Barnett v. State

v y. 555 State. 1916.1 44, 39 to on document, copied pages had before us the said we there cor- to be shown inclusive, failed record, and what is of the rehearing in his motion for However, appellant stated us. rectly 126, inclusive, said our fact that pages calls attention stating heading the proper in bill No. 2 with document is his copied charge read his time to the judge prior was presented corrected therein, "thereupon judge It is further stated the jury. objection same to said but refused to conform in chárge part, record, to of the filed as a made,” objections and ordered said bill and ordered The judge approved which he etc. excepted, overlooked This bill was officially. thereto filed, and name signed the docu- did about stated we us when we what the connection cheerfully, make We this correction ment, as shown on 44. pages that appellant’s to show tendency otherwise might because ha.ve Everyone matter. a material in the trial attorneys court omitted are dili- them, this court knows especially, who knows cor- every clients and in taking precaution gent representing think committed errors they whatever rectly present preserve call attention failed to in the trial we regret court. We in the original opinion. objection noticed, fully every we considered however, will be requested special charge that was made court’s every refused, original opinion. as shown which was is overruled. The motion for rehearing

Overruled. R. P. Barnett State. 31,

No. 3481. Decided March 1915.

Rehearing May denied 1915. 1.—Murder—Indictment. murder, Where, upon trial of indictment approved precedent, followed same was sufficient. 2. —Same—Change of Court. Venue—Discretion murder, Where, upon trial change the motion for a of venue was on ground prejudice dangerous defendant and a combination of persons, State, influential which controverted affidavits knowledge means compurgators, controverted of the trial judge discretion, evidence, motion, error, heard overruled the was no although the conflicting. Davidson, Judge, dissenting. evidence was Stated—Change 3. —Same—Rule Venue—Judicial Discretion. discretion, clear judicial Unless court abused his trial refusing

his action change not require Following venue will reversal. 55 Texas Crim. Tubb v. and other cases. —Same—Change Venue—Insufficiency Evidence—Practice Appeal. Where, appeal murder, from a conviction of claimed venue, changed court, court should have after a careful in- Reports. Criminal record, justified not believe does itself speetion of view action evidence, court, conflicting in reversing trial the judgment on the grant change Davidson, of the trial venue. Judge, failure dis- senting. —Same—Special Venire—Jury Jury 5. Law. showed, exception qualified by Where the hills of as the court, trial called, special veniremen were at.the time the names of the court declined had, postpone to did case until their attendance could be that when examined, peremptory return the defendant a number of accepted any challenge, last challenges juror without left and that upon objectionable juror, there was juror was forced defendant as no reversible no error. Jury. of —Same—Directory Statutes—Formation 6. regard to the of the statutes with the settled law this State capital directory, mandatory, cases formation of any reversible complained irregularities byof defendant not show did where State," 21 Texas error, Murray correctly Following them. the court App., overruled cases. and other Grim. —Same—Challenge for Cause. 7. exception challenge for of cause overruling bills to the of Where error, veniremen, qualified did not show by the court of for several error. no reversible there was of Inducement. 8.—Same—Evidence—Motive—Ill-will—Matters murder, Where, jury could have neither the court nor the upon of trial case, killing, the immediate bearing upon and the understood facts properly deceased, being informed intent of defendant and the without motives and and deceased and contract defendant to a certain rental between respect with the various in no error execution, arose there matters that out of in its reference this matter. admitting testimony with —Same—Evidence—Map—Measurements. 9. murder, the the Upon admitting trial of there error in was no ground out to the various witnesses on pointed wife of the deceased etc., made measurements parties, witnesses location of from which the Following map, Weaver used in the trial. drew which was for illustration State, Texas Crim. and other cases. 10.—Same—Evidence—Cross-examination. (cid:127) murder, exceptions to Where,-upon appeal from bill of a conviction of the- error, of defendant and showed cross-examination his witnesses correctly same was overruled. —Same—Self-defense—Charge Court—Evidence. of 11. Where, murder, upon threats trial of the defendant introduced evidence of also, the court him and his properly directed wife deceased based on threats his wife defendant’s self-defense and defense submitted of statute, general char- under such circumstances under the terms of the dangerous man not he violent acter of deceased to whether or was a disposition clearly admissible. and inoffensive a man of. kind Reputation. 13.—Same—Rebuttal—Evidence—General Where, murder, tending to upon trial of the defendant introduced evidence difficulties, by de and threats engaged prior show ceased, deceased error in permitting there was no introduce evidence State to general reputation deceased’s the time of these in rebuttal. during difficulties Following Bullock v. 73 Texas Crim. 419. 1915.] v. The State. Babkett —Same—Evidence—Impeachment Testimony. 13. defendant, deceased, brought Where cross-examination wife her denial and showed certain statements violent out her husband was dis- so, done position permitting no error in she had impeach testimony, tending to rebut this introduce evidence State and to witnesses. defendant’s Court—Manslaughter—Remodeling Charge. —Same—Charge

14. Where, murder, upon manslaughter upon trial of the issue raised charged, attorneys which the defendant, and submitted same upon objection charge subject, favorable to on that remodelled defendant, gave also requested charges all of which were defendant, there reversible was no error. —Same—Self-defense—Charge of Court. Where, murder, only trial of submitted the court theory killing defendant’s and also in defense of defendant’s wife self-defense, evidence, which was authorized contention the defendant’s error, charged that the court on presented should not have self-defense no self-defense, even if the evidence had not as a favorable charge such was raised State, 394, and Following defendant. v. Texas Crim. Jones other eases. 16.—-Same—Evidence—Stock Raw. murder, Upon trial there permitting of was no error in the State to intro- testimony duce in the the prosecution prohibiting stock running large that law from at mules force, county of the adopted and was in and sub- thereon, proper charge mitting a the showing evidence that deceased the of the the mules were the trespassing defendant latter had that Davidson, leased land of the and that them, possession impounding taken them under of of the law the attempting defendant in them force the recover killed deceased. dissenting; Judge, —Same—Charge 17. of Court—Defense of Another. murder, Upon trial the difficulty grow of where evidence the showed that upon out of the crops the of the trespassing fact mules defendant were which he the upon the growing of deceased from defend- land had leased the ant, defendant, there testimony attempt was wife, in the of forcibly mules, his son premises take or drive from said the leased hoe, which the objected, deceased the latter a had struck wife with defendant’s properly requested court right the a instructed as defendant had deceased, to defend his to said stock law which wife from said claimed assault reference without force was in at the time. —Same—Requested Charges—Charge 18. of Court. the properly requested charges Where certain the refused of defend-

ant, were the charge, others covered no error. main there was court’s —Same—Change Venue—Dangerous of Combination of 19. Influential Persons. Where, murder, upon change trial of defendant his motion for of venue grounds change as one persons the contended for a of of venue the combination of trial, preventing influential defendant getting from fair a evidence particular outside of one locality county prosecution showed that there of the little, defendant, very any, if com- prejudice was or such persons bination of prevent getting influential "would from the defendant trial, fair impartial Following Early there was no error. reversible State, Davidson, dissenting. Judge, Crim. 47 Texas and other cases. 80.—Same—Evidence—Reputation of Deceased. Where, murder, upon trial of correctly testimony the court admitted reputation citizen peaceable law-abiding was that deceased of a Reports. {May, Texas Criminal Davidson, general reputation, no showing there was reversible error. dissenting. Judge, Stated—Reputation of Deceased.

21. —Same—Rule murder, Where, upon trial attempted prove defendant that deceased Oklahoma, etc., had trouble with his father-in-law in that he threats had made defendant, etc., against introduce evidence permitting no error State to general reputation peaceable deceased as citizen; law-abiding although the examination reference the witnesses with irregular. Following Menefee 50 Texas Crim. thereto Rep., somewhat and other cases. —Same—Evidence—Tenant—Cropper. murder, where Upon trial showed that evidence tenant, shares, simply cropper on error in and not there was no defendant’s pre- permitting introduce to show that law State to stock county venting running large prose- was in force mules from mules, cution, attempting impound and that defendant’s while deceased attempting trespassing crops, forcibly which deceased’s the defendant in error latter, from to take mules and there was the deceased killed Davidson, Judge, jury. issue submitting court’s dissenting. Stated—Tenant—Cropper. 23. —Same—Rule pays crop rent does not make The fact one in itself leaseholder, cropper, tenant or where one labors in and not a crop, pays given portion crop the owner owns same land, he is not possession use a preventing the land as for the of said rent land has tenant, under law protection has the stock cropper, but a Davidson, dissenting. Judge, crop. trespassing mules from on his Law—Case Stated—Homestead.

24. —Same—Stock murder, Where, upon the evidence showed trial deceased had making a crop; the the defendant land rented force, large from preventing running mules stock law crop, forcibly take trespassing attempted on and defendant same were deceased, trespasser, possession he was law mules from said time, penned this, although the mules at and had him, in his inclosure when defendant shot or that leased them Davidson, dissenting. Judge, of defendant’s homestead. land was Another—Charge of Court. 85.—Same—Self-defense—Defense murder, Where, evidence upon trial of raised issue self-defense another, wit, wife, defense defendant’s court submitted and proper also issues, evidence, applying the law was no charges on these Davidson, Judge, dissenting. error. reversible Opinion. —Same—Stating Facts 26. language original opinion of some in the the criticism used Where himself, right upon the issue of to defend his wife defendant’s immaterial no error. there was —Same—Self-defense—Charge Court. 27. rehearing submitting is that the trial court erred the motion for Where self-defense, right independent of his to in question the defend the deceased, wife but the against an assault made evidence raised, there no revers- issue of that the record showed self-defense Davidson, Judge, dissenting. ible error. Hunt. Tried below before from District Court

Appeal Pierson. Hon. Wm. . 559 v. The State.

