of the charge is in regard to the limitation found in the expression “if such a threat or threats was made.” This clause in the charge should not have limited the law of threats. The testimony on behalf of appellant was to the effect from two sources that deceased had threatened his life. We have had occasion to reverse cases on charges of similar import under similar facts. The rule is if appellant was 'iniormed of the fact that his life had been threatened, and, acting upon that information, fired the fatal shot, it was not a matter for the jury to determine whether threats were made or not, nor was it for the court to say so. If appellant was informed of the fact, and acted upon it, the threats, so far as self-defense is concerned, should he viewed from his standpoint, and if he believed the threats were made, and acted upon them, the jury should view it from his standpoint, and not from the standpoint as to whether the threats were or were not made. It is unnecessary to cite the authorities. The question has been so often decided that it has become axiomatic.

The court gave the following charge, to which exception was reserved: “You are instructed in connection with the doctrine of self-defense that defendant would have the right to arm himself with a gun, and go to his work or to seek deceased, for the purpose of compromising any difficulty between them, if there was any difficulty or of demanding an explanation of deceased, and such conduct would not impair his right of self-defense, but he would not have the right to go with his gun intending to harm deceased, and do any hostile act which would be calculated to provoke a difficulty with deceased.” Exception was reserved to the qualification found in the latter part of the charge, to wit: “But he would not have the right to go with his gun intending to harm deceased,” etc. This qualification ought not to have been given. Appellant is entitled to an affirmative charge on his defensive matter unincumbered by qualifications which would deprive him of his right of self-defense. That the court should give the state’s side of the case is correct, but the state’s side of the case should be given, and the defendant’s side should be given untrammeled by the state’s view of it. This question has been often decided, and it is unnecessary to cite authorities to support it.

It is unnecessary to review the facts or give them in detail. It is sufficient to say that the facts were of such a nature as called for a charge upon the different issues presented by the court both for the state and the defendant. The trouble with the charge was the manner in which it was written and the restrictions and curtailments of appellant’s legal rights under the evidence.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

On a former day of the term the judgment herein was reversed and remanded on-matters growing out of errors in the charge; also the failure of the court to grant the motion for new trial on account of jurors Lusk and Lewis not being qualified to sit in the case. It is not the purpose of this opinion on rehearing to go into a discussion of the charges and the errors growing out of those phases of the record. We are of opinion the case was properly reversed in reference to those matters.

With reference to the two jurors, the record before us showed without controversy that the two jurors were not competent, and the showing made by defendant under the record before us was not controverted. We, therefore, held that under the showing made by the defendant the jurors ought not to have been permitted to sit in the case; that they had shown themselves thoroughly partial, having expressed opinions entirely contrary to their fairness as jurors.

The state has filed a motion for rehearing showing, in effect, that there was a contest in the trial court with reference to the two jurors mentioned and that evidence was introduced by the state controverting the testimony introduced by the defendant, thereby forming the issue. The testimony sent up and appended to the motion for rehearing by the state is in direct conflict with the testimony introduced by the defendant, and, had that testimony been before this court on appeal, it is not probable, at all so for as that question is concerned, the case would have been reversed. The showing made by the state now is the typewritten statement from the stenographic report of the evidence taken on the contest showing that the two jurors were not guilty of the conduct and use of the language imputed to them. The trial court had this evidence before him when he passed upon the motion, but it was not sent up in the transcript which was before this court, and in fact it seems not to have been filed in the trial court. Had the evidence taken by the state contesting the motion below been sent up so as to be considered by this court, that question may have been decided differently, and doubtless would have been. As the matter is presented, this court cannot consider this evidence because not filed in the court below during the term; in fact, was not there filed. Without further comment on this phase of the motion, we are of opinion that the state’s request to recall mandate and affirm the judgment cannot be granted.

The request to recall the mandate is refused, and the state’s motion for rehearing is overruled.


text:
    BOWMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.)
    1. Criminal Law (§ 369) — Evidence—Other Offense.
    Proof of other crimes, which is not offered to show intent, identity, or system, or which is not part of the res gestse, is not admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    2. Criminal Law (§ 369) — Evidence—Other Offense. '
    In a prosecution for burglary committed on April 28th, evidence that other burglaries were committed by accused, respectively, on January 7th, March 23d, and April 25th, was not admissible; there being no question of identity or intent in the present prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ed. Bowman was convicted of burglary, and appeals.
    Reversed and remanded.
    Dwyer & Chambers, of San Antonio, 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

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r In3exe3

   HARPER, J.

