*1 36th Texas [Austin, Criminal in law for the assumed basis swindle. Because indictment fails tO' the sale and to Cohen of said diamond allege delivery by $75, stud in consideration the court have should sustained of the defendant. No sale been none objection having alleged, could be indictment defective in said being proved. respect, reversed, is and the cause dismissed. judgment
Reversed and Dismissed. absent. Presiding Judge, Hurt, R.
J. v. The State. Sims 3rd, No. 868. Decided June 1896. Is _eio| Murder—Arraignment—Special Venire. 1. Proc.,. seq., provide arraigned Crim. a defendant cannot et. Code be Arts. days copy indictment, he served order after has been until entire two demurrers, present necessary may opportunity exceptions have an all that he But, require special these statutes do not that a should venire to the indictment. present summoned, and that should be when the defendant is ar have been raigned. Same—Change 2. Venue. may parties, change venue be heard and A for determined before the motion trial; and, required special ready it is not that a should for venire have announced change for venue acted and summoned before motion can be have upon. drawn been . Witness—Contradictory Same—Impeachment Statements. 3. murder, is conflict with and contra- where witness’ On a trial for statements, inquest dictory to, previous at taken and examin- statements, trials, competent ing or similar to show that he made same is stand; shortly occurrence, him as testified to a witness after the those and, other statements were made under oath in the it makes no difference those previous examinations. Same—Evidence—Dying 4. Declarations. murder, appeared a. deceased was shot 8 or 9 o’clock for where it On a trial time; m.; suffering m.; greatly during p. that he about 1 or o’clock died physician recovery; express hope informed that his did that at no time recover; daughter threw her arms about no chance for him to
him there was him, her, began crying, “All is Held: His decla- well.” remarked aud dying properly declarations. admitted rations were 5. Same. subsequently just after he was shot the deceased Statements and, “I think death, have shot me:” didn’t “Sims to the effect shoot,” dying declarations. admissible as are Sims Jury Predicate for Laid. When Same—Presence 6. declarations, always primarily dying predicate, for the admission While practice court, tes- hear all the it is the better still may fully connection, circumstances under timony be advised so in this were made. declarations which the Venue—Rearraignment and Plea. Change of 7. arraigned, party and has changed, has venue has been Where began, should prosecution it is that he county pleaded where been, county plead venue has required rearraigned changed. v. The Same—Reading Jury. Indictment *2 murder, changed, appeared the venue has and it On trial for where been thereto, prosecution, prior county of the institution of the defendant had been him, having arraigned, to his the indictment been read to of not entered, jury the indictment not read to the on had also been the trial until Held, by Henderson, Judge: several of the witnesses had testified. That it was unnecessary again jury, already to indictment to the read the inasmuch as issue had Hurt, Davidson, joined upon Presiding Judge, Judge, been it. ex- decline to likely press opinion upon point, again. an as it to is arise Property—Charge. Same—Defense of 9. (cid:127) murder, was, On a trial for where one of the defenses the homicide was in de- property against upon an charge fense of unlawful violent attack and the of possession depend upon “rightful possession.” the court made the of defendant Code, possession only Held: Erroneous—under quired Penal Art. Subdiv. the re- possession might “legal;” one, “legal” though and a to be abe not founded in one; right “rightful” and not a where there was some as to who was owner, right possession property, charge the and had the of such a was calcu- prejudice lated to the defendant. Same—Resorting Means—Charge. to Other 10. upon property (attempting Where one of the defenses was unlawful attack to fence), testimony suggesting
remove a and there was some that defendant could injunction. charge have resorted to an instructing Held: That a of the court the rely jury upon self-defense, protection property, before defendant could every power, except killing deceased,” he should “have resorted to effort in his injunction jury should have eliminated the matter of the and have told the that de- required was not to to fendant resort that measure. Against Trespasser. 11. Same—Self-defense One, possession property, right and in who is the owner has a to use such force it; necessary prevent trespass upon and, doing so, to a forcible if in he is com- kill, justifiable. trespasser goes upon