1915.] im- murder; twenty-five conviction of Appeal years penalty, prisonment the penitentiary. The states case. Harrell, Sam D. Stinson Hamilton & Grosby, appellant. State, On of deceased: Brownlee 13 v. question general reputation State, 255;

Texas Crim. State, v. Holsey id., 35; 24 Williams v. App., 160; id., 102; id., 138; State, id., 14 Rhea v. 37 Childers v. 30 State, id., State, 560; v. 34 Texas Menefee v. 50 State, Crim. Phipps Rep., id., v. 249; State, State, 18; 54 Smith id., 588; Shelton Jirou 53 v. v. State, 398; 73 id., 628; State, 55 Cannon 59 Bullock v. id., v. 419, Texas Crim. 196. 165 S. W. Rep., Rep., Garrett, on stock 70

On of court’s law: v. question Webb v. S. W. 881; S. 992; Toney, 35 W. Rep., Tignor Rep., Horseley v. S. Moss, 341; Rogers Bros., Rep., 5 Texas Frazier 108 W. Civ. v. App., Co., 150 S. W. 727; Bingham, Rep., 602; Railway v. Ellis v. Duke 126 S. W. 1195. Rep., McDonald, General, Assistant and Clark & Leddy, G. Attorney G. v. of tenant and Railroad Co.

for the State. cropper: On v. 570; Ricks, 10; Texas, C., Taylor Harrison v. 71 N. Bayliss, 62 N. Donahoe, 1099; Hansen, Rep., Hansen v. 129 W. Rep., N. W. Miles, 39; Bingham, Antone 105 S. Ellis 982; W. 651; Ency. Am. of Law 602; Eng. (2nd ed.), Cyc.,

S. & W. 1471. Presiding Judge. indicted, tried

PRENDERGAST, Appellant the murder of Harrison to have been Choat, alleged and convicted for 9, The on June 1914. indictment was preferred July committed 1914. The indictment in the form follows statute. approved submitting many grounds. a motion to quash made Appellant the indictment in his urge the case did insufficiency authority. does not or cite We deem argue brief he the question did not err state The unnecessary objections. the various at twenty-five motion. Ms fixed overruling penalty years penitentiary. occurred on June was arrested killing Appellant Hunt District at once. There are two Courts jail placed is judge, Pierson County,—one, Eighth, Judge presiding of which the presiding which Judge Dehoney other Sixty-second, in session, Sixty-second District Court was Eighth judge. Judge 30th There no then in session. On June grand was. a grand jury order for the summons of entered Dehoney proper duly the latter organized grand 2nd. On date July convene 9th, later, on July and one week investigated case, jury. They entered herein. On' 10th the court preferred indictment July order to veniremen have summoned special properly persons for set case trial for 20th. On the latter July case and try Reports. 76 Texas Criminal date a appellant made motion a continuance which was granted. Thereupon Judge transferred the from Dehoney case the Sixty-second to the Eighth District. Soon thereafter out a appellant sued habeas bail, who, before corpus Pierson, evidence, after Judge hearing bail; denied this appellant appealed, 14, 1914, on October held he was entitled to bail fixed his bond $7500. (Ex parte Barnett, 74 Texas Crim. 136, 169 S. He W. 1165.) gave bond atwas trial, thereunder until liberty which occurred ¡November, 1914, the verdict November 20th. being rendered 1. At the time the trial motion proper before made a change the venue P., based on art. 628.) both statutory C. grounds. (C. His affidavit therefor was number supported large the affidavit of a of others. The statute, affidavits were but follow very brief were the effect that there a great existed Hunt so County preju- against dice defendant can not a impartial obtain fair and trial in said And county. that there against combination dangerous him, instituted by influential reason of which he can persons, by ¡No expect fair trial. fact or facts are upon they predi- given their cate affidavits. The State This controverted affidavits. appellant’s application and affidavit controverting attorney, and sworn the district signed the county attorney, Mr. who Leddy, was specially employed prose- cute, and three other citizens. ground denied each They specifically motion. addition, compur- swore the said gators defendant have not sufficient with knowledge acquaintance the people throughout county with con- said reference the matters tained their said affidavits and have not information with sufficient reference to the matters in statement as to motion, said justify that a prejudice defendant, exists said dan- county against gerous combination of influential therein that exist persons prevent county; trial fair and in said obtaining impartial that each with all said unacquainted were compurgators wholly feelings said relation and conditions of sentiment in county case, suffi- County none of them been over Hunt to form are mistaken a correct idea reference thereto and ciently with all with reference to contained in their said matters set up affidavits. That miles county forty square; therein, more large were than 6000 of whom qualified majority jurors case no knew with reference to the facts of the and have nothing preju- defendant; whatever that- homicide was dice the scene southeast corner that the county; remaining por- extreme with therefrom, jurors tions were remote settled thickly qualified with communication with said portion county that a citizens were not portions majority frequent; large only the facts of said actual county knowledge of had in to the case regard information number of large jurors there are hundreds of hearsay was based rumor as to the or inno- guilt have no whatever who qualified jurors v. The State. 1915.1 excitement no great

cence of that said ease created defendant; homicide in which the community outside of the immediate county occurred. venue that a 628, change

The statute C. prescribes C. (art. P.) supported of the defendant be may granted written application residents by his two credible persons, own the affidavits of least truth causes, for either of the "the county, following suffi- exists That of which the shall there ciency court determine”: (1) a not obtain so him that he can county great prejudice against combination fair and dangerous trial. That is a impartial (2) reason of which him instigated by influential persons can fair trial. expect making Article 633 the persons prescribes credibility affidavit be knowledge,” change may for venue means "or their attacked thus formed the affidavit and the issue credible person, shall be tried and determined and the judge application granted or refused as the shall law the facts warrant. at

We district think it affidavit clear controverting means torney, stated, county attorney, and others above did attack of knowledge of unquestionably compurgators, raised the issue and determined says which the statute “shall he tried 'by So the issue was judge.” that appellant’s contention properly raised so as is not well to introduce evidence require taken. State, Lemons v. Crim. 59 Texas Rep., 2. The court heard the on said motion thereupon evidence change venue. A number witnesses on both sides large testified and, usually case, appel- support would testimony lant’s contention, it. while the of others contradict There is a statement very of facts in It is the bill of all evidence. voluminous. haveWe read and considered it all. see no neces- 'We sity it, copying extent. stating Mr. Branch, in Law, his Criminal section states rule the correct and cites several cases so thus: “Unless it is clear holding, court trial has abused his discretion, action in judicial refusing State, change venue will not a reversal. Tubb v. 55 Texas require Crim. Texas 858; S. W. Bohannon v. State, Crim. 271; State, v. v. App., 254; Cox 8 Texas Crim. Grissom App., State, 8 Texas 386; State, Crim. App., Clampett v. Crim. 27; State, Martin App., 1; State, 21 Texas Crim. Magee v. App., 14 Texas Crim. 366; 613; State, 2 Texas App., Dupree App., Crim. 598; State, Noland v. 3 Texas Crim. Grissom v. 4 Texas App., Crim. 374.” App., As said court, through Bamsejr, in the Judge ease, supra: Tubb “Of to a respect of this kind much be necessity ought case, left to the discretion and sound of the court judgment trying and in no case should the of conviction set judgment aside on account trial of the action of the refusing of venue change

Yol. 76 Crim.-36. Repobts. Texas Okiminax 76 that court has his discretion.

unless such abused This is clear laid in terms down almost the stated precise the doctrine above by in 331,” citing Hurt the case of Gaines v. S. W. Judge Mr. above, some cases others. by of the cited Branch in bill exceptions, trial of all judge, approving containing The venue, for heard on the motion of change evidence did so with following explanation: this of men

“In case venire summoned to this case. try But members of venire were examined. Out this eighty-five of account of number their condition and discharged two were physical themselves that conscientious stating fifteen disqualified they crime, infliction of death in as a for scruples regard punishment veniremen whose sixty-eight were tested making only qualifications Out this twenty-six order to secure this case. of number jury were court cause. State excused After the challenged the next challenges, and the defendant had exhausted peremptory McCombs, the chosen, challenged J. M. last juror, juror cause, said he had formed as juror opinion whatever stating of defendant. stated juror or innocence who guilt Every as to innocence of the guilt he had whatever any opinion Therefore, objection- defendant was excused a single court. able was forced defendant. juror upon case but member of try

“Of the selected this one lives south jury line, line drawn from the east line of Hunt west County pass- Greenville, the extreme occurred ing through killing having Quinlan in southeast and this lived near juror county portion from where the homicide occurred different justice precinct had not heard the facts of the stated his examination case and had no whatever as to the innocence guilt discussed of selected to case two lived jurors the defendant. Of try about ten Celeste, north of a town situated miles north of Greenville Two lived in the about miles Lone Oak. of thirty jurors thirty about ten miles from Greenville community, Whiterock and about Two of them lived commu- miles from Lone Oak. in the Commerce Greenville, of miles northeast of and four members nity twenty about Greenville, testified in the three these City lived jury defendant with the father and were they acquainted for some time. One lived near about City, known them Wolfe juror about miles from Lone Oak. forty miles north of Greenville twenty exami- case indicated from their try All of the jurors accepted and unbiased fair, impartial Lone Oak jurors.” nation they occurred. the homicide was where case, further said Tubb we by Judge Ramsey say

And as record, do not inspection a careful we believe this: “After view the action trial court justified, we could or be failure judgment evidence, reversing conflicting change venue.” court grant number bills the numbers large exceptions, has a Appellant 1915.] v. State. Babnett seventy-one. However,

extending high forty-two only contained in We the record. abandoned others. presume appellant of those in the record are on Several the same will not subject. to take be each will dis- necessary up separately, we take up raised cuss them. questions 3. While from the being selected veniremen special summoned, reached, when names of three them were was shown were out as case. they the consideration of another jurors upon demanded that upon. then Appellant passed brought refused list to be names on the the other required these called However, and trial on which with. proceeded jury thereupon were jurors engaged a and day returned verdict the next time were examined another they and in this case. At passed upon another name on list venireman this evening; was reached one called. attendance until a short his name was time before left, that Presuming his name he evening, would not be reached him but returned the next The the court had morning. morning next called as a and such juror he had examined and it developed him physical infirmities to render unfit and the court as a juror excused him. To the When did not object. him excusing appellant the name of his another because of call, was reached juror on the he sickness, the court had him until when morning, excused the next returned. He State. was then called, examined and challenged court, The at qualifying bills as to these showed jurors their time names the case were called and he declined to postpone and until their attendance had, could be and that did return when examined, were challenges appellant a number of peremptory fact, left. that he until challenges did not exhaust his peremptory the twelfth without juror was be selected accepted he was challenge and he any other was upon appellant forced objectionable juror. , regard with settled law this our statutes State man the formation and not cases are directory capital irregu Under the decisions of State none of the datory. many pf Murray larities error. show reversible complained appellant any v. 21 Texas Texas Crim. State, 466; State, Crim. Jackson 30 App., v. State, 664; State, 323; Hudson v. Texas Habel 28 Crim. App., App., 291; 588; State, 28 Texas Crim. Roberts App., App., Crim. For Bizzell v. Texas Crim. 861. W. 162 S. see secs. cases 725-726 White’s Ann. C. C. P. Judge 4. several bills that the committed Appellant has complaining veniremen. error in his for cause for several overruling challenge the bills with Taking qualification, together explanation court’s none of these show error. Choat, has Mrs. Hora several bills to the Appellant be- contract deceased, of the rental substance telling widow out matters arose tween deceased and the various appellant shows that stated, early of it in its the evidence execution. Briefly Beports. {May, Texas Criminal certain fenced fifteen-acre March, 1914, deceased rented field

