Appellant was indicted in the District Court of Rusk County, charged with the murder of one W. T. Hemby. On trial he was convicted of manslaughter and his punishment assessed at two years confinement in the State penitentiary. The evidence shows that on the 28th day of September, 1907, in the little town of Tatum, a misunderstanding arose between one Everett and Jim Tatum which resulted in a general row in which appellant was incidentally involved, although not the originator of the difficulty in any sense, and in which one Willis Menefee became the active champion of the station agent, Everett. This difficulty originated about 2 o’clock in the afternoon of the day named. The deceased was not present, had no part in it and in fact was not in town. The killing of Hemby by appellant occurred near a hotel in-the town of Tatum about 8 o’clock that night. As is usually the case, there'is some decided discrepanejr in the testimony, but the facts seem to be that Hemby came to the hotel where appellant was and made some inquiry about the. difficulty earlier on the same day out *637 of which grew a wordy altercation; that appellant had a gun at the hotel but did not have it with him when he first met and talked with deceased. The discussion between the parties became heated and appellant went to the hotel to get his gun and after he had got same, Hemby left the hotel, went oif some distance and returned with a Winchester rifle which he had in his possession when shot. There is strong evidence tending to show that appellant acted in self-defense. The trial court recognized that this issue was in the case and submitted same in a charge not subject to serious objection. There are a number of questions arising on the appeal, but we deem it unnecessary to discuss but two of them. We think that the case must be reversed on at least two propositions.
1. Over appellant’s objection the following testimony, substantially, was introduced: A witness by the name of Holtzelaw testified that on the afternoon of the killing and some three hours before the time it occurred, the appellant went to his, Holtzclaw’s, store, called for car- • bridges and made threats to the effect that he had six shells; that four of them were cut and that when these shells were gone, he would have some of them (meaning that he would kill some of the crowd). By the witness MhNaughton the State proved that appellant went to his store on the same afternoon and offered him. $10 for his shotgun. It was proved by one King that on the same afternoon, he, King, saw appellant sitting on a box at the depot and heard him say that he had a gun and six shells and would just as soon be in trouble as out of trouble, and that if they wanted to shoot with him he could shoot as quick as they could. The witness Williams testified that on the same evening that Hemby was killed, but sometime prior thereto, he saw appellant at the store of Dr. Tatum with a gun and heard appellant say he had a gun for Willis Menefee, and if he would come out of his store or stick his head out he would shoot it oif. This testimony was objected to on the ground that it appeared from the evidence that a difficulty had just occurred between Everett, Tatum and Menefee in which the appellant participated, and also that it had been shown to the court that a gun was used in said difficulty but that the appellant did not use the gun, and that it appeared that Hemby, the deceased, was not in said difficulty, was not in town and that nothing occurred between him and appellant. Therefore, the appellant objected to said testimony because it so appeared and because same was hearsay and was immaterial, and especially because it referred to and was part of a different difficulty from that in which Hemby was killed and because it was an indirect way of proving the appellant’s bad reputation, and because such testimony tended to show another and different difficulty from that in which the killing occurred and was very prejudicial to the appellant; and further because it did not and could not have any reference to Hemby. These objections were overruled and the testimony substantially as above set out was admitted. We think, at least, a part of this testimony was inadmissible. It is obvious that so much of the testi
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mony as contained a threat to shoot Menefee if he would come out of the store or stick his head out could have thrown no light whatever on the killing of Hemby who was in no way connected with said difficulty, was not in town at the time and who was, as the evidence all discloses, entirely friendly to appellant. There seems to be two lines of decisions in this State, and perhaps the court has not always been very clear in stating the rule. We understand the rule, however, well settled that wherever threats to do violent injury are offered, ordinarily they are never to be permitted in evidence, unless it is reasonably apparent that they were directed towards the person with whose death thereafter the party making such threats is sought to be connected. This statement of the rule, we think,"is sustained by the decision in the case of Hall v. State,
42
Texas Crim. Rep., 444;
2. We think the seventh ground of appellant’s motion for a new trial imputing misconduct to the jury should have been sustained. This ground of the motion, in substance, charges that while the jury were deliberating, and before a verdict was reached, one Freeman, who was on the jury, told the rest of the jurors that he had just recognized this defendant as the same young man who was tried a short while ago for a misdemeanor in this court house and acquitted, although in fact he was guilty; that he was a bad fellow and it would not do to acquit him. It is averred that this misconduct was vicious, and was the introduction of testimony against the defendant in his absence, and to his prejudice, and on this account he was entitled to a new trial. .This ground of the motion was supported with the affidavits of seven members of the jury trying appellant. The affidavit of one of the jurors, C. C. Gage, was to the effect that after the jury had reported three times to the court that they could not agree and before they had agreed and just after they had returned to the juryroom after said report, that the juror Freeman stated to the jurors Milstead, Bowles, Brown, Cooper and Wallace, and he does not know how many other jurors heard said statement, that he had just recognized the defendant as the person who had recently been tried in the county court for carrying a pistol; that he was a juror in the county court at the time; that defendant waived a jury and was tried by the court, Hon. S. J. Hendricks, one of the defendant’s counsel in the present case; that he had heard all the evidence and was convinced from same that defendant was guilty of the unlawful carrying a pistol but that said Hendricks was partial to defendant and acquitted him; that the evidence in said pistol case was about as follows: Defendant was at a party and was out at the gate when a pistol fired, and the man who gave the party came to Sam (appellant) and asked who fired the pistol, and the defendant said that was not me but was the person who just went off xip the road; the man of the house went back in the house and soon a pistol fired twice and he returned to Sam (appellant), and asked again who fired the pistol and Sam (appellant) said, “It was not me bxit here you take my overcoat, my pistol is in it and do not let any person have it until I call for it.” Said Freeman