pelled property And where a he is with felony, necessary accomplish commit a if intent and with the means to intended, the end may property repel by force the owner force. Same—Charge. 12. parties grew controversy for, out of the Where a deceased’s demand upon right posses- to remove a fence of which defendant was in and insistance sion, employees shotgun, manifesting and armed with a came with deceased retreat; Defendant was not bound remove the fence. Held: intention to was not any time; means than such as were at t.o other his command at bound resort repel by and, necessary, in order to the force used became deceased while if it he was upon fence, very unlawful and violent attack act of his to kill offense; charge should convicted have so could instructed effect; further, believed, they possession jury that defendant was in removal; if, right protect prevent and, had the it and its then he while removal, doing only prevent what was made an gun, causing apprehension him reasonable him with of his life or assault slay bodily injury, then defendant have the deceased. serious Appeal the District Court of Victoria. Tried below before S. F. Grimes. Hon. indictment found of Calhoun grand
Appellant, the murder of Louis Foster on October, the 2nd charged day returned into court in indictment was Calhoun 1894. The County November, On November, 1894, the 16th day day the 13th the District Attorney, motion of stating statutory grounds, motion, the evidence support court hearing after changed - to Victoria At the of the ease time this County. the venue motion was [Austin, 36th Texas Criminal granted, heard been no venire had discharged, special ordered summoned to no been try preliminary questions defendant, and neither the State nor presented by the defend- trial, for nor had ant had announced the case been called ready trial, the fact the term of that court did not last owing long tried, the case to be it could to enable not have been tried enough matters These were called to the court, term. attention of the made to the motion and hearing objection acting upon then, were overruled and made venue changed. At the first term of court thereafter Victoria County, exception of that court was the defendant, jurisdiction and motion the case to the "made to return Calhoun. County This motion was *3 overruled the court. by
The case was continued for two terms by defendant, and at the term, 1895, it came on November to be tried.
The evidence the case shows that Sims was II. C. Clark’s agent, of his ranch in Victoria charge Calhoun Counties, and right- such agent manager, possession of the fully, lands in Clark’s fence, and the the line of upon which the homicide pasture occurred. that The evidence shows the fence which divides the lands of Louis Clark, H. C. Foster which the upon homicide occurred, was Gamer, built in 18Y6 Jacob a former owner of the that pasture Clark time of the owned at the homicide. It further shows that the fence was Garner under thereby Allen, instructions from W. H. placed surveyor had been of Victoria who Garner to fix employed by the line fence. Allen told Garner that the southwest line of his (Gar- land was varas outside the line where the twenty built, fence was ner’s) the fence as built left a so that strip varas width twenty outside of enclosure, and inside the Garner’s enclosure of pasture Louis Foster. testified that he had held Garner all the possession land inside his fence, and of the to the time had enclosure he sold up the land to Regan, Clark, who sold to sold that he Traylors, who had also had pos- land session while the was owned by Regan them, Traylors, the time had and that he during possession he had never heard Clark testified that his title he had questioned. the land and bought in 1888 or fence he had Traylors always claimed all the land in the enclosure and the and had never heard his title Foster, until about when questioned having bought adjoining land, them, on the southwest of his or an interest set claim surveys up of land inside It was in strip evidence that pasture. on one occasion, Foster, Jr., Louis the son told Sims that he was cattle in Clark’s put pasture, to do so going claiming upon his father had land inside the ground pasture, Sims told until he could Mr. Clark, do so write to Dallas, who lived in Clark, to Mr. about it. That he did write who instructed him to allow (Clark) in, condition that Foster them he put allowed number in Foster’s Foster to a like later on in pasture season, put Sms v. The 1896.1 need This he was not to. might pasturage.