(cid:127) halves, Not to be cultivated cotton. appellant planted afterwards trouble deceased while arose between great appellant over the teams and tools with which deceased was to be furnished ap- Deceased claimed work cultivate the field. appellant contracted these as for. claimed pellant furnishing Appellant more month that he was and differences resulted fight and ill-will before the evidence was that existed killing. animosity these from that until various between date killing parties killing threats, one were shown. immediate other, his occurred 1914. Deceased and early June evening at At wife work in their at time cotton. were field chopping noon all hour, while were family asleep, appellant’s . out, broke out of his deceased’s field where jumped into_ mules lot them his wife to hold sought work. The son sixteen-yeat-old

under stock law. first sent his The appellant out him deceased’s the mules. Deceased made back get go into field out, “would mules.” the field and told care stay take after He consulta- went back and father. reported Thereupon, boy, tion and his he sent small family between wife eleven old, anyway. Appellant into the field to take mules years boy sixteen-year-old himself and his armed with Winchester rifle and himself and followed wife with each shotgun appellant’s armed sixteen- the and his little on the west deceased’s field boy, appellant notified on the east Before deceased boy appellant’s side. 3rear-old (cid:127) sent mules, deceased sixteen-year-old get son he could - saw tie Appellant wife house for which to them. with rope house, him, return right by deceased’s wife from her passing it. she direction deceased with speaking, rope, with going the field through Mrs. and little down When Barnett passed boy into to drive them out field appellant’s the mules and of deceased’s get lot, claimed, its conten- the State and had evidence ample support with them down where mules and tion, deceased followed keep hoe motioned towards the mules to them keep back is, Barnett contention Mrs. them. getting Appellant’s it, attempted was assaulted and ample evidence deceased support her Mrs. followed some strike Barnett with the hoe and then up stated, was contention, as distance for the same The purpose. State’s Barnett, time to assault Mrs. deceased at no assaulted or attempted but that he motioned with hoe of con- used, and purpose mules movements of the not otherwise. trolling Cheat, objected to, our the evidence of Mrs. properly under- admissible. Neither the nor could have court, jury, properly nor stood the case immediate killing facts bearing in- being motives intent without and deceased appellant formed objected of the various matters shown Cheat’s testimony Mrs. by to. We think it detail these matters. into unnecessary go 6. There testimony are to some other complaints v. The State. Barnett 1915-1 Choat, Mrs. bills explained qualified by appellant’s think

court, we none of her them show error. Some these bills to and that they, of some other witnesses testimony her and complain after next being permitted testify killing morning she loca to these evening, ground, out witnesses on pointed with herself, tion of Mrs. Barnett, together deceased appellant, the movements of the little who mules, and Mrs. Barnett’s boy, made one of these witnesses the mules. From this data following measurements-and illustration used for drew which was map intelligible make their the case and the more testimony testimony and better think this understood the court and We jury. by State, Rep., and admissible. 43 Texas Crim. pertinent Weaver v. 340; State, Knowles v. Texas also 322; Crim. see Pinkerton v. Rep., State, State, 87; 71 Texas Batson v. Rep., Crim. 160 W. Rep., S. State, 48; 625; 38 S. Carter Rep., Neely State, Rep., W. v. S. W. v. 61; 345; Thatcher, Crim. Matthews 76 S. v. W. Rep., Louis, R. etc., Alexander, 648; St. R. 115 W. Hart S. Cas., 706, A. &

Railroad, 12 E. An. note. 7. As Jimmie bill the court’s qualified, appellant’s permitting to answer a shows Nor does his bill show error. question, on cross-examination State, error asked any questions Barnett. to the reintroduction Neither does bill Padgitt the State of himself further cross-examination Crim. show error. This is Branch’s always permissible. Law, him. see. and cases cited by evidence of threats "the introduced deceased directed Appellant his wife also. submitted properly appel Under

lant’s self-defense of his based on threats. wife, and defense (art. 1143, C.) terms statute P. circumstances, such under the court, character of many general decisions of man, dangerous as to whether or not he a violent deceased admissible. man kind and disposition, clearly inoffensive to show also introduced evidence tending had lived. where he Oklahoma, formerly in difficulties in engaged general repu rebuttal the State of his said This made evidence in by State, Texas Rep., in Bullock tation Oklahoma admissible. v. Crim. cited. 419, 196, authorities there 165 S. W. and Rep., substance, asked, in 9. Mrs. Choat she was On cross-examination of that family if told members she him at one time kept was of a and she disposition deceased violent testified that she they her father. She denied this and from killing in her court, them. not err therefore, permitting had so told did difference never father to that he and deceased had testify that to kill him and that time attempted deceased never at any for that did not him from getting gun purpose. Mrs. Choat .a prevent to introduce evidence did the the State Nor court err permitting George Dugan. Scott tending impeach Sv first From the when the court prepared record appears Bepobts. 76 Texas Criminal jury, to the charge attorneys. submitted to appellant’s properly then made various They thereto and objections charges. asked special It is evident the court some of recognized, objec- these thought tions, all if not of them, have been may thereupon well He taken. seems to have remodeled charge submitted and then entirely remodeled charge to they It also appellant’s attorneys. appears that then objections charge made as the court remodeled. Most error, of these are very general. Too much so to out point any specific the statute. required by Among other issues, In his manslaughter raised. main charge, court what we gave think is correct charge on that sub- apt However, thereto, ject. appellant made exceptions very general he asked full another thereupon charge subject on that himself which the court gave, thereto making addition which was merely applicable and favor. appellant’s is unnecessary these copy charges and the objections court’s main charge. We think as favorable law appellant as the and the facts justified and there was no mistake or error therein. And none of appellant’s other charges have should been given. In a defense, charge the court submitted not proper only appellant’s

his claim that wife, he killed deceased defense of his but also told that if he killed himself him. defense of to acquit His objections portion court’s were very general out no point error, he now specific claims the court erred self-defense himself. We think the with submitting evidence, it, out did authorized, if it the court reciting to submit require, this defense in did appellant’s favor the court not err However, so. even evidence doing if the had not raised self-defense favor, the clearly court such an issue submitting him, been in and not his favor settled law of this P., State when such the case no reversible error is shown. C. C. P., 743, in 1913; art. sec. Judge amended White’s Ann. C. C. cases State, cited Jones 63 Texas many therein; 394; Crim. Christian Crim. Rep., S. W. objection

Over the State evidence proved appellant, proper at mules running the stock law in Hunt large prohibiting force. At the adopted had been was in instance of 'County charge: gave special State that, homicide, running at the time of

“You are instructed mules was under in Hunt the laws prohibited large County that' If, therefore, believe from the evidence the de- you this State. occupied enclosed lands Harri- mules entered leased fendant’s of the said land son Choat about cultivated roaming Choat, Choat, you of said Harrison then Harrison without" the consent to the lawful right instructed that said Harrison Choat had until it in his was possession stock the same said impound retain appointed by justice three freeholders determined disinterested by v. The 567 State. Baehett 1915.] if been to any, had done damages, of said what peace precinct fees, mules and what if any, of the said Choat 'said crop by was stock.” entitled to under the law for said impounding to this reasons: Because there for these

Appellant objected matters are no facts in evidence issue it, it authorizing puts showing not material no things either there was side, mules, said of deceased had crop damaged been done uncontradicted damage showed that no evidence right them, that deceased force, whether the stock was law it immaterial, take mules, required of said possession was jury preju- an either side pass upon immaterial issue to dicial jury and confusing it was appellant; misleading upon tendency and would of the evidence weight law, under the limit rights defense him of and deprive said takes from upon whether right pass stock law inwas force in said county. In this instance, special connection court, gave at appellant’s time charge as that at follows: “If believe from the evidence you Barnett, P. defendant, B. shooting to the appeared hoe deceased, Choat, Harrison with a upon an assault making wife of make such about to defendant or that deceased was said assault defendant, appeared the wife of the and if bodily defendant that she death or serious immediate danger shoot injury, then and right had the that event defendant kill shoot and kill to so deceased and defendant’s right mules destroyed, defendant’s fact that abridged limited running were in deceased’s cotton or with reference any law at large of live Hunt stock in County.” All estab sides, conflict, clearly both without testimony by any lished that fifteen had leased the said or rented to deceased acres that the deceased field, fenced wherein the killing occurred and and, so lawfully lessee, time was thereof, as such possession far as the concerned, stock owner of law leased field. It was, lease, deceased’s home the term of the during thereon, stead, and the raised raised crops thereon, or the being crops Griffin, to him. v. exempt Texas, 209; v. 60 Moore (Wheatley 423; Graham, Warner, 200; S. W. Rep., Phillips v. S. W. Rep., 94; Anheuser-Busch Assn. Allen v. Smith, v. Brewing Rep., S. W. Ashburn, 65 S. 45; Texas, W. Coates Caldwell, many authorities to the same effect.) if had no

Appellant enter thereon right trespasser and would be did, the same as other outside would have been. party has landlord the leased make entry upon even to premises needed unless the contract him repairs, gives right. Higby 163 W. and authorities Kirksey, clearly S. cited. Appellant this and testified after trouble arose recognized between them and said: before the “I ‘Har shortly killing (deceased), told I says, rison, far as as far your so is concerned and as it property gives you Bepokts. Ckiminal at to are you perfect liberty go liberty my place, wherever to don’t otherwise, you my go, go place crop gives you permission ‘All said, right.’” And he further.’ any it has as to the stock law when been expressly

The statute provides S., in this 7248): as was shown instance “It shall force, (R. in put designated any at within limits large to be unlawful run permit in The law the class said adopted animal of mentioned proclamation.” included mules. in this instance expressly stock 7249): next articles are “If forbidden (art. The two any shall, without being enter the enclosed lands, run shall large lands residence, about the lots or cultivated herded, any roam person in consent, county without owner such stock his any other than the in have become chapter subdivision provisions in, owner, article, in the manner provided preceding operative such such may impound lessee or lands possession person lawful fees occasioned damages detain the same until his and all and stock him.” said stock paid by shall be they “No animals unless have entered impounded (7350). found lots residence, the enclosed lands or be about the roaming upon and, land whenever stock is another, impounded, or cultivated owner, known, shall if and owner thereof be such givem notice and damages.” fees entitled their upon payment shall be possession the fees taker of such next article allowed the stock prescribes up The three justice appoint authorizes and requires peace to assess the if done damages, disinterested freeholders such any, regulations taker any, and the fees if and makes due the up, stock As article to mention. stated said unnecessary thereabouts the owner of the stock “shall be entitled to their possession pay- and damages.” ment fees

