*1 1924) v. Parker would it would seem that he standpoint, from his
to appellant unlawful attack even defend himself such right have life or serious believe it result the loss of he did not though In a the court be called on might case bodily injury proper him. force, but of self-defense right on the use of excessive improperly should be restricted. will be and the
For errors mentioned the reversed judgment cause remanded.
Reversed remanded. C. The State. John No. 7255. Decided October 1923.
Rehearing May 10, overruled 1924. Jury—Selection Summoning 1.—Assault to Talesmen. Murder— of-— jury, regular panel In the 'selection of a before the has been exhausted apparent panel 'regular it was that a could not from secured judge suggested appellant’s the trial gotten moned, This counsel that a not be could regular panel from and 'that additional talesmen should be sum- agreed, accordingly. to which counsel and it was done presents complaint. n Same—Evidence—Witness—Unresponsive Answer of. 2— responsive question Where the answer of witness is not to- the asked Merely excepting a motion to exclude his answer must be made. presents nothing decision, upon such before trial court for his .answer which error could be claimed. —Same—Special Charges Requested Properly 3. Covered in Refused—When Charge. Main Special charges presenting issues, in court’s submitted main theory apparent danger, should be refused. having Defendants action charge, special charge presenting been submitted main that issue properly refused. Fully —Same—Jurors—Qualification 4. of—Not Naturalized. naturalized, appellants case, fully had That sat on not been Squyres present grounds 242 W. for new trial. See S. did not
Rep., 1021. —Same—Jurors—Passing Difficulty by Scene of Error. —Not difficulty yard, and the occurred in the court house Where the difficulty, passed passing this fact house scene of into and witnesses, present and no than that error to them other did not is presented. Newly Evidence. Discovered 6.—Same—New Trial — evidence, trial, presented Newly in a for a new ! motion discovered character, only impeaching call nor warrant its does not which is granting a new trial. 98 T. C—14.
ON MOTION FOB REHEATING. Same—Charge of Excepted Court—Errors of Omission Must be to. 7.— *2 theory accused, supported by Where evidence, presented .issue to defend an attack that did rViht not him threaten with death or bodily injury, court, by serious and which issue was not submitted trial time, such omission should have been called to attention of trial court at the exception special charge requested A which, taken. did not embrace proposition law, issue, correct did call the court’s attention to the properly refused, bring point and such refusal not did suffice to for- ward for review. from the District Appeal Court of County. Tried be- below Dee Alexander, fore the Hon. R. Judge. murder; from a conviction Appeal of assault of five penalty, years in the penitentiary. State Brozmi, Simmang, Rector, T. D.
E. and N. A. L. for appellant. R. G. Assistant Storey, Attorney-General, for the State. RE, ATT IM O Judge. Appellant was convicted in the District L murder, Court of of assault with County intent to pun- Dee ishment fixed at years five in the penitentiary.
The evidence in the record ample seems verdict and support the will not be' set out or discussed further.
But jurors fifteen being before the court when this case was reached trial, administered to judge the sheriff the oath prescribed Article Statutes, Revised Civil him directed to summon jurors. other The sheriff ’phoned deputies to certain who thereupon caused men twenty-six to attend court jurors at the time directed the court in his instructions to the sheriff. Objection made being that these proposed jurors had been summoned men not sworn so do, the court then directed the sheriff again to summon the re- jurors, number of quired whereupon the men twenty-six who had ap- peared were summoned by the officer and their placed names on the list. jury Without lengthy discussion it would that appear complaint this is not sound. procedure bill that Appellant’s additional talesman complaining were sum- jurors moned and added to list of drawn commis- jury sion, called on before he was to strike the fifteen jurors names of drawn, regularly qualified by Dad been a statement of the learned that when the number of regular jurors was reduced on men, their voir dire to fifteen he suggested to appellants counsel that not could from number gotten said and that additional tales- summoned, men should be to which counsel agreed and it was done In making up list accordingly. the names of the drawn, no presents ground first. This regularly appeared fifteen complaint. failed to drawn commission jurors
Five on the list pro- asked for attachments and the case not appear. Appellant contains ceed until the absent were in. The record brought both from the court’s refusal of suggestion injury appellant not or requests. challenges shown exhausted his any objectionable juror was forced on him. Sweeney Texas Crim. asked to tell what saw did with refer- Witness Fields was he injured shooting. objection ence to Pitts after the No (the party) part was made to this As of his answer the question. witness remarked as he him after helped up Pitts “I he knew me.” shooting: going get This was respon- sive to the No motion was made to question. exclude said remark. *3 but in gestae, any was res event no motion been made to having exclude, decision, there was before the trial court for nothing State, be claimed. error could 253 262. King Rep., W. S. The mere statement of that he that the excepted to part witness’ testimony before the court. brought nothing
The argument in ex- attorney complained State’s bills of ception 5 and as trial qualified Nos. the judge, presents® error.