when Louis. agreed (Clark) cattle, into head Foster, son, beeves, pasture put thereafter Sims turned them back into Foster’s shortly pasture. occasion, further that on one Clark offered to appeared, give Foster acres, land he claimed inside his about for a pasture, strip acres, side of
about Foster’s which fifty upper pasture, Clark wanted, so his line of fence. This straighten proposition was de- land, Foster, who still insisted that the inside clined Clark’s pasture his and that that he claimed was when he got ready going take it. that Foster on one occasion
There evidence said that the land that he was to take with a his, and going shotgun he got. Sims could not him. and that Also that thing stop he had ready, Sims, about an animal that expressions against used threatening brand, in Clark’s Foster, mistake branded belonged had almost counter-branded when the immediately mistake was discovered. homicide, the week before Foster sent Peter Barnes
During with holes dig hands inside Clark’s the line pasture post along he claimed to, the line of fence to that purpose removing line and up re- Sims saw the men in the there. ordered pasture them building This was to Mr. posts. out Foster. pulled up reported Foster On killed on Sims met two of Tuesday. Monday Barnes’ hands Foster’s, from Victoria. down towards When asked their busi- *4 were down to build they ness the fence they replied for Fos- could not build and ter. Sims told them that he they would meet them there. in the habit of his
Sims was when on the ranch. wearing pistol Tues Price, Laurence Richmond Hubbard and day morning early, Elijah Barnes, Barnes, hired hands of Peter three drove over to wagon Sims, There were met who asked them wrhat they fence. were they for, were and Peter and they replied they waiting Barnes Soon Mr. to start to work. Peter Barnes and Foster Foster came up. armed with a double-barreled He came Foster was to the fence shotgun. horse, on his and after where Sims was sitting greeting post passed them, the men he asked were not work. why they between re They for him to come to start them. were He then told waiting plied fence; to take down the Barnes refused to do Peter Barnes so. Sims fence; if Mr. told him not to touch the Barnes said Foster would Foster then took the take it down he would over. to go pincers pull Mr. and Sims fold him that he had been instructed Clark the staples, further, removed, he, and that if let fence be taken down or to Foster, man, that would show that he could not was not an old State, the witnesses for the down. Foster take fence According Sims, said, “Oh, you fly.” According then pshaw, wouldiVl^ferhJ^ in the act of d [Austim, 86th Texas Criminal in a hat the second his staple, stooping position, flopped pulling mouth, over his his his Sims shot. pipe down eyes, Sims’ Foster took his from testimony, gun According knees, he had it while cocked top staple, where pulling and poked face, when he fired his in his pistol. upit witnesses, men, the three Barnes, colored State’s Price and The Hub- laid his down two bard, that Foster gun steps when he went away, it in hands did not have at all after he laid it down. contradicted themselves and each State’s witnesses The other many impeached Barnes was by showing material statements made points; fired, one times. There was but shot him at other Sims’ horse him, as he dismounted when in the act of having away pulled Lavaca, and gave himself up he walked shooting, deputy town, edge met Williams told him that he sheriff. had tried to shoot Foster Foster because believed that shot shot that he did shoot. He testified Foster save Foster his own life. one shot fired. There was but selected, State, had been without
When the the in- jury requiring ¡flea proceeded dictment intro- on behalf continued duce the until the State testimony rested; then introduced then, The defendant testimony rested. of a the introduction rebutting after State’s testimony, indictment, to read the and a of not plea attorney permitted defendant, he counsel, entered for the under advice of his having, not, did The State’s after attorney plead. refused indictment entered, offer introduce had been read again, the evi- that had been heard read, dence indictment was was it ever reintroduced. nor Foster, declarations were proven F. and John Clark. Dr. C. Scott Before their
State by retired, and heard to determine admitted its ad- missibility. stated, “That he reached . Scott then Foster’s house at