There can from this that both appel- record but law family and his and the deceased his wife had this stock lant it at the immediately were time and before acting upon mind The facts show and his killing. appellant, family the mules haul oats in the of the killing morning day using them that at evening wanted the same again purpose; turned them in the watered they lot, noon and fed them and the appel- family, dinner, his after all time. lant and went to sleep, slept lot wherein mules were turned from deceased’s separated wife, fence. deceased and by appellant’s field passing their house their and-fro field pass pass did o’clock, house. About 1 right by and his while asleep, wife, deceased two family their little in- taking children, went to their said field to fant cotton did chop engage cotton. were somewhat chopping their They below center of field. While were thus at work family three mules asleep, appellant’s jumped over said fence out of lot field. into deceased’s began grazing therein, south towards They going wife, and his them. who saw testified: Mrs. Choat “When v. The State. 1915.} mules the field I hoed on a while went to these three I saw hoed like minutes after forty seeing house after I rope; something then went home and over to Mr. the mules in field and McFadden’s. in the lane lane, crossed where I went up got I going front Mr. Barnett’s house.” went She field at the time and up to house, got that to her for her rope then shows she went husband to take it to him for that She purpose. tie the mules hack and went that in the after said Barnett did not come down field Padgitt at said she was there the time. mules while she was there. Padgitt after the in the field to her went down According testimony Padgitt rate, At any mules while she was to her home after the gone rope. mules after his woke his three they and discovered appellant family up, field. way deceased’s field about two-thirds of down deceased’s sent his into sixteeh-year-old Padgitt son down Appellant towards field testified: “In going to mules. get Padgitt he Choat, to and tolerably the mules I had to close Mr. pretty pass and around told me if after mules I could turn I was down going stay to hack, them mules in the field were go were and they going there, and I turned around At another and went on hack house.” and always said: “Mr. Choat to me like he talks he about place spoke and reported told me not let me back he would take the mules and I went and to father.” that came back himself swore my Appellant Padgitt “Mr. Choat Padgitt him, so to him. that said to He said reported him him if was going made come hack out of the and told he field he out, hack mules hack go down in field after the to and stay appel- would take care of the mules.” Just so Padgitt reported after Jimmie, lant consultation with his his sons Padgitt wife and substance, all that first he was said, going they down himself that his mules; wife told get trouble, further better that he might thereupon, upon go, Jimmie, her little Mrs. Barnett cousultation, it was determined mules, should down in field eleven-year-old go get boy, Jimmie then out do after she and Immediately so. started they his son rifle and himself a Winchester started armed with east side took the Padgitt Padgitt shotgun. armed himself with field, where on to about- fenced, opposite down and followed rifle, first stopped out with occurred. went killing Appellant He saw Mrs. corner. about northwest of the fence north string deceased going with which with the rope along Choat passing her nothing He said to one another. tie mules. They spoke after down going and Jimmie were his wife mules about her hus- towards rope with the down Mrs. them. Choat proceeded west string on the over in his cornfield band. Appellant got with along followed field and deceased’s outside of the fence just to where distance, opposite not quite got rifle till to ahoot Jimmie down got Barnett and Mrs. occurred. When killing She him. whatever to said nothing she she said was, where deceased string south about the The mules then down mules. were after the Reports. 76 Texas Criminal {May, of the fence. Both deceased and Mrs. Barnett and started Jimmie after mules and all followed them down the southeast about corner of deceased’s field. The theory, State’s there was ample it, to sustain evidence that Mrs. Jimmie attempted run the mules from the southeast corner of deceased’s field along n east ; north, run line so them into lot the de- so, ceased attempted prevent mules, and hold the and in doing raised his hoe at motioned mules north. prevent going one of the mules However, the east followed got went by, along string by Jimmie. The other two turned and went back west the south along out, fence, string of Mrs. Barnett to run the mules following along deceased prevent and catch the mules. The evidence on behalf (cid:127)of the State at attempt tends time strongly to-show did deceased to strike Mrs. hoe, Barnett with the at no such time was he in n proximity to her that hand, he could so. On do the other Mrs. Barnett claimed that at with hoe struck her when they the southeast of field, testimony corner the not at mules. The the and. by the State that were Barnett, shows the and two, when deceased Mrs. the mules west in front following along the south deceased was string, and ahead mules,—not of Mrs. Barnett that he and was after the Mrs. Barnett. The on the side was that Mrs. Barnett was in front and her with the hoe. This following disputed point was for to solve. But the jury unquestionably theory that im- clearly deceased was mules presented to hold the to seeking them, and them pound Mrs. and Barnett Jimmie from prevent taking from his and out and' possession them field. driving Appellant Mrs. Barnett testified that down both before she and Jimmie started from the house into the field the mules that asked appellant she get if the deceased had the them. told hold her Appellant he have, damage did not in effect liable might he for it, showing his had deceased, mules done if he so, pay and clearly and all at stock law specifically in mind the time the they it. under So for the rights very it important law. tell them, did, he of the deceased under the stock rights Our and civil courts discussed the effect repeatedly decided Rudd, stock law. it said Graves v. shown S. W. w.as therein sued recover his and twelve head cattle sequestered them. therein held Appellee damages them and claimed and fees under stock said law. The court rendered judgment favor for $2 fees appellee damages $24 owner costs. The cattle from that and, appealed judgment other things, claimed among that the lawr stock had no his application because cattle were in a field which was enclosed by fence and good escaped therefrom without court, fault on his The after part. said Revised quoting article Statutes, said: “The slock in did enter the enclosed field the defendant Grayson County, after adoption the stock law by said stock to run forbidding defendant, at under acting large; statute, proceeded trespassing impound the cattle were cattle. The v. The State. 1915.1 land the cultivated of defendant at the

upon time that he took same ino the act Under authorized to possession. impound until cattle, to hold same his fees and were damages paid terms of act,” provided by affirmed case. Court a writ of error Supreme denied therein. Bedford,

In Frazer v. Rep., 573, S. W. was shown that cattle to Bedford and from a in which belonging others escaped pen they confined and broke into premises enclosed im damaged his The stock was in Without crop. law force. trial pounding damages. stock sued Bedford al. et for as an court instructed the if the such care jury that defendants used man under the used, would and should have cir ordinarily prudent cumstances, to the en the cattle prevent escaping entering closed should land of the find enclosed then they plaintiff crop, refused, for the defendants. The plaintiff requested charge, which to the effect their cattle was the of the defendants to duty keep confined so his enclosed .as them from keep entering escaping so, land and if failed to do the jury damaging crop, they find should him. found Under the instructions the defendants therein Court Civil therein. Plaintiff and the appealed held that in a been adopted which the stock Appeals territory law owner of no fault land case (in deceased), guilty animals are forbidden fence which negligence failing must at owners such will, roam “The stock saying: country held liable the same confined else will be keep they their peril, neighbors account for inflicted on their damages which bemay dam such animals. Since agency have control of justice more reason occasioned, consistent with age have no means than their "they should suffer should who neighbors, of the expense whatever of to injury, the preventing except going would defeat the pur such to which fencing against animals, require poses law.” it the was shown In Evans v. 37 W. Railroad, S. Evans’ in mare law was in the limits of Greenville. city

stock force the and was after- but broke rope been staked close the railroad actual negligence train. Uo the railroad wards killed in Greenville of railroad for the value the shown. Evans sued the railroad was should not held that the railroad company the mare. The court run should not law said animals which the to fence required animal was and, owner of the at fact that the further: “The large; not increase the track does at fault in to wander upon not permitting liable, make it company, burden the railway the or responsibility actual negligent stated,”—that is, the showing except way just kind, in a of this not, case owner does killing. “The caution the company, the railway have the the care of effect of increasing court affirmed extra burdening with duty premises,” recovery. case denying plaintiff R. W. sued River, etc., Dooley, In Red R. v. 80 S. Dooley Eepoeis. Texas Ceimxítal May, L the railroad to recover him, $350 killing two horses belonging and recovered. The stock was in law force Denton where County, these horses were killed. The case, Court of Civil Appeals reversed the the stock holding force, where law was in “the animals tres- and their passers owner,” bare presence negligence part many cases. And further citing saying: “We agree do not with ap- pellee his contention animals at large question being without his alter knowledge would the rule as above announced. Under 7348); terms of the stock law in force Denton S., art. County (E. it is declared to to" permit be ‘unlawful to run at large’ within said animals county any class which This appellee’s belonged. we to mean it is the duty construe owner of animals such at prevent running large, and is forbidden merely he their freedom.” knowingly permit In the Hale, of Paris v. City Rep., 333, S. W. the stock law shown to be in force City Paris ordinance. Hale by proper his horse in his lot kept adjoining one of streets and it had public never then therefrom. escaped before He did not it to run loose permit streets. lot and on the His thereto were fastened. gates always kept an hour About hour and a half before the horse taken up the stock the horse some out or policeman got broke out way lot, into the street. lot Hale used due care to his horse in keep officer, out without his fault or how got negligence. he The police ever, As found the horse the street took him to pound. it out soon as Hale found the officer demanded possession, surrender, $1. refused unless he fee of This Hale paid pound do and sued for horse. trial held that refused Hale had reasonable to restrain his and it exercised care horse escaped fault, into the street without his consent or his horse was within running of the ordinance entered large meaning horse. The horse was not shown caused judgment loose in the street. The Court of Civil damage whatever,—merely had the held that of Paris Appeals City right, police regula animal, tion, that when an was thus found in streets provide uncontrolled, loose and -that should be owner impounded until fee, not entitled thereto the court impound saying: paid “It evident that was intended to prevent ordinance real evil, was intended to whenever supposed provided apply remedy regardless or want recurr.ed, the evil on the any purpose purpose animal, the owner of the because harm resulting animal loose would be same whether the owner or was being fault,” the court the case. not in reversed and rendered think, deceased, In this case the right we unquestionably to hold it, exercise to mules for the "fees undertaking appellant’s if could damages, appellant peaceably law how any. prescribed get of his stock that three disinterested freeholders should possession costs, to. damages determine what if was entitled any, deceased any none, his If would have stock without cost. appellant procured v. The State. Barnett 1915.1 fees, deceased had been entitled to they damage, any

If had caused He stock. could have by peaceably procured appellant pa;ring do in his kind, not but he took law attempt anything did to undertook by using forcibly hands and wife and little own hoy possession, out of deceased’s for that sent take the stock purpose and he and his armed them- sixteen-year-old the stock get them boy distance, and followed at a safe as with he did intending selves guns to shoot kill the deceased he State’s down and if standpoint, from her stock out attempt interfered wife in take the with his forcibly wrong He was a of the deceased’s and in possession. trespasser did not so but however, from start finish. The court tell jury, objected to told them the deceased special charge merely under the hold the until right stock law to of the stock possession three disinterested freeholders should -determine whether or he was entitled to fees We think court did in so any damages. right above, As shown telling special jury. by appellant’s charge, copied the court told the jury right defend his wife appellant’s the claimed assault her destroyed, abridged or limited fact that his mules were in deceased’s cotton or law Hunt with reference of live stock in any large running In County. it was opinion our the State to proper prove stock law was in force under and was the facts cir- necessary this case the court should also tell the as he jury cumstances did objected to. special charge If, circumstances, under the Choat had killed he Mrs. Barnett and had been trial think therefor, we there can be no but that question have, it would duty of court to told the jury Choat being had the said stock and to right'to impound prevent taken out of possession, to he done Mrs. attempted However, killed appellant. State Choat, had the right to have the court tell the what Cheat’s case which, doubt, were with reference to this without rights stock, to enforce and it. attempting knew

The court refused properly special all charges did refuse. submit necessary Wherever proper sought to he raised covered the thereby point aptly fully in his main charge. our error is out judgment reversible and the pointed will be affirmed.

Affirmed. DAVIDSON, Judge. 1. I believe the venue have been should Also the changed. court’s is erroneous in to de regard the mules. impounding ceased’s 3. There are some other I inclined to think erroneous am reversal. I have questions require not had examine critically, time to those am questions however, I persuaded ought reversed. judgment Reports. Texas Criminal rehearing.

on May Judge.