Appellant was prosecuted and convicted of bui-glary, and his punishment assessed at two years’ confinement in the penitentiary.

There are many questions raised in the motion for a new trial, but we do not deem it necessary to discuss each of them. The evidence shows that the store of W. A. Card-well was burglarized on the 28th day of April, 1912; that the door had been prized open with a tool that left an imprint on the wood — there being three impressions — there being a gap ip the instrument that made the impression. The safe in this store was blown open with dynamite, and the money contained therein taken therefrom. The evidence against appellant was wholly circumstantial ; but it may be said that it was sufficient to sustain the verdict, if there was no prejudicial error committed in the trial of the ease.

As the evidence clearly shows there was no question of intent in the case, the person who entered the store did so with the intent to commit and did commit theft is proven beyond question, and appellant raises no question that if he was the person who entered the store he did so with any innocent intent. In Branch’s work on Criminal Law (section 338) the rule is correctly stated as follows: “Defendant should be tried on the merits of each case, and proof of extraneous crimes which does not go to show intent, identity, or system, or which is not part of the res gestee, is not admissible, if it could only show that defendant was a criminal generally. Gilbraith v. State, 41 Tex. 567; Buck v. State, 47 Tex. Cr. R. 319, 83 S. W. 390; Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407; McIver v. State, 60 S. W. 51; Buck v. State, 38 S. W. 772; Kelley v. State, 18 Tex. App. 262; Bryan v. State, 49 Tex. Cr. R. 200, 91 S. W. 581; Nixon v. State, 31 Tex. Cr. R. 209, 20 S. W. 364; Williams v. State, 24 Tex. App. 412, 6 S. W. 318; Ivey v. State, 43 Tex. 425; Grant v. State, 42 Tex. Cr. R. 274, 58 S. W. 1026; Wilson v. State, 41 Tex. Cr. R. 118, 51 S. W. 916; Williamson v. State, 13 Tex. App. 518; Conley v. State, 21 Tex. App. 495, 1 S. W. 454; James v. State, 40 Tex. Cr. R. 194, 49 S. W. 401; Unsell v. State, 39 Tex. Cr. R. 330, 45 S. W. 1022; Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300; Owen v. State, 58 Tex. Cr. R. 261, 125 S. W. 405; Johnson v. State, 42 Tex. Cr. R. 440, 60 S. W. 667; Jordan v. State, 96 S. W. 35; Lightfoot v. State, 106 S. W. 345; Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; Marshall v. State, 22 S. W. 878; Schwen v. State, 37 Tex. Cr. R. 370, 35 S. W. 172; Neumann v. State, 58 Tex. Cr. R. 248, 125 S. W. 28; Holland v. State, 55 Tex. Cr. R. 29, 115 S. W. 48; Pace v. State, 58 Tex. Cr. R. 90, 124 S. W. 951; Chumley v. State, 20 Tex. App. 556; Woodard v. State, 51 S. W. 1122; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80; Latham v. State, 39 Tex. Cr. R. 472, 473, 46 S. W. 638; Riggins v. State, 42 Tex. Cr. R. 475, 60 S. W. 877; Dimry v. State, 41 Tex. Cr. R. 273, 53 S. W. 853; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Pridemore v. State, 59 Tex. Cr. R. 563, 129 S. W. 1113, 29 L. R. A. (N. S.) 858; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Cesure v. State, 1 Tex. App. 22. Proof of other offenses is not admissible to show system, intent, or identity, unless some of these matters are in issue. Denton v. State, 42 Tex. Cr. R. 429, 60 S. W. 670; Parker v. State, 75 S. W. 30; Glenn v. State, 76 S. W. 759; Bink v. State [48 Tex. Cr. R. 598], 89 S. W. 1076; Davenport v. State, 49 Tex. Cr. R. 11, 89 S. W. 1077; Barnett v. State, 50 Tex. Cr. R. 538, 99 S. W. 556; Herndon v. State, 50 Tex. Cr. R. 555, 99 S. W. 558; White v. State, 11 Tex. App. 479.”