In the main the learned trial told the fol- judge jury as lows : “If you defendant, believe from the evidence that C. John
Parker, did, Pitts; with pistol, shoot the said H. R. fur- and you ther believe from the that evidence at the time of such shooting demonstration, said H. R. Pitts did make a if as to draw a weapon, that believe, induced the defendant to viewed by' from the you de- he, fendant’s standpoint Pitts, at the time that H. R. was him, about to attack and inflict death or serious on bodily injury then are you charged the defendant had the right to shoot the said H. R. and he would not be required to retreat in order to avoid the necessity, apparent necessity, of the said shooting Pitts; H. R. if so you find will you acquit the defendant.
In this connection are you charged the danger need not have real; been it is sufficient it appeared defendant, so in matter passing upon you this must do so from the defendant’s stand- at the time it point appeared to him.” Analysis this makes apparent that it obviates the necessity giving special charges seeking to present of the theory the accused to act on apparent danger.
That the State cross-examination of a defense witness who said he was watching parties occurred, when it difficulty them,
allowed to ask said witness he was why watching ap- pear legitimate, his answer that it was because of former trou- ble between' the fair parties, would examination and in no appear The way injurious. record discloses that while a wit- appellant was in “I ness his own behalf he swore: had had some trouble with that man and it was reasonable to he was mad.” find no suppose We ground objection to said cross-examination.
That in appellant’s sat case who had not been nat- fully uralized was held not in ground available as for a new trial Squyres W. S. house, into in principal way the court fact to the wit- according used, nesses -onethat practically only led near where the shoot- occurred. An ing effort was made to show that the passing saw and observed the at said which would surroundings place require a new trial granting had they received other than that which came from the witnesses. have care- We fully examined the evidence introdticed before trial court in sup- of the motion for new trial and think it port entirely lacking observed or showing any considered material seen them at said and that the trial things place, refusing grant new on this within ground was his discre- wholly tion.
That juror one Bohemian explained to another language meaning “guilty,” word would seem nowise to consti- error; tute nor would the fact that had after the arrived at their same, verdict and were be called before waiting to to announce that some statement was made about how the lost prosecuting witness a finger.
Newly discovered evidence in its character impeaching would not trial, call the of a new granting and such we consider be that to by introduced in appellant support this of his motion for trial., new unable to
Being agree appellant with in any of 'the contentions made, the will be affirmed.' judgment
Affirmed. ON REHEARING. LATTIMORE, substance, Judge This, in is the testi-
mony: fifty-nine He was years age, 135 weighed pounds, and feet, ten broken, was five inches left height. His hand was and- rheumatism his shoulder which left him right but little strength. business, He went to upon the house and as he leaving was there, Pitts, injured he met the and the party, encounter took place. about half to When the he saw way gate, Pitts and Mrs. Richarz ap- The noticed he gate steps or six within five and when proaching, to it down face, suddenly brought his but hand to had that Pitts his his coat back, pushing time at the same side and a little his Pitts, it down and threw his pistol drew back. The appellant her caught Pitts woman, Richarz. Mrs. the behind jumped is, entirely him, was he front of jerked her in the shoulders and the holding her, The appellant, her over shoulder. peeping behind not see but could the hand, gate, his continued walking pistol behind the woman crouched than he was what Pitts other doing was had; gate, through passed after the appellant mentioned. Just and her hotel, put aside the woman Pitts shoved towards going he rushed out after which appellant, between and himself her, holding The appellant, over her shoulders. peeping behind away. again and backed to attack. fired Appellant Pitts continued down, Pitts again. fired pistol appellant As Pitts knocked the feet, went both they ten twelve when to follow him for continued on top. down with Pitts old, and was six thirty-four years weighed pounds,
Pitts was man and in good a vigorous feet and one inch in He was height. health. court, instructed the original opinion, as set out in the amade