Dr. about or 10 Foster in the m., a. and found had him wagon; o’clock moved into the wound, house; fatal, pronounced examined which statement was *5 Foster, who embraced and Foster’s by daughter heard began weep, her, not all is stated to ‘Do well.’ Foster at weep; and Foster died about fatal, I afternoon. After told Foster that his wound was o’clock me,’ ‘Sims not to have shot made this statement: and after- ‘that he stated he did think Sims was wards shoot.’ fatal, I told was When Foster wound was’then condi- dying tion, and his did not seemed realize condition. He express hope any sane; mind death. He was his any expectation ap- recovery clear, and the made made in to be statements were not peared question?_r"pounded him, or in reply questions, any reply I After had examined all made deceased his but were so as to wound, he him a being th^^^^^^J^-ess, support sitting v. The State. Sms mattress, I under the after had told him the chair was placed position, examination, When I made I found that the was fatal. my the wound of his body half paralyzed.” lower wound, “After Dr. Scott had examined the Clark testified
John under the I about mattress support the chair placed room, him. There were others attending Foster’s head about Foster He raised one said something having gun. me, ‘Yes, I looked said: had my gun up, opening eyes, ” me, I had laid it down.’ evidence, to this because it did not a suffi- objected lay for the introduction of the cient declarations deceased. dying predicate Because there was in it to the state of mind of the show nothing that he had no or to indicate because the hope recovery, opinion did not such which was over- physician sujjply proof, objection the court on the laid; ruled sufficient had been ground predicate . recalled, and that the was then declarations dying were proven them, made, as without to hear the evidence of allowing laid, as the same had been testified predicate court, to before the
the court part holding inadmissible to testimony go and to this and action of the court the jury; ruling defendant objected. Because the laid was not sufficient to admit predicate declarations, defendant had because the to have the jury pass upon evidence admitted, which declarations were as well as declarations themselves. All of which the court excluded and overruled, and to which exception reserved. duly were reserved to
Exceptions the court’s allowing read, State to evidence, of its rebutting excerpts of Peter testimony Barnes—Peter Barnes’ taken at the depositions inquest examining trials in It this case. was admitted the court in support testi- trial, as a witness mony given defendant had attempted impeach by showing statements contradictory made to other parties. B. Peticolas,
A. & W. M. 1. Itwas appellant. error for the court to allow excerpts depositions Barnes to be read in sup was, effect, port stand. the wit allowing ness to corroborate his himself. The rule testimony by an im allowing corroborated, peached witness to be made on other occa statements sions, refers to court, and, occasions out of connection with any and at legal a time when he is not under proceedings, the sanction of an oath. Williams v. State, 24 Tex. Crim. 9 Tex. Crim. App., App.,
2. The court erred in declarations of admitting Louis Foster.
It must in some satisfactorialy appear way, declaration was death, under sense of that it impending was voluntarily (2) made, that was not made in answer to questions, or (3) suggestions *6 \Austm,. Texas
160 36th Criminal to elicit the statement or to a nature calculated draw from the witness* was, witness when the the information the statement was. given, (4) made, State, v. 31 Tex. 173; of sound mind. Benavides Crim. Rep., 256; State, State, v. Tex. Crim. Hunnicut v. 18 Ledbetter 23 Tex. App., 510; State, 654; Tex. Crim. Crim. White v. 30 20 App., Tex. App., 638; State, 80; Tex. Crim. Crim. Miller v. App., App., v. Fulcher State, 28 Tex. 467. Crim. App., me,” shot
Foster’s “Sims not to have opinion, inadmissible. 141; 629; Tex. v. 9 Tex. Crim. Crim. Collins App., Common App., wealth, 12 271. Bush (Ky.), to the
