31 S.W. 667 | Tex. Crim. App. | 1895
This is a conviction for manslaughter. Appellant relied upon self-defense, under article 572, Penal Code. The court submitted to the jury the law applicable to a mutual combat in which the accused obtained an undue advantage of the deceased by resorting to weapons. The evidence both for the State and defendant establishes beyond question, not a mutual combat, but that appellant did not desire, in fact was forced into the fight, and acted in self-defense. Now, whether the nature of the attack was such as to bring the case within the provisions of article 572 was a question of fact for the jury, under proper instructions from the court. Counsel for appellant objected to the charge relating to mutual combat, because no evidence presented this issue. The charge was not demanded by any evidence in this record. Two veniremen were challenged because neither were freeholders in the State or house holders in the county. Curry lived with his father, and occupied a room in his father's house by his permission, but he had *114 no right to the room, as against his father. Of course the man slept in a house, but this did not make him a householder. Swearengen was a clerk, his employer furnishing him a room at his house and giving him a salary. He ate and slept at this house. He was no householder. The court overruled these challenges, and appellant excepted. Appellant exhausted his peremptory challenges, and then challenged one B.F. Foster peremptorily. Foster, on voir dire, stated that he had formed and expressed a fixed opinion in regard to defendant's guilt, that it would require evidence to remove that opinion, but notwithstanding such opinion, he would try the defendant by the law and the evidence. The court overruled the peremptory challenge, because they were exhausted. Appellant had been wrongfully deprived of two of his peremptory challenges, or two challenges for cause, by that court, in holding Curry and Swearengen householders. Now, whether Foster should or should not have been rejected for cause, as was also requested by appellant, he was evidently such a man as would call loudly for a peremptory challenge. If his opinion was fixed — settled — that defendant was guilty, no wise man would risk his ability to discard it. The court should have sustained appellant's challenges to Curry and Swearengen for cause. This was not done, but appellant was forced to expend two peremptory challenges on them. The error could have been cured by returning to appellant peremptory challenges with which to rid the panel of objectionable jurors. This was not done. We have no time to discuss the other questions raised on this record. Same will not arise upon another trial. The judgement is reversed, and cause remanded.
Reversed and Remanded.