HARPER, In this a motion case has filed appellant holding in in which he insists erred rehearing that court earnestly that the court no below committed error overruling application venue; for a of that certain change second, admitting the court erred law- evidence as of reputation peaceable deceased being third, ihat evidence citizen; abiding the court erred permitting in the force, be introduced that the stock law was showing erred and, the court issue, fourth, on given this jury danger against to defend the issue submitting appellant’s the evidence danger presents apparent himself, insisting such issue. only these are the case, in the While the other waiving questions an able have filed counsel,

ones insisted on and they appellant’s At the thereon, for the State. exhaustive brief as have also counsel record, have taken the Prendergast we Presiding Judge request to the questions in regard filed and studied them carefully the briefs thus presented. venue appellant change "motion presenting tes- of witnesses number large in its “A says says: opinion case, testimony sides, tified for and, both usually others contention, white

would support appellant’s not pass court did it.” then insists that the would contradict He combination dangerous there is a the second “that ground, statutory ,he can persons, by influential against instigated appellant, discussed its original a fair trial.” The court expect sep- grounds each up without question generally, taking question. on the in passing but considered both arately, grounds com- a dangerous to show How facts does rely what fair from getting him, bination which would prevent that some show venue would trial? on the change The testimony man in another homicide had killed time prior appellant" was tried and acquitted; same community Oak); (Lone citizens of or twenty eighteen this homicide occurred some when seat, and Greenville, requested the county went to community Lone Oak and if a bill case, to investigate a grand the court to empanel dis- term, The record court. found, to try appellant portion southeastern that Lone Oak is closes .extreme not shown White mites from Greenville. county, twenty they time towards at the these men used harsh language men would that these be conceded it should talked with the judge, yet the interest owing not make fair impartial jurors, investigated. Appellant was promptly case taking seeing term. When at that indicted, hearing the cause set was granted. motion for a continuance for trial was called attorney, then district who was Heyland, that Mr. is shown v. The State. Barxett Wlb.J trial, for in his former was also his homicide

attorney appellant When deceased the district attorney’s brother. killed appellant brother him, he went was to confer to by called with Lone Oak appellant continued homicide. After the case was there was some- day being said of Lone some citizen or citizens Oak about the case thing by continued which district said to reflect might be attorney the citizens of brother. The district a of attorney meeting called them, Lone addressed ex- Oak community, some sixty attending, that he plaining employment opposed continuance, suggesting of counsel to him. sug- On this prosecute the case connection with Mr. gestion Johnson list in the Lone around a Oak subscription passed and raised to community prosecute funds to & employ Leddy Clark nor shown, case connection with the not attorney. district suggested, even that con- man outside Oak any community of the Lone to tributed this fund or was solicited to so. This is the full extent do of a combination it' shown shown, if it shows If a combination. the record county, that condition all over the the same existed considerable any in the Lone thereof, pre- Oak portion existed cinct, But record change should venue have been granted. discloses that Hunt least voters, and at contains some 9000 County very a qualified jurors, Lone embraces Oak precinct only small cent per number, of that votes. The com- Campbell only is in the and the munity Oak, to Lone Oak near Lone precinct, and same condition to may Campbell, although have existed at is shown that signed had who at many Campbell friends venue, application for a testified his behalf change and who on this But a hearing. do about what the witnesses for say “combination of influential citizens” ?

O. E. “No, Branch testified: combination sir, any I do not know of influential citizens that would organized any way prevent defendant from a fair and trial.” getting impartial M. Finley D. testified: don’t combination “I know Mr. against Barnett, reason of instigated persons influential he can a fair trial. Lone get Where we got Oak. I understood came here that one a crowd from Lone Oak day to a trial.” demand a change

W. J. Wheeler that while affidavit testified he signed venue, that he of a com- say dangerous did not mean knew had bination of influential he based it on reports persons—that come to him that some citi- employed counsel had to prosecute zens Lone Oak. Mr. Barnett Dunbar that he (Sr.)

W. O. testified friend that he did not know been his a number had friend for of years; the defendant against combination of influential combined any people based allegation him trial. That a fair prevent getting had gone that some citizens of Lone Oak Greenville the fact this might and it trial, investigation demand create prejudice. Reports. Texas Criminal' {May,

Hr. W. E. Harris testified: don’t combination “I know influential citizens that have combined Hr. prevent trial.” a fair getting

These might were all we witnesses introduced by appellant, continue such excerpts necessary, but do deem it each facts one them shows every only sustain such an that some allegation stated, eighteen was as hereinbefore citizens of the district the Lone twenty gone Oak community judge asked a grand try appellant empanel term list court, subscription further fact that had been employ funds to circulated in Lone to raise community Oak wit- Clark & In addition to this few Leddy prosecute the case. nesses that not stated that heard a rumor if he was they promptly had tried there shows that the case might be the record yet mob._xviolence, com- continued, bond, Lone Oak returned the appellant gave and there was munity, had, remained this trial was there until or of mob sign suggestion violence. In court State, the case of Earles this Rep., v. 47 Texas Crim. locality held: one particular “If the evidence that outside of shows of defendant, there is the decision little, if very any, against prejudice the judge will be sustained.”’ refusing of venue change the case of a portion Renfro 42 Texas Crim. State, v. showing of recited, stronger is we think makes a testimony than was court testimony, made in this case, and after reciting that says: not that “We do think facts as above detailed show appellant trial, could not a fair and under laws get impartial this trial. State, Constitution this in Johnson at the time of of County been, The evidence discloses that there might whatever prejudice as far as confined to the northeastern shows, record part who witnesses county. voters, contains 9000 county testified for are all from the northeastern appellant nearly lived. county, where Some parties formerly tragedy that witnesses introduced himself stated would by appellant not swear that a fair and could be selected in impartial jury immediate occurred. We find vicinity where the killing nothing this bill of to indicate there exists combination exceptions any County deprive Johnson such people any prejudice likely a trial to the laws and Con- according fair and impartial, stitution this State.” case,

As shown in this Hunt 9000 evidence contains County voters; 370 of them live in the Lone Oak and whatever precinct, only is there is confined to the against appellant Campbell prejudice Lone communities in said in the southeastern Oak precinct portion and when we the record as whole that now county, consider that it us, before discloses was not to obtain a only possible which would without selected be way they prejudice, but out of a than fact one was selected venire of less one men. hundred the record there is As we read indicate nothing case v. The State. 577 Babetett 1915.1 of Hunt nor that there been prejudged citizenship County, the offense against locality where appellant except prejudice and the evidence committed, (excluding offered by offered shows was no combination State) dangerous him get influential such as would prevent instigated persons trial. of venue are confided fair for a ting Applications change of the trial discretion should discretion judge, it has abused interfered unless the discloses appeal with record v. exercised to of the accused. arbitrarily Noland prejudice State, 3 Texas Texas 598; State, App., Crim. v. 4 Crim. Grissom App., State, 374; State, Labbaite 257; v. Texas v. Daugherty Crim. App., 480; 254; Texas v. Texas Crim. State, App., Crim. Cox App., State, 271; Bohannon v. 14 Texas Martin App., State, Crim. v. 119. And 1; Crim. State, 30 Texas Crim. App., Lacy App.,

whenever the facts that whatever existed confined prejudice show to a single county, section of the there is no error refusing Harrison application. 43 S. W. is, next contention this cor-

Appellant’s while court perhaps held that evidence that the rectly was admissible of deceased reputation was that citizen, peaceable law-abiding insists evidence inad- admitting testimony admitted missible on issue. He cites the T. specially J. Stewart. The entire bill is:

“Be it remembered the trial of the above entitled cause, and numbered while State’s witness J. T. Stewart was and stand, chief, the witness examined State’s counsel being were objections asked with the and answers following questions following thereto, Q. towit: if not you State know whether or the deceased character, was dangerous a man violent and or a man of kind inoffensive and whether he was as cal- disposition, such a person culated to into execution a threat made. Counsel for defendant: carry witness, it object that, We because leading, conclusion of the introduction, immaterial and irrelevant and proper no for the predicate Q. and not in rebuttal if anything. know, his you general as violent or reputation character, a man of an being dis- inoffensive for Counsel defendant: it position. object, We because is immaterial and irrelevant, laid for predicate proper introduction, calls witness, for conclusion of the not in rebuttal us, offered anything and does state whether in Halifax, Missouri, or not have been known to could the defendant. Court: Q. Overruled. Defendant Do excepts. know whether you he was man violent and dangerous character, whether a man of kind inoffensive disposition? Counsel for defendant: Same objections that. Q. Overruled the court. Defendant ? excepted. Do know you Yes, Q. A. I know. State what was. Counsel for defendant: Same to that. objections Court: Overruled. Defendant excepted. A. He of a character, never peaceable any I knew of him having

Yol. Crim.-37. Repobts. Texas Csmiual 7G Q. A. sir. say

trouble. You he Counsel peaceable? Yes, to that, the same and move to objection We raise strike defendant: Q. Defendant Then whether excepted. out. state Court: Overruled. and inoffensive de- disposition. was of kind Counsel for not he to that as and the other too. leading, objections, : AVeobject fendant Q. Counsel We ? A. He was. for defendant: General reputation court then To all which defendant action and except. ruling here tenders his hill and there open excepted, filed examined, and asks that the same be exception, approved of the record of this cause. part Stinson, Sam D. Harrell, Hamilton & Crosby, for Defendant. Attorneys “Examined, as a the record approved ordered filed objection this cause with this There was no explanation: asked .or answers made questions were the proper way prove no motion exclude general reputation; ground, answer on and I understood the general refer reputation that the so understood them. parties appeared Pierson,

Wm. 8th Dist.” Judge, made by thus seen trial of the ease the contention repu- was that the State had no general prove tation of discloses mentioned. The record respect tes- before the were Mr. Stewart questions propounded objected to Sobel, an uncle tified : “I live old. am Oklahoma; at I am 44 I years coming to Harrison Choate remember Harrison Choate (deceased). I He to Texas. he born. I have known Harrison Choate ever since was me, He making—timber has worked in stave work. mostly business; for me four or in the stave working mostly five years Luke- Soba, Soencerville, places Ruth, Coreen, worked timber fodder, all for me I he worked believe places too.” Texas, for me in remember—no, business as well I worked had. that deceased to show had introduced evidence tending Appellant de- that he had heard Ivennerly, made threats him. Mr. By across, be- trouble not come God, if did say, ceased “By appellant said: Willis, deceased had that begun.” Clyde tween them had not By he would him off the place—that “That was to run trying appellant before breakfast before morning every son-of-a-bitch scrap great big that deceased Scott, he heard C. he would let him run him off.” M. By up business he get out of his “That not stay if did say, appellant with Branch, practicing that deceased had in his wool.” Sam By a deceased Barnes, cleaning that he had seen Grady By pistol. and tell appel- he was led rifle, go his acts and conduct and from not “that if he did careful, he had and tell better it, about lant time.” By on and kill him some get drop liable deceased was 1915.} v. The State. told money that deceased had him “he could make more Smith,

Wylie Appellant than could a at crop.” whipping appellant making that had with his father-in-law deceased trouble tempted prove Oklahoma, not and would have killed him if wife gotten had that de gun introduced testified him, and witnesses who away that ceased’s had told to show wife so them. Also evidence tending Oklahoma, deceased had other and then difficulties got .had stand that matters; himself and these deceased testified heard having After him. threats, made and the threats were communicated to the introduction of this then testimony proof gen by appellant, law- eral reputation of deceased was as a peaceable admissible abiding citizen, the court not it. While did err admitting the above bill it stereo be said that the not may do follow questions form, community “Do typed you general reputation know testimony where he mentioned, lived?” in the the whole respect yet and examination that his repu shows the witness was as to testifying tation in the and while the where he had community lived, questions no propounded examination a little irregular, yet were perhaps was testimony out than that brought general reputation deceased’s that was a was and the "peaceable, citizen, irregularity law-abiding doubtless brought continued after the objections appellant court had admissible, ruled deceased’s general reputation bill no error. introduces presents When on trial person that deceased had then threats, made evidence of general reputation admissible. Menefee 50 Texas Crim. State, v. Rep., if the defendant introduces evidence of communicated it is threats, error for the See State to introduce proof peace. character good also State, Rhea 138; State, 37 Texas Cornelius v. Crim. Rep., Texas Crim. 173; Jirou 53 Texas Crim. witness knew, qualified to when asked if prove general reputation “Yes, it.” answered, I know next objection makes is that the erred in admit- appellant ting territory evidence to show the stock force in the law where the out mules went into the field cultivated got being deceased. This so discussed in the thoroughly original .it do again appel- we would not deem so necessary only lant now makes was not a tenant but a contention a estate in the no land. If this were “cropper,” being cropper, true, that issue. phase upon of course would different entirely put land, in actual of the deceased had If possession on that issue erroneous. then the court’s would be possession, But does in this case even suggest the evidence cultivated The fact being land deceased?