The court erred in allow which refusing upon the testimony to the for the relied establish admission predicate State declar- dying had to be heard the Defendant the to have jury. ations by right his. the the facts under by case upon passed upon jury appropriate whole to allow the to the pass by refusing jury question as. charges, Foster, at the time made his alleged declarations, whether recover, with a he could not defendant was them belief de- made constitution and of the secured the laws land. by prived read the The court erred the District indict permitting Attorney the from Calhoun to the record County showing ment jury had been in that court defendant, of not entered the plea him thereafter to introduce of his in permitting rebutting the without re-introduction or re-introduce tes offering the had been heard issue jury which be already timony made indictment the State and the defendant been tween up by of the heard the When the most jury plea. them, law, raised State and according no issue before tried, crime for which he was being charged defendant. The was, read, not State, the time when the indictment was known to up before the intro The indictment reading jury jury. law, as a and the fact evidence requirement duction mandatory of court in Calhoun the indictment had that at a term previous Sims, and he required failing read to. been plead, entered did not neces dispense had been plead, was intro the indictment before the evidence sity 571; State, 11 State, Holt v. 9 Tex. Cole v. Tex. duced. Crim. App., Barbee v. Tex. Crim. Rep., Crim. App., court asked erred refusing charge had heard the evidence to consider charged guilt before the indictment was read to them determining law, a correct statement This this case. charge read indict- or of the failure to and was result legal consequence re-introduce, time, of the State to at the failure ment proper offer to re-introduce testimony. the evidence court,
The verdict contrary charge in defense this, homicide that the evidence showed that the took place an attack was by' property, being *7 Sims v. The State. 161 1896-1 and in accordance with the verdict, charge given, one of guilty all, should have been for and not murder. manslaughter Gilcrease v. State, 619; 33 Tex. Crim. White Rep., v. 10 Pac. 37; Territory, Rep., State, Ledbetter v. 34; 26 Tex. Crim. v. State, App., Lilly 20 Tex. 1; State, Crim. Souther v. App., 18 Tex. Crim. 355, 6 Tex. App., Crim. 465; 10 Tex. Crim. App., Bliss v. App., Johnson, N. Y., 73 529; Ill., Davidson v. People, v. Ayers State, Miss., 709; State, v. 26 Tex. Mewly Crim. App., 274-303. & Muse and Harris &
Kearby Knight also for filed an able appellant, brief case. Davidson, A. B. District Trice, Mann Attorney, Assistant At (1) It
torney-General, is contended that the court erred the State to read the permitting bill of indictment to the and en of not thereto for the tering plea after the State and defendant had introduced their evidence in chief. In support of this relies Arts. 600 and proposition, appellant Code Crim. Proc. These articles have been held to be merely directory, manda State, v. McGrew 31 Tex. Crim. tory. 336. Rep., The record discloses that had been appellant and a arraigned, entered for him in Calhoun from which the venue was county This was all that changed. See, was necessary. Bohannon v.
14 Tex. Crim. 271. App.,
The defendant in a case can waive felony save and everything except of trial In this case each jury. juror, when exam- being dire, ined his voir upon of the nature and apprised character of the offense which the defendant was and when charged, the panel was were sworn a completed, they true verdict to render therein on the issues State and joined the defendant. While it is a usual prac- tice that after the the indictment empaneling read, should be jury, if the defendant sits yet without by, quietly objection, introduced, he would be deemed to have waived the of read- formality the indictment. consideration, Aside from ing it is respectfully submitted that the record disclosesthe introduction of sufficientevidence after the of the indictment reading which to predicate judg- inment this case.
The declaration of the deceased introduced dying subsequent indictment, this, face, its sufficient to in this case. judgment predicate look declaration, When we to the can no dying question what the
but for its laid. deceased proper predicate introduction was The m.,- was shot and died about 1 o’clock the same morning, day. p. In shot, the course of hour after called he was physician his wounds mortal. pronounced Ro hope recovery expressed even intimated the deceased at the time the statements in made. however, contends that the Appellant expressions Kep.—ll.
