44 Tex. 356 | Tex. | 1875
The objection that the venue
Although the deceased may have been in the act of firing upon appellant when he was shot, and would have been guilty of murder had he killed appellant, it does not necessarily follow, as his counsel seem to insist, that the killing of the deceased by appellant must, from this fact, be regarded as an act of self-defense. If so, the survivor in all cases of mutual combat could justify himself upon this ground. The article of the code to which we are cited (568) is not applicable to cases where the killing is upon malice, although the deceased might have been equally in the wrong. It is only when the homicide is inflicted for the purpose of preventing one of the offenses mentioned in this article, and not where the real motive and design is to kill
What has been said in response to the argument that appellant was justifiable, because the deceased was in the act of perpetrating the offense of murder, is equally applicable to what is said of his right to protect himself against an unlawful and violent attack. (Code, 570.)
Appellant has no just ground to complain of the charge. It presents a full and elaborate exposition of the law applicable to the case. It may be that it was extended to greater length and went move into detail than was necessary ; but we see nothing in it calculated to work prejudice or injury to appellant. It is insisted that it does not properly discriminate in the circumstances which sustain the defense of justifiable homicide under articles 568 and 570 of the code. In support of this objection we are cited to the case of Horback v. The State, 43 Tex., 242. The facts in the two cases are altogether dissimilar; consequently, while the charge, if the same, might in the one require a reversal of the judgment, it would not do so in the other. But admit
To show the killing justifiable under article 568, 1st, it must appear by acts, or by words coupled with the acts of the person killed, that it was the purpose and intent of such person to perpetrate one of the offenses named in this article; 2d, the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.
By the instruction the jury were told that, 1st, homicide is permitted for the purpose of preventing an unlawful and violent attack on one’s person of such a nature as to produce a reasonable expectation or great fear of death, or great bodily harm about to be inflicted; 2d, the killing must take place while the person killed was in the act of making such unlawful and violent attack. Thus far the charge,
The charge is almost literally the same as was given in the case of Isaacs v. The State, 25 Tex., 177, which received the approval of this court.
We see nothing in the facts which made it incumbent on the court to give a more full and explicit charge as to reasonable doubt that it did, or to require the court to have instructed the jury that no verbal provocation of the appellant would justify homicide, or even an assault and battery by the deceased.
The facts admit of but one construction. Appellant did not seek the deceased for the purpose or with the expectation of adjusting the difficulty in a peaceable manner. He evidently intended and designed a combat with deadly weapons, or to compel the deceased to succumb and show the white feather. He forced the quarrel to its final and fatal catastrophe, when, on that occasion at least, he might have easily avoided it. Though the deceased may have been equally or even more greatly in fault than appellant, that does not excuse him.
There is no force in the objection that the judge who presided on the trial of the case was not authorized to hold the court. The statute by which the court was created expressly declares that it shall be lawful for the judge of said court to exchange or alternate with any district judge, as provided by the Constitution and laws. (Acts 1873, p. 210.) Certainly a judge is not limited in the discharge of the functions of his office to the period of time during which the courts in his own district are being held. The right of one judge to change or alternate with another is in no way
Misconduct of the juror is not made an absolute ground of new trial. But when it is of this character it is addressed to the judgment of the court whether the misconduct of the jury has been such that the defendant has not received a fair and impartial trial. And though the decision of the court refusing a new trial, asked on this ground, is subject to review as in any other case where it is intrusted with the exercise of a judicial discretion, still we think this court should defer much to the judgment of the court below, in view of its better opportunity for observing and knowing all the facts transpiring during the progress of the case or developed on the hearing of the motion. For this court to reverse a judgment on the ground that such a motion has been overruled, it must be made plainly to appear that appellant has probably suffered injustice or sustained some injury by the ruling on the motion. We are unable to see that such is the fact in this case. The affidavits offered in support of the motion shows with reasonable certainty that one of the jurors who tried the case had formed and expressed an opinion of appellant’s guilt before he was summoned as a juror, and could not be said to be an impartial juror. If such was the fact, and he answered the questions propounded to him when the jury were being impaneled so as to qualify himself to sit in the case, it may well be held that he was guilty of misconduct as a juror, for which, a motion for a new trial upon this ground could be properly granted. But the matters alleged in these affidavits were positively denied under oath by the juror. And an explanation is given by him which tends to support his statement and account for the discrepancy in his version of the matter and that made by the other affiants. It is true there are two affidavits in support of the motion to one in rebuttal;
It is objected that the affidavits of the juror whose conduct was impeached should not have been received for his vindication. The code expressly provides that the voluntary affidavit of the jurors are admissible to prove or disprove the alleged misconduct. The language seems to import that the affidavits of all the jurors are admissible, though the alleged misconduct might affect them all. That it is the juror who makes the affidavit who is charged with misconduct may detract from the credit to be given to his affidavit, but this is no ground for its exclusion. The juror might he the only person able to explain or deny the truth of the charge. If he could not be heard to do so, a new trial could always he had by an affidavit alleging admissions or statements of the juror to the affiant when no other person was present. A rule of such dangerous tendency cannot be sanctioned unless imperatively required.
The judgment is affirmed.
Affirmed.