possession farmers issue, of his homestead does raise such an bemay part rent all of their homestead to tenants for often farm part very tenant is in year under the possession law year, during what is termed tenant, fact is a and not if he in farm, fact that one as rent pays crop Bor-does cropper. (Jbiminal Bepobts. holder, one a and not a lease

and of itself make tenant or cropper fourth, whether he the and or the If is pays crop. third one-half it and who in crop landlord’s the one the labor pays the does the crop of the in laborer services, a for his then the is payment crop however, tenant, If, a holder but is what is termed a cropper. lease of the the a crop in owns owner pays the one who labors the crop the rent the the the for as year use land given portion crop for of land, a land, for the and has of the he is not but cropper possession tenant, statutory a interest in the land. This is a lease hold has Statutes, “All this Article Eevised reads: State. persons or term have a preference lands will or for a shall leasing renting the indicated such lien tenant hereinafter upon upon the property . for due . . whether same rent the may become premises If property.” is to be other paid money, agricultural or products would could the the owner of the soil he crop was the property is the rental have no lien. is true that under decisions where our the it has held the maturity one-half of the crop upon is the of one-half the becomes and owner land crop owner it as owner may raised on the rented sue for premises, crop a lien he is lien on the tenant’s held to holder holder, only furnished, as he and if he supplies half of such may crop is the has the other half of the crop property furnished supplies, far owner soil the tenant with as he wills in so to do as if trade is that he is hand, is concerned. On pay as man works one-half raised landlord wages, who crop would be and the who the crop own the entire worked crop, person for which have a cause wages, might entitled to one-half it. That text if the landlord refused well-known writer action to pay law, Tenant,” “Landlord well Mr. Tiffany, land work “ tenant: distinguished in section 10: from Where 'Cropper’ says makes contract with another whereby owner land a latter is cultivate land be divided between crops produced the two in a certain relation landlord parties proportion, tenant or not result. The does result may of whether may intention, one of to be is determined construction of the whole instrument if writing, language the contract used agreement and their acts in out the if the contract carrying parties con- is oral. various considerations which this operate may nection, an and the arise under such perplexing questions may agreement ownership division, will crops pending discussion, merely be reserved for future is desired in place out that the tenant has principle possession point only that an another has not occupant possession applies in capacity is, lease, case as in others. That if the agreement making involves he has tenant, cultivator of land while if possession, And, contract,’ is mere remains owner. possession 'cropping if conversely, shows intention that agreement possession the 'exclusive as it shall frequently expressed, remain possession,’ v. The State. Barnett i9is:\ a

the land it does not constitute a lease the cultivator owner, making tenant, it shows an intention shall while if cultivator have or 'exclusive he is tenant. In one possession possession/ necessarily refers as or two cases the court one several possession it but, considerations on the of the relation of the parties, question it submitted, established, if their intention in regard clearly must conclusive as the relation.” necessarily himself

How does the evidence in this case what show? Appellant testifies: "The furnish I was to agreement (appellant) team, team and tools to necessary work the the feed to feed crop, the gin.” he was to me half delivered (deceased) give crop He further later deceased says on he to let (appellant) arranged have more land than at first testifies he let have. He furthermore that he later talked to the to deceased justice of the “in regard peace rented,” on his trespassing with place of where had exception he and that thereafter when some trouble told says arose deceased, “Harrison, so far as far your crop is concerned gives my you are at wherever liberty place you perfect liberty go that crop gives you but don’t permission go, you otherwise go my place any further.” similar Many found expressions can be all con testimony, showing that his construction of tract was that he fact, had rented the land to deceased. no issue appears have made in the trial but seems to have been court, conceded that deceased was tenant in land, possession contention that he was merely no interest “cropper” land is raised for the first time in motion in this for rehearing court. All the witnesses so testify. Padgitt Barnett, a son of appel lant, testified: “There was a rental contract de Choate, which Mr. ceased, was to rent the land. I heard the terms of the contract.” R. R. Neyland, testifies: attorney, “Bob (appellant) counseled with me man that was concerning living.on place by name Choate; of Harrison rental see me reference to contract that he claimed he had with Mr. Choate.” Mrs. husband, Choate testified: “We went (herself deceased) to Bob Barnett’s house and stayed there ’two weeks and then went house keeping on his husband had place. My arranged rent some land from Bob Barnett. I heard Bob (the what defendant) say contract was before Harrison ... I there (the think deceased) was about of land acres husband rented.” thirty my Hnder this state of facts none of authorities cited bear out the contention now made that deceased was a cropper tenant and had no land. Instead the lease hold interest trial, above evidence on the being uncontradicted unquestioned no can be but that deceased was a tenant possession of the land he was But it be insisted that deceased cultivating. may had not the mules. penned The record discloses that deceased when and his wife went back to their field found the mules in this enclosure. After working some sent forty minutes deceased wife Cjeuminal Bepobts.

back to their home after ropes catch the mules. rope Barnett, While she was son of went gone Padgitt oldest appellant, into this field mules. down after Deceased refused to let him record, under this Morally, might them. be said wrong, did he committed to hold legally wrong stock into an got enclosure under his law control stock in force year, being in that into territory. that his stock had Appellant knowing gotten deceased, under the of and of had enclosure control in possession no right to take them force. if deceased had attempt by Even enclosure, does legal right them, hold the stock in the his law being not sanction the use by of force of his appellant regain possession stock. He after to do so his attempted son peaceably sending by them; declined to him then Appellant let have them. sends his and son after the on younger stock, wife taking gun, getting he field, the one side of his son another and and older takes gun, gets For side the field. what his of did and purpose appellant son their and sides guns opposite take of fifteen-acre field get contends, Barnett If, while Mrs. went field? as it appellant into that was to his wife his insult and see deceased offered wife no protect him, or legal taking violence as contended did no in wrong and the instructs the court so guns, jury, giving special defendant, charge requested by follows: reading “You are further instructed homicide is law when justified by another and committed defense of unlawful person against violent attack made in manner as to such reasonable expecta- produce death, tion or fear of or serious to such bodily injury and party, should, not essential in danger only exist. fact, may be and not real. If from the apparent circum- reasonably appears existed, stances case that danger acting of such person has the danger same it and right defend apparent same have were and in danger real; extent he would deter- believe that did mining danger whether was reason exist, must viewed from the appearances be who standpoint person them. acted upon

“How, wife, if the her together defendant’s with little went boy, down into field for the out the mules of defend- purpose driving ant, deceased, Choate, in and Harrison hoe his hands, with a fol- lowed after them and the mules of defendant running commenced field, across and the wife defendant started rapidly pur- -them, suit of and deceased, Choate, Harrison her with following hand, hoe from the acts Choate, any, said Harrison if his words, from acts, with his if coupled there was created any, mind defendant a reasonable that his apprehension wife was danger her life, or losing serious harm at suffering bodily hands the said Choate, Harrison then the defendant had the to defend her from such danger danger, reasonably apparent appeared to at the time, from his standpoint. viewed “If, therefore, you defendant, believe from the evidence that in Hunt State. v. The 1915.1 D. did kill Harrison Texas, on or about June A.

County, time did so at the believing him with shooting gun, Choate by serious life, or of her losing suffering danger that his wife was Choate, then, hands of the said Harrison harm at the bodily your so event, say by you guilty, will find defendant verdict.” took his State, appellant hand, On the other if as contended the intention field, taking

gun one side of the with went attempting with wife force, stock if deceased interfered And wrong. did him, out, drive them to shoot and kill contended if, Choat, as there, after took the out appellant, gun the mules only prevent endeavored to keep (Choat) enclosure, wife because he them out driving guilty did deceased, so, do he shot killed attempt of an murder unlawful both and as the submitted homicide, evi- murder, manslaughter, and the finds appellant guilty deceased; dence showing ill-will existed between surrender that he had been informed Choat would peaceably mules, and younger wife knowledge with permitted Choat, son to anything after the mules go without saying deadly with a further that himself when he armed showing went, they when stationed weapon, himself could parties, where he watch or out, Choat driven being either the mules from attempted keep we deceased, made an in and wife, attack shot on his rushed appellant murder, as believe the him jury would be to find guilty authorized his on had attack that not they necessarily found did make Choat on facts wife under the physical the court. And given by that deceased contention, sustain would show ground for .they never been and had thirty some feet front of Mrs. Barnett hoe, than this; nearer her than other was armed no weapon with hoe, distant, feet assault thirty one could another with a hardly at such striking person. toas in the original The criticism used language not need went, where direction he over the fence and the appellant got fence, over be discussed. It be immaterial he got would where over did get shows that when he and all the testimony, only him. The killed direction of and shot and he went in the Choat attacking is, issue at this not Choat material whether point led conduct he appellant his acts and or whether by wife of appellant, submitted were fairly and these issues his life in danger, believe the court. that rehearing in the motion for presented other only question self- right appellant’s submitting erred made an assault to defend right against of his defense, independent issue there is evidence raising contends wife. Appellant danger danger apparent to defend when mule, over a at the barn trouble testified himself. to. Appellant d—n the G—d I will beat “Well, you, G—d d—n had said: deceased ' {May, Reports. Texas Criminal hell out of he you.” That and deceased then had fight, and deceased struck him with hard, something which he thought awas pair that knucks; after had heen separated deceased said, had will “I the whole whip damned That family.” his father had told de- him ceased he had said would kill him That he tried to (appellant). settle with deceased but could do so, and deceased am him, told “I with through you yet, and if don’t come across will you whip I you and your whole damned off family the face of the earth.” that appears further after this trouble served had notice Choat that he stood ready to comply with his contract (appellant’s) with deceased, and unless deceased also complied with he would con- sider the contract at an end and take it. legal countermand steps When Choat got him, notice says came see said, other among things, “Well, I’ve sent taken the notice you me to fellow he tells me I’ve come where I make got you can you across, and by G—d, if don’t, ain’t also trouble commenced.” He you he was says told that Choat had said, “that that came the first man down there or interfered with him he to kill crop, going him.” That Mr. Smith had told him about Choat that would saying kill the first man who interfered with him in his Choat crop, awas dangerous man, care- had better very be (appellant) ful; he, Mr. Branch had him told him; Choat would hurt appellant, ought to be careful for he talk- he was knew what (Branch) ing about. He said Willis him “he Bryant said, told Choat had could whip (appellant) morning breakfast, before every and then do a day’s work”; cleaning Branch told him Choat Grady he saw up gun and it. with He also practicing testified Robertson had told him that Oklahoma, Choat had trouble trouble and had had everywhere he went, man, dangerous you and one to have likely trouble with time. instances are recited Many by appellant, and his conduct on occasions which would indicate appellant a right to his Choat, believe life was in from and danger that Choat was a dangerous man. day On the Mrs. of killing Barnett testifies about going mules; the field after the about Cheat’s conduct, and that before just she to shooting heard Choat call wife, them,” it "Bring here—I at that it get will time and looked like Mrs. to Choat under trying get out from something .Middleton, her dress. Smith, introduced also Mrs. Mrs. Appellant Miss Mrs. Pope, Myrick, Browning, and Miss to Mrs. all that prove Choat had admitted to them she had a at this under her dress pistol time. This alone would authorize to submit self-defense from He danger to and alone had had apparent Choat appellant. trouble; threats all 'for shown to show that went it appellant whom Choat kill. animosity, felt and the he had threatened to person that to also testified before shot heard Appellant he deceased call That wife, me, “Come and them.” to I will bring get part after the Choat was on the saw and while he shooting lying ground, a again Mrs. Choat with her and pistol hand, say, heard The State. Baruett 1915.'] Mrs. Choat will them and told “Bring jet,” I here, get part With him, again. Choat he, not to it to would shoot give appellant, fight., record, previous and the testimony issue submitted the etc., threats to if had not kill the court appellant, failure himself, kill of his from and danger apparent to reverse impelled,

to do so would feel we complained by appellant, that in submitting the case for reason and the court did not err issue the jury. rehearing. all motion This for disposes questions raised threats also made