In this case it is shown that the court admitted evidence that the store of H. Xaechel was burglarized on the 7th day of January (three months prior to the burglary in this case), that the store of L. T. Mumme was burglarized on March 23d, that the store of J. F. Homen was burglarized on April 25th, and evidence was introduced tending to show that appellant was guilty of these four separate and distinct offenses. It is evident, from the date of each of these offenses, that one could not be res gestse of the other. There was no question of identity in the case, and no issue of lack of guilty intent, if appellant entered the house. The other three burglaries would not add any additional strength to the force of the testimony showing his guilt of the offense for which he was on trial. While Mumme’s and Homen’s houses were apparently burglarized in the same way as Cardwell’s house, yet testimony would not be admissible to show that he was guilty of three burglaries, when he was on trial for only one, and when the evidence would serve no useful purpose in showing whether or not he was guilty of the offense for which he was then on trial; and it was error to admit evidence of these offenses, and appellant’s probable connection therewith. Again, if the testimony had been properly admitted, in his charge the court did not properly instruct the jury for what purposes this testimony would have been admissible, nor limit tbeir. consideration of it to tbe sole purpose for which it could have been admitted.

Because of the error of the court in admitting testimony as to the burglary of these other stores, this judgment is reversed, and the cause is remanded.


author: PRENDERGAST, J.

text:
    HYSAW v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    Rehearing Denied April 23, 1913.)
    1. Homicide (§ 307) — Aggravated Assault —Evidence.
    Where defendant stabbed deceased in the stomach only once with an ordinary pocket knife and there was no testimony showing directly that it was a deadly weapon, defendant having testified that he had no idea of killing deceased, but, being greatly frightened at the way deceased came at him, stuck him once with the knife in order to defend himself, it was error to refuse to charge on aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 188)— Self-Defense — Reputation — Manner of Proof.
    While, ordinarily, proof that deceased was a violent and dangerous man must be by showing his general reputation, yet, when self-defense is in issue, evidence of specific acts of violence by deceased communicated to defendant and showing that deceased was a violent and dangerous- man is admissible, and, such specific acts being proved, the state, on cross-examination, may inquire as to the particulars of the specific acts to show that deceased was justified or to rebut defendant’s theory that such acts show deceased to have been a violent and dangerous person.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    3. Homicide (§ 193) — Evidence — Materiality.
    In a prosecution for homicide, evidence that deceased had been previously seen to carry a pistol, but not on the day or at the time of the alleged homicide, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 416; Dec. Dig. § 193.]
    4. Witnesses (§ 246) — Examination by Court.
    Where accused in a prosecution for- homicide did not attempt to show that deceased had the general reputation of being a violent and dangerous man, it was improper for the court of his own motion-to ask witness questions to prove or disprove that fact.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.]
    5. Criminal Law (§ 720) — Credibility of Witness — Argument to Jury.
    Where the credibility of a witness is to be passed on by the jury, the prosecuting attorney may discuss his testimony and argue to the jury that it was false.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    6. Criminal Law (§ 829) — Instructions— Reasonable Doubt.
    A requested charge that the law contemplates the concurrence of 12 minds before a conviction can be had, that each individual juror must be satisfied beyond a reasonable doubt of defendant’s guilt before he can consent to. a verdict of. guilty, that each juror should feel the responsibility resting on him and realize that his own mind must be convinced beyond a reasonable doubt of defendant’s guilt before he can consent to a verdict of guilt, so that if any individual juror, after having considered all the evidence and consulted 'with his fellow jurors, should entertain a reasonable doubt of defendant’s guilt, it was his duty not to surrender his convictions merely because the balance of the jury entertain different convictions, was properly refused; it being sufficient that the court’s charge on reasonable doubt was in substantial conformity to the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Caldwell County; F. S. Roberts, Judge.
    Searcy Hysaw was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    E. B. Coopwood and O. Ellis, Jr., both of Lockhart, 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

   PRENDERGAST, J.

Upon a charge of murder appellant was convicted of manslaughter, from which he appeals.

It is unnecessary to give a statement of the evidence. In our opinion it raised the issue and was clearly sufficient to sustain a conviction for manslaughter.