36th Tex. Grim. Texas 36th Criminal [Amfm, declarations, (1), “defendant me,” not to shot (2), me,” “I not think Sims was to shoot did were but opinion should therefore be excluded. This when considered “Yes, with I me, I expression, connection my gun down,” had laid it the case rule brings within the that this was clearly rendition of facts. but a shorthand all eye-witnesses homicide that the shows to erect a fence on land that claimed attempting appellant *8 Clark; that he denied his to erect
for EL C. the fence in the man- deceased; that the the deceased carried a ner with sought by shotgun work, the where he was at but at the time of him to the place killing feet deceased, the and the eighteen was laying away gun whatever, no demonstration intention making showing any inflict death or serious the on his defendant. bodily injury upon the shot, the when deceased was head But, contrary, on defendant, the and was down, looking at remove a trying the horse, of on from one posts, sitting staple above, at a time the deceased was not even shot him looking “That him. Therefore the not to expressions toward “I not think Sims me,” me,” and did to shoot must have shot of in the the facts light and construed the homi- attending be viewed construed in should be reference to the other ex- cide, and especially me, I had with but I had laid it “Yes, down.” More- gunmy pression, that shows did not the exceptions appellant the bill of over, object the but the opinions as being only objec- expressions no had been laid for that sufficient the intro- predicate made was tion If, however, declaration. the court should con- of the dying duction of excluded, should have been complained expressions that the clude of these independent expressions, abundant proof, still in this case. judgment to predicate Appellant was HENDERSON, Judge. convicted of murder assessed at five in punishment years degree, peniten- second first bill of appeal. Ajjpellant’s exceptions prosecutes tiary, in of the court venue. that changing the action appears relates in Calhoun presented in this case County, that the indictment of for a venue the District change Attorney. Ap- motion was erred in the venue did, the court when it changing claims pellant venire had in case, no been summoned time special at the because the criminal called legally up, could be docket not be- case said in time. He the indictment this case alleges at that ivas on call ing that, November, 13th on 14th day presented made, for writ of habeas ovember, corpus N application hearing November, until 16th of 9 o’clock; was continued of the same November, at after action of night, the 17th the court on that on the court granted motion proceedings, habeas corpus venue, and he did not appellant alleges have rea- and changed v. The and the other to examine indictment pro time within which sonable as to have acted on such prepare excep so ceedings indictment, as he desire might present or demurrers tions venue, the motion for a and on change the case. The grounds stated, are because in the was changed, County which the venue the defendant is was com of which Calhoun, charged the offense where combinations and influences favor of mitted, of existing on account fair and to the State and to the accused accused, a trial alike impartial said because the county, could not be and speedily safely with the known killing facts and the evidence connection widely the citizens and of Cal and had been discussed among jurors thoroughly houn and it be said Cal procure jury County, impossible effort, case; houn reasonable that the re try lations of the deceased and of the defendant were so numerous account of such it would be could relationship, improbable venue, the said case. As reason procured try change Calhoun, is further stated that where the offensewas County committed, one week’s term of court was authorized only law. The (cid:127)contention of the is not do not exist for appellant grounds *9 venue, of of change because of the irregularity informality that, and he insists a of proceedings; before venue could change be made case, it was summon a venire. Art. necessary et special Proc., 1895, Code Crim. seq., the method regulate of changing venue in criminal cases. It is contended that that, Article 611 requires before a of venue can be heard and change determined, all motions to set aside indictment, and all special pleas exceptions which are to be de termined by which have judge, filed, shall be disposed court, and, overruled, by a plea “not entered. It guilty” n contendedthat this article, construed, means properly that the jury should be present case, ready before the try plea guilty could In be entered. capital was, as this the statute provides for the arraignment defendant, and that the takes arraignment for the place purpose the defendant the indictment against him, and hearing plea thereto, and that no shall arraignment take until the place expiration after least two entire days on day which copy indictment was served unless the to such or to such copy waived, be or unless the defendant delay See, on bail. Code Proc., 1895, Crim. Art. et These seq: articles do not seem to require before a can in a defendant be arraigned capital case, it is to have the It does that he shall necessary present. require not be until of at entire arraigned least two after the expiration days on indictment, which he has day been served with a but in copy this no case claim of take it that this character is We he was presented. served with a properly of the