The evidence State’s would show appellant difficulty after first barn. fatal fig!it On day field returned to Mrs. Choat after she and her husband says field, in the field to work found the mules in that she remained then their home for about minutes working, for forty went she- That on her with and tie the mules. return rope catch Padgitt Jimmie. sons, saw Mr. Mrs. Barnett and their two field, That Mrs. went down in she passed Barnett and Jimmie Mr. Barnett at the as she went into the field. That Mrs. fence she also; husband mules, Jimmie after the and her got from her across husband looked and saw joined appellant coming she appellant the field from the That before word was northwest. passed alone, let shot; then asked him her husband fell. again without shot and her husband saying a word d—n That little, her deceased a husband moved a and appellant called son of would shoot again, said if he bitch, got up threaten, say he would teach him and for deceased not who arm, shot went G—d d—n Dr. Hennen entered left word. blood-vessels; that into the cutting arm several through, pit passed arm made while the wound, the wound was fatal necessarily side. was down by the should

We are the motion for rehearing overruled.

Ovenuled. DAVIDSON, Judge. should have I will write later. judgment This been reversed. Judge that for sev- DAVIDSON, am of opinion (dissenting).—I change been reversed.

eral reasons this should have judgment by appellant. ap- venue should have been granted prayed compurgators venue was sworn change plication County. Hunt both alleges all sections practically precincts influential These com- and combination of people. grounds: prejudice county intense in make so prejudice purgators plain it would trial, obtain could not fair impartial as as of Mr. come within that rule well the case. prejudgment fairly for testifies as follows: “I observed that of counsel the Leddy, those names from reasonably 150 scenes the greater portion Eepoets. Texas Ceiminal the killing—the large every close to some of them majority; come the voting precinct affidavits filed contain county; names every box; there have might been from Caddo Mills I don’t remem- seeing any; might ber there have been there very two three but not There were some from the many. Campbell precinct down south Quinlan at of town here and Cash—more than precincts from those from the other I precincts county. suppose Commerce is than twenty-five little further miles from Lone and is Oak in the north- of the east Wolfe is in the northern county. City part of about like miles is county something thirty Oak; from Lone Celeste about thirty-two think, miles, I from Lone Oak—about twelve miles Celeste and about to Lone I twenty Oak. have visited precincts City, Celeste, Wolfe Caddo Mills, Floyd Campbell pur- pose matter have to several hearing discussed, but I been since precincts June 26th.” The occurred Lone killing Oak, at southeastern of the portion miles, is about ten county. Campbell seems, north from Oak. J^one The other towns mentioned villages and are in different sections from which the county, compurgators came. The affidavit dis- controverting signed Leddy, the Mr. trict Mr. attorney, Thompson, Owens, Turner, Harrell, stating usual ground, towit: these men were not informed sufficiently know whereof in their affidavit. they There lot speak quite introduced with reference to and where compurgators many live who they were. The evidence they overwhelmingly shows of them were the most citizens men among of the respectable county, of integrity, informed, well them far reproach above so placing as their integrity character is concerned. affiants for the State show, I record, as sentiment understand this defendant against the extent such an venue should have their changed upon statement. Mr. instance, Harrell, signed For contro- State’s who “I don’t affidavit, says: who affidavits verting signed know I don’t application. know to know opportunities the conditions live; where have parts county gone or I they only give condition of the over I live my opinion county where in Wolfe The sentiment to be City. against seems hard defendant pretty . . . City. them- Wolfe I heard people express in the are selves case have been unfavorable to defendant; there haven’t I heard themselves people community express one other. as So far the' mry knowledge of the sentiment from way heard) I have unfavorable and the defend- expressions Mr. Turner at ant.” lived Commerce. Some of at- names compurgators appellant’s application tached lived place, these Dr. Acker, are Mr. Mr. among Smith, Wheeler Wynn, Dr. there, Knight, bank L. L. M. Dave Wright the cashier J. Turner “I could not tell Dr. Finley. says: Mr. whether Wheeler’s you the sentiment of country opportunity knowing people than mine; better around more than do.” goes around I mentions a number signed Then he whom knew also great com- 1915.] v. The State. had an knowing know and haven’t opportunity “I don’t

purgators. they any as to knew of knowledge prejudice whether their means a defendant, against him; or of combination I against suppose mak- advised about it. me not be have known they could men- that those this affidavit I didn’t mean say people you ing defendant, against didn’t themselves of any tioned know prejudice I made in my judgment.” only He Mr. at Owens, affiant, another he lived Commerce. State testified determine as says: “I have no or means I can knowledge whereby toas sentiment in this county out the finding opportunity know Barnett; the Barnett I don’t against defendant, case Bob county; about extent which were anything acquainted they I didn’t as to whether knew of combination any know they defendant any prejudice or not and don’t knew of they know whether the com- lot of against the defendant.” This witness takes a up quite mixed with them to be men purgators, showing mingled who a shows deal. I do not recall evidence which people great County. are uninformed Hunt compurgators of conditions in fair- make it could not a get witnesses clear witnesses said trial of the impartial county. Some State’s trial, a fair some seem they thought could get impartial think secure any man a fair trial if could could get impartial they is as it jury. testimony, I do not purpose follow up quote at record. It covers very voluminous, least 150 covering pages has above, the whole of the is fairly of which county, quoted been mentioned Mr. Leddy in his statement. combination,

As to the different shown about 176 parties contributed to a fund to that the firm counsel to employ prosecute, of Messrs. Clark & consisting employed prosecuted Leddy case manner, court, efficient briefs as well in this very filing It is one member of firm argued orally case before this court. also automobiles shown that at several just after homicide Lone Oak in going were or used employed citizens of Lone Oak prominent Greenville, Court, county seat at the District presided where over Dohoney, They was then session. demanded by Judge He that he defendant. empanel grand jury try once and returned, but indictment was empaneled grand jury and hill of contin- This continued. application the cause was with- uance was is shown county. more or less criticised over history out is the first instance in controversy empaneled. being over presided Judge Dohoney grand There successful. These vigorous parties prosecution, over the some extent is evidence visited show tending head- funds, published Some of county papers etc. getting up language in strong deprecating lines the head-lines and articles under circulated vigorous language, the homicide and pretty used the fund list of contributors among Speaking people. on the “There are 172 names counsel, says: Mr. Leddy for employing .Reports. Criminal $10 -list and the down—I subscriptions ranged $10 think The list of influential' citizens of that pre highest. composed cinct,” list, shows and cash be names, Then follows the 172 names are the number sides, mentioned, others whose not by making “W_. F.” also is down as It is and one whose name just put ' in about 6000 jurors shown this connection there were qualified extent the basis to some in Hunt This seems to have' formed County. a from occurs to me venue was not why change granted. of this court a before this if there has been ease of record reading Cer is the occurred, this ease. ought which a venue to have change of trial before an impartial jury, a man is entitled to a fair tainly district saw judge statement that the by this is not answered fairly district any question who tries Every judge and heard the witnesses. thinks is right decides what he sees the witnesses and hears and favor decides in of the witnesses and it. he heard about If because trial, have fair right a man’s a of is to he the criterion the State deprive that would of fact, would useless to appeal; be the impression been under always have benefit of I appeal. rulings reviewing of granted purpose of appeal to see final he happens them because and not make trial judge conclu is to be paid deference and hear the witnesses. Great is reasons. This for good trial in matters on appeal sion of court collated Mr. cases have been by of the always regarded. Many be tersely He states in section 199. on Law Branch his work Criminal “If court, towit: this a followed by rule that has been and correctly if culled and a fair might get jury shows that defendant testimony likely, not be selected, usual way but if particularly selected State, Barnes v. granted. shown, motion should is prejudice W. 43, 28 S. Rep., Texas 882; State, Randle 34 Crim. v. 59 S. W. Rep., under always rule which I have He also states another 953.” Rep., various this court its by followed correct but only to be stood rule, it is or if case is thus stated: “If prejudged, That decisions. is guilty, is that defendant sentiment crime, and prevailing a notorious Texas Crim. State, 34 Randle v. granted. should be change venue Rep., State, Texas 39 Crim. Meyers v. W. Rep., Rep., 953; 28 S. State, v. 296; Faulkner State, Rep., Texas 500; Crim. Gallaher v. 415; Crim. State, Rep., 47 Texas 311; Alarcon v. Texas Crim. Rep., State, 44 v. 629; Cortez State, Rep., 51 Texas Crim. Dobbs v. 882; Gallagher W. State, Barnes 176; Rep., Crim. S. 45 Texas Crim. State, 50; Smith v. 55 Texas Crim. Rep., 405.” sentiment is to the effect of this testimony bulk great im- fair and get he could so strong these number of trial. might testimony quite I repeat partial it would them are in the record witnesses, the facts as stated testimony places of the weight The great no useful serve purpose. so far as witnesses going of the trial, many a fair

beyond hope appellant, favorably anybody speak never heard say they Babnett v. The State. 1915.] tliat ease; great he had bad and the ought be hung, is that The writer ought to be weight punished. shown that the combination was sufficiently clearly .the under- entitle reason. As change venue I stand Enough this fact if at all, record controverted. barely, show, has this issue been stated to testimony bearing action of appellant, the 176 who money subscribed prosecute Judge vigor shown in that action before people appearing Dohoney organization grand demanding defendant, immediate judgment,' prosecution my conviction a change as to “such combination existed sufficiently required venue strengthened from that But these facts were viewpoint. evidence in the record as it. to follow I read I not care do question further.