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further said that the defendant was a man of bad reputation and needed something to take him down, and that if he was not convicted ■ that he would go back down there and kill some one else. Said affiant further says that at the time said Freeman made said statement about the defendant that the jury stood eight for acquittal and four for con-, viction and up to said time affiant was sure that defendant would be acquitted by the jury, but after this statement affiant cannot say whether said statement influenced him or not, but that he does know that he now believes that defendant should .have been acquitted. Some other affidavits were attached to said motion not quite so specific or so much in detail, but to the same purport. On hearing the motion the testimony of 'a number of the jurors were taken. This testimony briefly summarized is as follows: A. A. Bowles testified that he wanted to correct his affidavit attached to appellant’s motion so that it would show that he tried the case on the evidence and the charge of the court, and was not influenced by the statement made by the juror Freeman about the defendant being a bad boy, and having been tried in the county court for carrying a pistol; that he did not hear any of the jurors mention the fact that the defendant did not testify. The juror Milstead testified that he tried the case according to the law and the evidence, and was not influenced by the statement made by the juror Freeman about the defendant’s bad reputation, and having been tried for carrying a pistol in the county court; that he did not hear anyone mention the fact that defendant did not testify; that his best recollection is that Freeman said if defendant was not convicted that he might go back down there and kill' some one else. L. A. Harmon testified that he was one of the jurors who tried the defendant and that he tried the case according to the law and the evidence; that is, he thought from the law and the evidence that the defendant was not guilty of anything, and should have been acquitted, but agreed on two years as a compromise in order to make a verdict. He further says,
“I
cannot say' whether the statement made by the juror Freeman influenced me or not. I did not hear any of the jurors at any time mention the fact that the defendant did not testify.” It was proved by another juror, Oscar Goodlett, that he tried the case according to the law and the evidence; that he thought the defendant was entitled to a verdict of not guilty, but agreed to a conviction for two years in order to compromise and agree on a verdict; that he did not hear the juror Freeman make any statement about the defendant having been tried in the county court for carrying a pistol and having a bad reputation, nor did he hear any of the jurors at any time mention the fact that the defendant did not testify. The testimony of another juror, A. W. Wallace, is as follows: “I heard some one of the jurors mention the fact that the defendant did not testify, but do not remember whether it was before or after we had made a verdict; I cannot say whether the statement made by the juror Freeman about the defendant having been tried for carrying a pistol and having a bad reputation, influenced me or not. When we
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were trying to get some of the jurors to come to ns and acquit the defendant he began this statement, and I felt he was not treating the defendant right and I walked away to a different part of the room and did not hear all that was said. I thought that the defendant should have been acquitted of any offense, and so maintained that position and held out for an acquittal until the court had sent for us the fourth time, and it was then past eleven o’clock Saturday night and I understood from what the court said to us it was our duty to make some concessions and reach a verdict; that the case had already cost the county $400. We afterwards made a verdict, but I was not satisfied with the verdict and am not satisfied with it now, and 1 cannot say that 1 made my verdict on the law and the evidence. The court did not intimate to us whether he thought the verdict should be for conviction or acquittal.” Charlie Gage, another juror, testified that he did not hear any juror at any time mention the fact that defendant did not testify and that he could not say whether the statement made by the juror Freeman influenced him or not, but does know that at that time the jury had reported several times to the court that they could not agree and the court urged them to agree on a verdict and that they soon made a verdict thereafter. He says, further, “1 was not governed by the evidence in making my verdict, but made a concession on the suggestion of the court that it was our duty to make a verdict; that it had cost $400 to try the case.” He states, however, that the court did not tell the jury nor intimate whether the verdict should be guilty or not guilty. Further he states, "I believed then and believe now that the defendant was not guilty of any offense under the evidence, and though I came down with the other jurors and agreed for the verdict to be reported, it was not my verdict. I was not satisfied then and am not satisfied now about it.” Another juror, C. P. Brown, testified that the statements made by the juror Freeman did not influence him, but adds further, “I do know that we stood eight for acquittal at the time the statement was made. I cannot say that I made my verdict on the law and the evidence.” That this testimony evidences and chronicles such misconduct as ought, with any free people or in any enlightened community governed by law, to set aside a verdict, we do not for one moment doubt or question. We undertook in the case of Smith v. State,
3. The action of the court in many other matters raised on appeal, we think is correct. The charge of the court is a clear and lucid presentation of the issues and sufficiently, as we believe, presented all matters arising under the evidence. For the errors above set out, the judgment of conviction is set aside and the cause remanded for a trial in accordance with the laws of the land.
Reversed and remanded.
Brooks, Judge, absent.