indictment two entire copy days The fact that a arraignment. party charged capital felony cannot be until of two entire after the arraigned expiration days be, service aof of the indictment copy appear among 16é 36th Texas Criminal [Atistm,, other him an things, purpose giving opportunity present all indictment; exceptions demurrers it has been held this court that cannot of said by deprived two days. State, See; v. Lockwood 32 Tex. Crim. Reed Rep., v. Tex. Crim. is not shown Rep., the bill of by exceptions motions, demurrers, or indictment, presented to the exceptions nor it known was made to the court that it was desired to present any;, and, in our court did err in opinion, overruling appellant’s ob under jections change venue the circumstances of this case. Where a venue is change it contemplated, would to be an appear idle to wait until the special venire has ceremony been drawn and sum besides, moned; and, this would abe procedure would entail a useless trouble. The statute expense authorizes a change venue to be heard and determined before either has trial, announced party for ready motions, all but requires etc., exceptions, special to be pleas, deter is, mined such have been by judge—that filed—and then requires entered, of not to be apprehends the arraign and, ment takes as this take place; arraignment place before the may trial, have' announced it follows that the parties ready attendance of is not under such required circumstances. Appellant complains erred in read, the court State to as a allowing of its re evidence, Barnes, of Peter excerpts butting testimony taken trial, and inquest trial in deposition examining In our opinion this case. admissible. As we under it, it shown Peter Barnes had stand state occurred, to how conflict killing ments with reference with the trial; the stand him-on at the delivered compe he had made the same statements or show that statements tent to him at to those made the trial in substance after the shortly similar makes no In our difference whether opinion, occurrence. these state witness, made under oath in the examinations of *10 previous ments were rule in this is outside. The the same. or persons respect Ap that the in his court erred over admitting, objections, urges pellant of Louis The his declarations Foster. of are grounds objections dying not that at the it does the deceased was time conscious appear death, and that his made in declarations were response of approaching his answers, calculated to elicit and that the statements of questions fact, not of but or the deceased were conclusions. any merely opinions it must before of a declarations appear, Unquestionably, per in evidence, admissible he of son are was conscious approaching Starkie, to Mr. “the According death. principle exception clear and is that a is obvious. who presumed person stands upon that his dissolution is fast that he stands on the knows approaching, of and that he is be called to an immediate account eternity, verge has a amiss, for all that he done before from whom are no secrets Judge hid, truth, as a will feel motive declare the strong to abstain acts under.the obligation from who an oath.” deception, any person 165 v. The State. entertained the to have seems Ev., Shakespeare And Starkie, 32. of the wounded into the month he sentiment puts same view when intended announcing disbelieved Melun, himself while who, finding Louis, exclaims: treachery King my view, death within I not hideous
“Have life; quantity Retaining away, even as form bleeds wax Which figure ’gainst the from his fire? Resolveth What Since I must lose deceive, make me in world should now all the use of deceit? false; true, Why is I be since it should then here, die and live hence truth?” That I must —King John, V., Act Scene it must teach that be shown some way all of the authorities And made, the declarant no enter- declarations that, longer at the time of the mind must of life. This condition satis- always hope tained any us, case. In case the evidence before factorily appear until at 8 or o’clock and lived was shot morning, the deceased time, and at during was suffering greatly or 2 evening, hope no did he express recovery. Shortly time any made, informed him that there no declarations were physician His who was present, him recover. threw her daughter, chance for father, He her remarked to her: “All began crying. arms around condition, what from his was said to him We gather well.” child, the fact response time physician, death, until there was no evidence or shot indication on life, establishing conscious of any hope approaching death, no So far as hope recovery. any questions entertained to elicit been asked statements or declarations which may declarant, think the contention ,we nothing statements elicited from him were that of the appellant. me,” “I to have shot didn’t think “Sims that Sims (the If this witness shoot.” been on declarant) he would have been to make stand, permitted we believe these state- While do one appear ments evidence. sense fact, but rather nature of shorthand statement of any rendering facts, it in the case to whether the issue deceased was or demonstration towards the making act doing any that the defendant would have anticipated that deceased could have shot of the witness as a him; and, in the statement dec- our opinion, Another objection laration was admissible insisted on testimony. is that the were not permitted in this connection appellant *11 laid. the as to the While predicate hear the is al- predicate testimony