that if that “at the time of the Pitts they shooting believed if a induced weapon appellant as to draw demonstration time, believe, about from his at the that Pitts was standpoint viewed him, that the him inflict death or bodily injury to attack serious shoot,” think right fully had a and this we covered appellant was also special requested. contained in No. which principle original that the Appellant charge quoted opinion contends the evidence for rights did not his under adequately protect were not a demonstra- responsive reason that the fired him shots if tion Pitts as draw a that from the weapon; he, if to at the made a demonstration as appellant, time that Pitts weapon, attempted draw draw own but did not fire weapon, when ;to in the act of so doing leave court house and was yard man, he attacked larger stronger who was fired; not whether then evidence the issue from his raised had a to fire Pitts made demonstration pistol he when right he had a at the to draw a but whether fire weapon, the woman and made an attack time Pitts rushed out from behind that if it be con- appellant. appellant is insisted Pitts’, to dis- rushing upon ceded that purpose *5 Pitts’ intent was not injury, arm rather than to inflict serious bodily he, acted testimony, having known to the his appellant, according strength upon his of Pitts’ and his own weakness and upon knowledge n him, act upon of Pitts in and was entitled to have the rushing instructed upon case, that phase of the and that the charge given was not sufficient. There seems to be that at time question the shots were fired Pitts was rapidly approaching appellant, who was backing away; that when fell Pitts reached the appellant, he to the cause) ground from some and that' Pitts was on him. top
Appellant made exceptions no written to the court’s charge, presented several special charges, one of which reads thus:
“I instruct you that the defendant had the himself protect attack, from violent or unlawful if and find from you the evidence that it reasonably defendant, time, appeared at the viewed from standpoint, case, his and from all the circumstances of the an him, unlawful or violent attack was about be to made and that he drew pistol attack, his himself protect and that defendant, such attack was made on the and defendant shot the witness while said making Pitts was in the act engaged him, said attack upon the defendant not of- would be guilty charged; fense and if so find will defendant not you find the you so guilty say by your and verdict.’”
It was contention view of all the requested the court charges should either have amended his or given which were charges refused.
“When assailant is a more man than the larger powerful and assailed, attack, the latter unable to resist either on account his of inferior natural physical vigor debility or muscular occasioned disease, it through inability that such equally general experience such resist on account would the mind of naturally operate which, assailed to an en- apprehension danger, create reasonably tertained, might justify him in assailant.” Case killing (Ruling his Law, 13, 822, 126, p. 12.) Vol. and cases cited in note Sec.
See, also, 144; A. Bearden 46 Texas R. Crim. L. 3, (N. S.). p. 355. Vol. be that first may drawing pistol his instance without in- wrong
sufficient was in effect grounds, would, so, an If vited attack Pitts. of his degree culpability intent, intent, be measured drawing pistol and if his draw only claimed was if Pitts should might ready he. not in re- weapon, appellant unjustifiable have been wholly did, which, assault the extent he testi- sisting according to his a weapon. Pitts made without How- mony, subsequently exhibiting ever, no on that phase requested. of the facts was above, No. in- Special charge quoted requested, was to a not ferentially of the defense which was em- applicable phase viz., main the attack charge, greatly braced Pitts was of however, it in this superior strength; specific respect em- an braced incorrect instruction. Whether the of the record per- state *6 The mentioned special charge the of the refusal of the mits consideration a the discussed is so pertinent point pre- becomes inquiry. .Whether in- it in question. sented that be reviewed is called may legally an in the of the court quiry charge is this: There omission being thereto, as read the addressed does jury spe- to and no exception in which called the omission and which cial attention is to charge him and to the trial and refused presented judge is special charge reserved, the error review ? This matter for exception duly present 735, 737, 737a, and 743 of the of Articles depends upon construction charge the P. it that before the required C. C. these articles By he is read the and after it is examined counsel shall pre- to sent his thereto in each objections writing, distinctly specifying read, Before the counsel each side shall objection. charge to instructions present have a reasonable time within which to written thereafter, shall begins, judge before the argument written, with charge finally together any spe- read to the as objections cial and all and on account of given, charge, charges made at the time refusal or modification of shall be special charges court, in trial. in motion opinion rehearing This on at Boaz v. 89 Texas Crim. discussed the matter some sufficiently that the in that not length, holding special charge case did of the charge out the the main to direct attention point omission of, complained language: the matter and used this as where spe- “We do desire be understood holding matter, cases cial to some substantial it would not some charge goes it, be erroneous even though objection presented to refuse where the com- charge; yet, because of its omission from the main words, feel that in goes jus- to the omission of few we plaint only courts, to, law ob- and to make effective the referred tice jectionable exception should be out then made.” omission pointed in- writer, opinion fairly