2. The two stand- intermingled charges self-defense points. First, from the defense wife; second, defense the of appellant’s of- submitting himself. was taken the Exception charge to self-defense as to the this defendant I believe proposition personally. stated asserted. this it be correctly issue, may Briefly, upon bearing land deceased, Choat, Harrison rented appellant obtained or from acres, fifteen lay residence, adjoining appellant’s consisting which was in or planted contract, cotton. terms of rental The whatever it the land termed, be Choat was cultivate were that to may appellant to furnish and tools the team and feed for the team all those contract words, sort of termed a things. is what is on the halves. them one of had been trouble between about There teams homicide, to in prior day which Choat (deceased) given day On able to do so. beating, being physically At homicide his oats. boys and one of were hauling the noon hour fed their a lot or barn took a “siesta.” team in When he he mules, awoke was informed which he of the fact his had been out wagon oats, and were working hauling gotten deceased, in the son cotton. His mules, sent for the who hoeing cotton, refused to mules, let he would get stating them. get who boy returned informed father, “Ho, would The wife will go. said, you get trouble, into I will go.” So, she took one of the little and went tried hoys after mules and clean, them the lot. -the was not get back It seems cotton field it, there was grass eating were themselves mules enjoying But that as it grass. be the wife and down and may, went hoy mules, deceased undertook them from sent prevent getting his wife to the for a house While she was Barnett rope. Mrs. gone her little to drive mules to lot. boy trying Appellant, the attitude of seeing and went the direction things, got gun where they were. The De- self-defense itself. here asserts proposition ceased was hoe, Mrs. with an and, approaching uplifted record, shown further from map getting appellant, away with his side perhaps appellant; he was distance partly Reports. 76 Texas Criminal not towards away, but from not coming going and was appellant, him, demonstration making any towards towards going Mrs. Bar- nett with hoe, an shot. uplifted whereupon appellant As understand I Texas, the law not raise does the issue of self-defense as Deceased appellant personally. was not attack or threat- making any one attack, but was ening appellant, an making with standpoint, appellant’s wife hoe. That hoe used weapon man deadly strong, vigorous like deceased is shown been, to have not ought seriously. be at least not If questioned, had been have evidence any the fact suggesting appellant may been in at attack time, danger that deceased was making have directly indirectly the court would upon appellant time, correct the issue of self-defense from both submitting stand- not, He should from its points. 'however, divert the case merits it, into another issue least put the facts. To say made case, is not and it to believe may influenced jury court did not believe the was attacking self-defense theory wife, when he included an attack- the husband of the charge wife. Just far a how favorable under circumstances charge ordinary erroneous or ought be not is sometimes but it say, difficult not to a difficult which would to solve that divert a from its case merits real issue would tend issue a false to minimize the real issue in legally the case and treat the accused unfair. The trial court does not defendant believe that his wife was therefore, he into the case attacked, and, being put issue made another the facts. were authorized so believe. I do not care to this further. pursue

As also hurtful self-defense, in this connection on the court gave charge threats of the defendant. threats, the the life applying This intensifies the above error. The the gave following charge at the the request State: “You are that, homicide, running instructed at the time of said the at large Hunt of mules was laws County under prohibited this State.

“If, therefore, believe from the the defendant’s you evidence mules entered enclosed lands Harrison Choate occupied leased and by Choate, and were about the the said Harrison roaming cultivated land of without instructed the consent Harrison then are Choate, of said you said the said Harrison had lawful to right impound Choate stock and retain the until it wa-s determined same his possession three justice peace disinterested freeholders appointed of said what done to the crop if had been precinct damages, any, he was entitled fees, Choate said mules if any, and what to under the for said stock.” law impounding should charge was reserved to this this Exception charge. Why understand. into the writer does not or how case the given, got stated. already made with the defendant on terms Choat had contract words, In he was on halves. The mules had into other cropper gotten v. The State. 1915.1 into rather, gotten and or had fence broken accidentally, field had He the mules had not reduced possession. the cotton. Choat not entitled them, had and was them; he not impounded control of did not true, if right impound, under statute. The fees right mules. recapture right prevent appellant’s

give statute it. The civil doing do a different from actually thing quite when at large stock running authorizes the and up impounding taking impounds after the stock is in force, party gets possession law dam statute, assess stock, he have his as néighbors, provided may He But do how case. I not understand ages. question down after until sent had stock, impounded grass grazing stock no attention to them. were They paid out, take them had refused to let the among cotton, boy and deceased obtained he had not reduced them to If deceased had possession. them, mules, question possession holding possibly is not clear even be in the the writer might case, but mind of treated were facts under the facts of case. These question tenant, below as of landlord and relation constituting relation, take of deceased to out of that grew stock up stock, as deceased had taken given though impounded up tenant which entitled him to fees. do not understand this I be showing and in contract, way, authorities all hold the other length. not. The authorities might be collated and at copied It will sufficient to and refer to quote others, one 565, Wil Rogers all in harmony: McGuffey, Texas, Judge liams, Court, for the makes this state rendering Supreme ment : of a contract sued recover breach Rogers damages “McGuffey land, for the rental of acres rented alleging fifty six contract,

land of his broke pursuance year land, $6, acres stubble' worth reasonably expense $270, with the in the sum contract connection land con was breached on the terms of the January 1901. That under land, teams, farming tract tools, to furnish the appellant, Rogers, teams, for the and the of corn cotton implements, crops food were between claimed equally divided landlord and tenant. He the value of one-half of as his damages.” what he would have raised

itSo will be seen the terms the rental the instant contract in case those in case certified practically quoted. the Court involved the Supreme damages, the measure and in proper court, Williams, the said: through Associate Justice speaking

“In the the case court measure Capps applied generally the consid- to renting ered be cases where contracts for the applicable ordinary or cases, of land are broken. In such this letting measure is applied fact because loss compensation for the sustained gives actually the absence of But special damages. contracts like the one in question have for additional elements. The into them parties entering stipulate shares in the to be as from produced the benefit be derived crops to Beports.

592 76 Texas Criminal them. The land, the owner of the expects share reserved himself to a return for the cultivation of The outlay. his land and his other benefits expected the other by party employment the stipulated return for his and sometimes home To labor, a for time. deprive the him of these benefits is to him of in the deprive con- which, very tract, both to it parties he shall receive. contemplate would seem follow necessarily damages should be for what compensation he thus In lost. such a contract the enter into a business parties joint n enterprise and what shall the When stipulate be to each. advantages one the wrongfully those deprives advantages should be him for that required compensate which the contract stipulated should have. objects of the contract those have close analogy and, of a in so for far as the labor one partnership employment is the one of the parties contract for service.” purposes, personal shows not a contract in the This rental accep ordinary term, tation the of a joint nature tenancy partnership. In v. into Rogers 108 S. is Frazier, 727, gone W. Rep., question fully. That more case holds it does not is constitute what termed is landlord tenant. Deceased in this case is what relation termed in the books and in decisions The deceased “cropper.” had no such interest in this debarred property tenant of a joint partner after business. looking had an interest in the He which would crop have entitled either damage against trespass suit or for others. by Texas, authorities in them, as I both understand Supreme Court and the all Courts of Civil to the same Appeals, go extent. One other Co., make. be well to In quotation perhaps might Doke Railway 1195, Doke Rep., land, S. the owner of the suit being brought W. railroad the destruction of .against company growing crops cul tivated tenants, so-called tenants also brought separate suits and when railway company, the cases came for trial the court charged that, were consolidated and under the they evidence, would not be authorized return a verdict favor of damage Doke for resulting Pass plaintiff injury crop. the court ing charge said: is, Doke,

“The us determine did the have an plaintiff, ? damaged interest overflow the land This crops ques owner, tion is be determined from the contract between the land Doke, tenants. If he had no interest respective therein, court correct. If he had an interest in the crops, 341, correct. In the case of et Horseley al., v. Moss Texas Civ. App., this court 1116, 23 S. held contract which the landlord W. to the tenant team tools, to furnish farm and feed to do work in 'which was making crop divided between equally landlord and tenant the owner of the gives land interest specific a landlord’s lien. crops, merely Tignor case of Civ. S. W. Toney, App., District where farms that, First held one the land of another under y. 1915.] 593 The State. is to the land owner a of the give crop which he agreement by owner, such in the absence of land, stipulation raised on the tenants in common in the contract otherwise became providing, same effect is the recent court holding To the crops. 102 Caldwell, C. & S. G.,

cases S. F. Co. W. Ry. Co.,& 727. This is accord Rogers v. Frazier Bros. S. W. Am. & Law with the weight authority. Ency. great Eng. There is in the in the case of T. & (2d ed.), p. nothing opinion Texas, 570, holding. P. Ry. Co. contravenes this Nayless, It follows was charge error.” correct, charg-

If authorities are these was clearly wrong The he did with stock. ing reference impounding not in question difficulty the case. The arose over the fact lot, and son were back appellant’s wife mules trying put which had and deceased escaped accidentally, trying prevent them mules. Neither had possession, hut both getting trying secure it. be curious It would announce that proposition joint Texas, tenants or citizen whether tenant not, would be or deprived of after his stock right go when they escaped custody them, and secure because somebody might neighborhood have a chance to catch them for land. Fees prowling upon not allowed for the This is escape, only impounding. confined to the party impounding the stock and after only impounding. stock must caught. first be strike Such proposition that'would the fair-minded man as unfair, otherwise than being legally illegal at least it unjust, strikes the mind of the writer that way. If the asserted in proposition correct, horse every time mule or or a cow of citizen he is escapes debarred the right privilege after going therefore, it. escaped has, property He securing lost his right until recapture some takes the property neighbor stock up and them in puts a pound and him to the im- compels pay fees, etc. pounding Such construction impounding law will find no warrant in any anywhere decision that I have found as heretofore written, nor ought so, it be held be the law. If stock escape of forfeits capture. There is another in the case. The character reputation seems to have been an issue in the case some way, testimony was introduced to the effect some of testimony went to show he was man of peaceable disposition that line his along reputation good. if it had here it Perhaps hardly stopped error, objection but some admitted over appellant as to the individual of witnesses about what knew about- deceased. Objection was to all character urged testimony. contention seems to some evidence was because introduced which therefore be- legitimate, they could possibly go words, yond prove facts inadmissible. In other because admissible, testimony is therefore is no error to admit inadmissible Vol. Crim.-38. Bepobts. Criminal 76 This is not correct. It would a hardly be contended that

testimony. mán, as to his views of of a witness could the character personal testify circumstances at least. Witnesses as to under testify could ordinary do because that did not render ad- could reputation, general testimony. missible other inadmissible trial, has not a am convinced fair firmly I reversed remanded. have been cause ought judgment v. The

M. T. Ritter State. 12, May 3526.

No. Decided 1915. Forged Instrument—Pleading. 1.—Forgery—Indictment—Possession a pleading; An must tested itself under the indictment law as supported can be neither nor as such what evidence introduced defeated trial, rule, forgery when tested was on the the indictment for pecuniary obliga- sufficient the instrument alleged showing and that a one tion, the same was sufficient. Z.—Same—Explanatory Averments—Indictment. Where, upon necessary explan forgery, trial of the indictment made the instrument, atory alleged was sufficient. forged averments same 52, State,

Following Rep., Chappel other cases. Texas Crim. —Same—Sufficiency of the Evidence. 3. Where, upon forgery forged possession trial having instrument conviction, there was with intent to sustained the passing, use in the evidence no reversible error. —Same—Charge Court. 4. Where, upon gave forgery, charge applicable trial there, ease, no error. facts of the reversible —Same—Charge in District Court. of Court—Practice 5. jury necessary is not court to tell the statute what the law, general upon forgery court’s lay principles down and where every trial of defend-, necessary single fact show

charge required ant’s to believe sufficient, no error. there was reversible guilt and otherwise —Same—Evidence—Incorporation. 6. Where, pleaded and failed to upon forgery, guilty trial defendant incorporated, it duly plea alleged company under was not

file a oath Following White incorporation. prove not incumbent State such State, Crim. and other cases. 61 Texas —Same—Variance. authority alleged Naylor to issue the indictment one Where S. indictment, certificate, made discharge which was certain allegations in the name variance between there was contention record, Following error. was not borne out proof and other cases. Texas Crim. Feeny v. Anderson. Tried below before Court of District Appeal Prince. John S. the Hon.

Case Details

Case Name: Barnett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 31, 1915

Citation: 176 S.W. 580

Docket Number: No. 3481.

Court Abbreviation: Tex. Crim. App.