For a long time before the evening of the killing appellant and deceased had known one another and they were friends. At least, no trouble was ever shown to have existed theretofore between them. Appellant, a short time before the killing, had borrowed a dollar and a half from deceased, promising to pay it on the day of the killing, which was Christmas day, 1911. On the evening of that day they met in a saloon. Deceased demanded the money from appellant, and trouble arose between them. There were more or less harsh words and temper displayed by both of them on this occasion. They separated, or were separated by the intervention of friends. Deceased went out the back door and appellant fhe front door of the saloon. Shortly afterwards they met on the street, when the trouble was renewed and the killing resulted.

From the state’s standpoint and evidence appellant was the aggressor, and the testimony was sufficient to have established murder or at least manslaughter. From appellant’s standpoint and his testimony, self-defense was raised. The court charged thereon, as well as murder in the first and second degrees and manslaughter. The court refused to charge on aggravated assault, although a special charge was requested on that subject by appellant, and proper complaint is made of the charge of the court, because of his failure and refusal to submit aggravated assault.

The knife with which the killing oc-eurred was produced, identified, and introduced in evidence, or, at least, displayed and exhibited to the jury. The testimony all shows that it was only an ordinary pocket knife. No testimony was introduced directly showing that it was a deadly weapon. The appellant stabbed deceased in the stomach only one time. Appellant testified: “I did not try to cut him but the one time. I could have cut him all to pieces. I did not intend to kill him. I cut him to keep him from hurting me. I had no idea of killing him.” The appellant further testified that, when he first saw deceased after they went out of the saloon, deceased was coming towards him, cursing, and that it scared him nearly to death; that he cut him with just a medium pocket knife and only once; that he did not know when he got the knife out; that he was scared to death. In our opinion, with the testimony as shown by this record, aggravated assault and battery was raised, and it was reversible error for the court to refuse to submit that question to the jury. It is true the stab was in a vital part of the body and proved fatal. This would not necessarily exclude aggravated assault, and especially in view of the fact that appellant claimed he was so badly scared, and the knife used was not necessarily a deadly weapon, and the manner of its use was not necessarily such as to exclude the idea that appellant did not intend to kill the deceased. So that, as stated above, in our opinion the evidence raised, and the court should have submitted, a proper charge on aggravated assault. For a collation' of the authorities, see section 434, Branch’s Crim. Law.

Ordinarily proof that the deceased was a violent and dangerous man must be made by showing that that was his general reputation. Heffington v. State, 41 Tex. Cr. R. 319, 54 S. W. 755; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512; Poole v. State, 45 Tex. Cr. R. 362, 76 S. W. 565; Darter v. State, 39 Tex. Cr. R. 44, 44 S. W. 850. However, when self-defense is an issue and it is necessary to show the state of mind of the appellant at the time of the commission of the offense specific acts of violence of the deceased, which are then known to appellant or have been communicated to him, which show, or tend to show, he was a violent and dangerous man, etc., may be shown for the purpose of showing that he acted in self-defense based on this information and knowledge to him of the character of the deceased, and to show his state of mind at the time. See section 473, Branch’s Crim. Law, where these rules are stated and authorities establishing them are collated. However, such proof of specific acts of violence by the deceased cannot be shown by the appellant, unless he knew, or was informed thereof, prior to the commission of the offense. Where he testifies on the trial that he knew or had this information, then he will be permitted to go further and prove by others, who know the facts, the said specific acts of violence without going into the details thereof. But he cannot introduce hearsay on that subject. In the event he shows that he had such knowledge or information, and testifies to such specific acts of violence, then introduces testimony by persons who know the facts and testify to such specific acts, the state, in cross-examination of such witnesses, should be permitted to go into the particulars of the specific acts for the purpose of showing that the deceased was justifiable, or rebut defendant’s theory that such acts show him to have been a violent and dangerous person, etc.

It is unnecessary to take up and discuss or decide each of appellant’s bills of exceptions along this line. Upon another trial of the case, what we have said is sufficient to govern the lower court in the admission and exclusion of evidence on this point.

The court did not err in excluding the testimony of Austin Henderson wherein appellant sought to prove by him that he saw deceased at one time carrying a pistol. That the deceased was seen to carry a pistol at one time, which was not on the day or at the time of the alleged commission of this offense, would not be admissible; but proof that he habitually carried a pistol, if such were a fact, might be admissible. Lilly v. State, 20 Tex. App. 9; Glenewinkel v. State, 61 S. W. 123; Branch v. State, 15 Tex. App. 101. Especially would this be the case if appellant should show that he knew deceased was in the habit of carrying concealed weapons.