In the of the this statement portrays his- tention of the the statutes mentioned. The legislature writing re- and their no doubt that tory they of those statutes leaves verbiage all procedure by flect the of the purpose legislature prescribe the court shall be made charge appar- substantial faults the main correct at the trial that he judge during may ent to the trial such time error, jury. is read to any negative, affirimativeor before the it is conceived In subject procedure, these statutes on the enacting the con- they it intention the legislature, that was the of jus- the administration promote struction which would advance and it. in the Boaz case defeat The rule stated tice but would not or impair writer, with this accords view. opinion (supra) aware, far been discussed pointedly are the matter had not So we to inform be obtained object being other occasion. The rights against' district an omission judge contains accused and that the sup- accused desires the omission be plied, this can be either accomplished exception charge spe- omission, cifically out the pointing special charge which is so framed as to inform the trial which corrects of the omission and *7 made, the fault of which is which complaint and itself contain does objectionable. instructions are incorrect or In otherwise passing manner, whether or not the matter in a note presented specific must be taken of the fact it presented person possessing the qualities of a and who is informed of incidents of the found, trial by presence thereat. many Numerous cases are recent, them in which the that the matter be principle may presented manner, is, either main by exception to the charge special charges, State, been has them v. recognized. are Walker 299 Among State, 527; State, 515; Boaz S. W. v. 89 Tex. Crim. Charles v. Rep., 534; 134; State, 85 Texas Rep., Crim. v. 83 Rep., Texas Crim. Lowe State, Byrd 399; State, v. 231 Merka S. W. v. 82 Texas Crim. 569; 677; State, W., State, Rep. 226 Medford 86 Texas S. Lowe 237; State, 584; Crim. Rep., Patten v. Crim. Rep., Richard W., son v. 218. might S. Others be mentioned. In the case present no written were exceptions spe- filed out pointing cifically omission from the main any charge, and the re- special quested did not embrace a correct of law. proposition Reverting the charge requested, it it will seen that instructed that a party against has to “defend violent or unlawful attack.” true, This is but the extent to which he defend may depends upon character of the violence threatened as it to the at- may appear party tacked. The latter element is omitted from the entirely requested if it charge; given and had been have been directed to acquit entirely Pitts made an attack and the latter attack, shot regardless regardless of the character and whether it created in mind a reasonable fear of death or appellant’s bodily serious injury. This is not the law and the charge was prop- erly refused. the real question So before us is this: In absence of specific exceptions alleged for an omission therefrom did the requested special charge which did not correct embrace prop- law, submit, osition of and which court was not suffice required to bring point forward for review ? We not think do so. To so hold would annul the referred practically statutes heretofore their place the on the practice obtaining prior passage. same basis motion for Appellant’s new was controverted State Baklik, upon as to the issue Kubena and citizenship heard evidence and found contention. We think his conclusion was heard. supported by
For disposition the reasons we must decline to disturb the made, the case the motion for be overruled. already rehearing will
Overruled. Abney Ex Parte Smith. ON OPINION APPLICATION TO MOTION EOR EILE SECOND REHEARING. LATTIMORE, Judge. decline grant appellant’s appli- must —We cation for permission to file a motion have second rehearing, minor made corrections in our opinion former to reach rehearing points stressed the application. Abney
Ex Parte Smith. No. 9019. Decided October rehearing No motion for filed. Corpus Testing Validity Capias
Habeas Pro Fine. *8 Peace, deputy appellant Where a Justice of the arrested constable country complaint appearance and without entered fine capias pro nullity. fine fine issued collect such is a from the Court Archer be- Appeal County County. of Tried below Hooper, fore the Hon. M. Judge. E. - from an order of of Archer remand- Appeal County Judge County relator to of sheriff. ing custody Caldwell,
Mathis for relator. & brief filed
No LATTIMORE, from an order of an Judge. appeal —This the cus remanding Court of Archer County County of refusal of a writ the sheriff of tody county following of The case his release. corpus effecting habeas sought purpose is a unusual one. very 3, 1924, them took with two sheriffs deputy appears June and started county No. 2 of Archer precinct justice peace appointees those ancient
out in the time imitation of night of the world conqueror in the Rome was Emperors days Roman when and administer place place to travel from were judges appointed conquer- law between the without conflict equity regard on the other. barbarians conquered one and of the Romans on side ing in the with him car on carried aforesaid justice peace sheriffs men- deputy docket well as two question, occasion afore- justice by The seat the administration of tioned.