113 S.W. 759 | Tex. Crim. App. | 1908
Appellant filed a motion to quash the special venire, alleging that the law under which it was drawn was unconstitutional. The law referred to is the Act of the Thirtieth Legislature, which provides that those counties containing a city or cities having twenty thousand inhabitants or more should draw grand and petit jurors differently from the manner of drawing them in other counties not similarly situated, to be determined by the census of 1900. This contention was held to be not well taken in the opinion of the majority of the court in the Bob Smith case decided at our recent Austin term and in which a motion for rehearing was overruled at the present term. The writer dissented in that case and is of the opinion still that this point is well taken, but under the opinion of the majority of the court in the Bob Smith case, the question must be decided adversely to appellant.
One of the grounds of the motion for a new trial is newly discovered testimony. Without going into a detailed statement of the *463
evidence, the issue was sharply drawn on the trial as to who brought about or began the difficulty which ended in the death of the deceased. The witness Nettie Young fairly puts appellant in the wrong. The testimony of Hill and appellant makes it a case of self-defense on the part of appellant. We make this brief statement without going into the details of the testimony because the evidence does present the issue sharply as to how the difficulty originated, — that is, whether appellant was to blame for it or the deceased, Lonnie Hall. The court charged murder in the first and second degree and manslaughter and self-defense. The jury convicted of manslaughter, allotting five years as a punishment. Among other affidavits setting up the newly discovered evidence is that of Sam Young, who states that he was acquainted with the deceased in his lifetime and also knew appellant prior to the date of the homicide. The killing occurred on the 25 of April. On the previous twenty-third day of the same month, this witness swears, he overheard a conversation between the deceased and a person unknown to the affiant; that this happened on the corner of Main and Ervay Street in the City of Dallas, Texas, and while Hall was talking he exhibited a knife, stating at the time, "there are two here against me and by God, I will get one or the other of them before Saturday night." That the deceased further stated, in answer to a question addressed to him by his companion, that these two parties were Sam Young and E.C. Pate, appellant. Proper affidavits are also in the record showing that Sam Young did not communicate these statements and threats to the accused, and that so far as he was concerned, neither appellant nor his counsel knew of these facts and proper affidavits are presented in the record by the accused and his counsel that they knew nothing of these facts until after the conviction. There are affidavits of newly discovered testimony in the record from Mrs. Susan Tally, which is brought squarely within the rule of newly discovered evidence as far as diligence is concerned and want of knowledge on the part of appellant and his counsel. There may be some objection, perhaps, to the testimony of Mrs. Tally upon the ground that it would be impeaching in its nature. It is in respect to statements made by Nettie Young, the principal State's witness, to Mrs. Tally a day or two after the killing. However, under the view we take of the case it will be unnecessary to discuss this phase of the case and the presence of Mrs. Tally can be secured upon another trial. We are of opinion that the motion for a new trial should have been granted upon the newly discovered testimony of Sam Young. These threats were uncommunicated. If they had been communicated prior to the homicide, of course, it would not be newly discovered evidence, but it is shown by the affidavits to be newly discovered clearly and unequivocally. The rule is well settled that threats made by an injured party accompanied by an act showing intent to execute them will justify all necessary resistance by the party threatened. "Where the issue *464
is of self-defense, and the testimony leaves it doubtful as to who began the difficulty, threats of the alleged injured party, made against the accused, is legitimate evidence, and may become of a most material character in assisting the jury to arrive at a correct conclusion as to who in fact did begin the difficulty, `because the fact that such threats had been made would tend to show an attempt to execute them probable if the opportunity was offered,' `and the more ready belief of the accused would be justified to the precise extent of this probability.'" Tankersley v. State, 31 Tex.Crim. Rep.; Stokes v. The People,
There is another question presented for reversal that will not require discussion, that is, in regard to the misconduct of the jury in discussing the frequency of homicide cases in Dallas County, as well as reference to the Brown homicide case and what ought to or would be done with him. This will not arise upon another trial as it occurred in this case and, therefore, a discussion of that question is pretermitted.
The judgment is reversed and the cause remanded.
Reversed and remanded.