As appellant, who alone had the right to do so, did not attempt to show that the deceased had the general reputation of being a violent and dangerous man, it was improper for the court of his own motion to ask the witness Henderson questions seeking to prove or disprove that fact. We think that where the appellant puts the reputation of the deceased in issue on this subject by evidence either of his general reputation to that effect, or by specific acts showing it, then it would be proper for the state to rebut this by showing that his reputation in this respect was not as attempted to be shown by such evidence, but his character was that of a peaceable, quiet, and law-abiding man.

While prosecuting attorneys should observe the rules of propriety in cross-examining witnesses wh.ere they believe they are giving false testimony, yet appellant’s bills in this case, claiming that the court should not have permitted the district attorney to ask and say what he did with reference to the witness Lee Moore, as qualified by the court, show no error; for the court states that the demeanor and answer of the witness justified the conduct of the district attorney. Certainly, if the witness’ credibility is to be passed upon by the jury, the prosecuting officer has the unquestioned right to discuss Ms testimony,-and argue before tiie jury that it is false.

■ It is useless to discuss appellant’s bills wherein he complains of the action of the court in imposing a fine upon his attorney for the manner in which he attempted to ask questions that had been prohibited by the court, for they doubtless will not occur upon another trial.

The court did not err in refusing to give this charge requested by appellant: “Upon the trial of a criminal case by a jury the law contemplates the concurrence of twelve minds in the conclusion of guilt before conviction can be had. Each individual juror must be satisfied beyond a reasonable doubt of the defendant’s guilt before He can, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the jury and should realize that his own mind must be convinced beyond a reasonable doubt of the defendant’s guilt before he can consent to a verdict of guilty. Therefore, if any individual member of the jury, after having duly considered all the evidence in the case and after consultation with his fellow jurors, should entertain such reasonable doubt of the defendant’s guilt as is set forth in their instructions in this case, it is his duty not to surrender Ms own convictions simply because the balance of the jury entertain different convictions.” It is never proper to give such a charge in any case. It has uniformly been held by this court that it is sufficient for the court to charge the reasonable doubt in substantial conformity to the language of the statute.

Outside of giving a proper charge on aggravated assault, no other charge requested by appellant and refused by the court should have been given.

There are no other questions raised which require any discussion or decision on our part.

For the error pointed out the judgment is reversed and the cause remanded.


author: PRENDER.GAST, J.

text:
    ALSBROOK v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Appeal from Dallas County Court, at Law; W. F. WMtehurst, Judge.
    Corbett Alsbrook was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    Walker & Williams, of Dallas, for appellant. C. E. Lane, Asst. Átty. Gen., for the State.
   PRENDER.GAST, J.

Appellant was convicted under articles 496 and 500, P. 0., for keeping a disorderly house, and Ms puMshment assessed at a fine of $200 and 20 days in jail.

Article 496 on this subject is: “A ‘disorderly house’ is * * * any house in which spirituous, vinous or malt liquors are sold or kept for sale, without first having obtained a license under the laws of tMs state to retail such liquors.” Article 500 on this subject is: “Any person who shall, directly * * * keep or be concerned in keeping, or aid or assist or abet in keeping, * * * a disorderly house, in any house, building, edifice or tenement, * * * shall be deemed guilty of keeping, * * * a disorderly house, * * » and punished by a fine of $200, and by confinement in the county jail for 20 days for each day he shall keep, or be concerned in keeping * * * such disorderly house.”

The uncontradicted evidence in this case overwhelmingly establishes without doubt that appellant did keep such house in a certain house in the city of Dallas, Tex., and had no license therefor. It is unnecessary to give the evidence. The court in an apt, full, and fair charge submitted everything that the evidence raised, and the jury could not have done otherwise than convict appellant, if they were governed by the law and evidence. None of appellant’s special charges, other than the ones the court did give, should have been given, and the court properly refused to give them. The count of the complaint and information under which appellant was charged, and which the court submitted, and under which he was convicted, clearly follows the law and the approved forms, and is unquestionably sufficient.

There being no other question calling for any discussion, the judgment is affirmed.


text:
    BOGUE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.
    Rehearing Denied April 23, 1913.)
    1. Homicide (§ 166) — Tbiai>-Evidence.
    In a prosecution for homicide testimony that the witness had a talk with defendant after the killing about a note upon which the witness was defendant’s, surety, and that the defendant told the witness that he had made settlement with his father, the payee, who had promised him that if he would kill deceased he would give accused the note and pay all the costs in the case, is all admissible; the entire conversation being necessary to explain the reason accused gave for killing deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    2. Witnesses (§ 350) — Impeachment.
    The state may impeach one of accused’s witnesses by showing, on cross-examination, that she had been convicted of the offense of running a disorderly house; the offense being one involving moral turpitude.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]

      3. Witnesses (§ 405)—Impeachment—Imma-terial Facts.
    A witness cannot be impeached upon immaterial matters, such as whether he had in his possession a pistol at a given time.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 405.]
    4. Homicide (§. 198)—Trial^-Evidence.
    In a prosecution for homicide, where there was a question as to whether or not deceased was a trespasser on accused’s premises, testimony that the witness heard accused authorize deceased to pick cotton on his premises is admissible.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 423; Dec. Dig. § 198.]
    5. Criminal Law (§ 1090)—Appeal—Ques-tions Presented for Review —Bills of Exception.
    Grounds in a motion for new trial as to the argument of the prosecutor cannot be considered, where not verified by any bills of exception.
    TEd. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    6. Criminal Law (§ 1037)—Appeal-Ques-tions Presented for Review — Special Charges.
    Objections to argument of prosecuting attorney cannot be considered where there was no special charge requested thereon.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.
    Sam Bogue was convicted of manslaughter, and he appeals.
    Affirmed.
    T. R. Yantis, of Canton, and Wynne, Wynne -& Gilmore, of Wills Point, 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

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

   HARPER, J.

Appellant when tried was convicted of manslaughter, and his punishment assessed at four years’ confinement in the penitentiary.

Without detailing the testimony, it is sufficient to say that the testimony offered in behalf of the state would support a verdict for even a higher grade of the offense; while the testimony offered in behalf of appellant would show that he was justifiable in slaying his father-in-law, L. J. Kinard. Under such circumstances we merely review the record to see if the court committed any error in the trial of the case.

The first bill complains of the testimony of John Goode in certain respects. This witness testified that shortly before the trial he had a conversation with appellant, which is detailed as follows: “I had a talk since that with defendant dpwn at Dennis Easley’s cow pen, I think probably the latter part of April, or it might have been in May; I would not be positive as to the date. That conversation started about this note that I was on, and the paying of that note, which has not been paid up to this time. Old man Bogue was suing me on it at that time, he told me, on this same note. I was asking Sam was he. going to let me pay that note, and he said: ‘No; I have done made settlement with old Dick on that.’ Old Dick was his daddy. He said: ‘He promised if I would kill Kinard to give me that note and pay all the costs in the case, and the old son of a bitch now wants me to pay the lawyer fees, and I will kill him before I will do it.’ (That was old Dick.)” Appellant objected to that part of the statement about old man Bogue suing him on the note. When we read the entire statement, it is seen that all of it was clearly admissible to render intelligible that part relating to the reason that witness said appellant gave as a reason why he killed deceased; that is, his father had agreed not to collect the note if he would kill Kinard. And the remark of th'é court, when the objection was made, could not have been hurtful to defendant, and was not upon the weight to be given the testimony.

It was permissible for the state to prove by the wife of deceased that she had been convicted of the offense of running a disorderly house. She had been introduced to prove material facts in behalf of the defendant, and this testimony was admissible as affecting her credit as a witness. The offense was one involving moral, turpitude.

It was immaterial whether or not the witness John Goode had a pistol on the day prior to the homicide, and he could not be impeached on this immaterial matter; therefore the court did not err in excluding the testimony of the witnesses Seals and Loper on this issue.

As to the question of whether or not deceased was a trespasser on the premises of appellant, the court did not err in permitting the witness Martin to testify that he heard appellant, two days prior to the homicide, state that he had authorized deceased and others to pick this cotton and apply it to the payment of the debt of appellant, for which they were bound as sureties.

The complaints in the motion for new trial in regard to the argument of the prosecuting officer cannot be considered, as they are not verified by any bills of exception; nor was there any special charge requested in regard thereto.

The charge of the court was a fair presentation of every issue in the. ease. The evidence offered in behalf of the state amply supports the verdict, and there is no matter in the motion for a new trial which could or should call for a reversal of the case.

The judgment is affirmed.