court, it is the still better a question practice ways primarily in this connection. all of the in have the hear Even jury the made as the of admissibility no issue is decla- cases where rations, be in or placed possession the should surroundings 166 36th Texas Criminal [Austm,.. declaration, of so be advised “settings” may of the cir- they fully cumstances under which it was made. ' case, of It that on the trial this as we take appears by oversight, after of indictment was not read empanelment jury, them, and no formal was made to the indictment plea by defendant. had elicited in and chief, after State its Subsequently, rested, defendant introduced his and and testimony, before the on its State omission began put rebutting was discov testimony, ered, and, and the indictment then read to the defendant de jury; plead, was entered for him. The clining plea guilty wit nesses the stand who been placed upon not reintro previously duced, nor was there formal waiver such reintroduction this part appellant action the court appellant, assigns as fact, error.. The record this further discloses the case which has al stated, that the venue in this case was ready Calhoun changed had, to Victoria before the of venue change defendant and on arraigned, he refused to arraignment plead to indictment, n him, and said which was read to of “not plea guilty’ court, done; ordered to be which entered accordingly such constitute record this arraignment plea and will be considered us in with this question. connection As-' before, stated our statute of a provides requires arraignment in which every capital felony, arraignment requires dictment to and that be read to he enter his prisoner, formal thereto. This constitutes the issue between the State plea joined record, and, is made a matter before a venue, is that this change imperatively required arraignment and, seen, we take done this case. Mr. place, Bishop “If the has says: prisoner arraigned,sand has been indict pleaded ,a ment need,of venue is there is no second changed, arraign Proc., See, 74, ment and 1 second Crim. plea Bishop’s county.” § Com., 162; 2 authorities, Cas., v. Va. citing follows: Vance Price State, Gill, State, Md., v. v. Davis 355. We have examined authorities, also each the text. We refer to Bo support State, hannon v. 14 Tex. Crim. in which the is inci App., “Yet, if in the involved. Mr. further second dentally Bishop says: county he is cannot be for error. It pleads arraigned again, assigned has been to require said to be safe and judicious practice to be is awarded.” And it before the has given change See, been held our court that it is no error to a defendant. rearraign contended, however, Shaw v. Tex. Crim. Rep., Proc., 1895, Art. Crim. because Code states the method trial the indictment or before a information jury, requires read to the and to the District County Attorney, of said indictment the it is in case manda plead, defendant shall every this statute as to crimi tory We construe imperative. applicable and, course, nal trials criminal trial it abso- general, every *12 167 v. The case; is, that the shall be entered necessary plea lutely But, the State and the defendant. in a between the issue be joined entered and the issue can con this has been we plea joined, case where the last mentioned article is to the extent mandatory sider that case, done in a it must given has been be done over where this already the statutes in regulating arraignment again? Construing capital Proc., Article et Art. Code Crim. seq., including cases (see, materia, it occurs to us that said statute and Article 697 pari 1895) the extent that criminal case the of not every plea only mandatory relied must he made. that is Where no upon, arraign where guilty, case, in a and in an taken place capital ment has previously ordinary trial, read, the indictment is then brought case where party entered; the defendant made and but in a plea capital has and the has case, where arraignment already transpired, plea made, it would seem be sufficient to state these matters merely been course, issue the case. Of involving joined the jury, in all the better cases where has been practice party pre would be and, that the indictment be read to the while no viously arraigned jury; that it takes be stated the defend place, yet arraignment been and entered his of not arraigned, plea ant previously guilty. However, in this case the issue was between the joined already par record, and, case; a matter of ties, part case, issue, the evidence was all addressed this presentation it; and, view, did not misunderstand we entertaining and the jury case, of this it was not that, under the circumstances hold, indictment, after the the witnesses introduce again The their testimony. arraignment having already them reiterate have of “Not defendant’s been en guilty” having taken place, and a of the record of matter of thereto, this was tered and, notice, when the trial to take be was, began the court bound between the State the issue was already joined fore the jury, defendant. occurred in to a show that homicide regard facts of this case
The land. Said land was situated 200 or acres of as to some 300 dispute Clark, H. who Texas, and of one C. pasture Calhoun Sims, E. was his Dallas, manager Texas. The J. at resided of said pasture in Calhoun County. appears his ranch on a line of deceased, Foster, separated by joined, being and of the Clark two; placed said fence line having fencing the homi- whom Clark, purchased, years or those from line, not on the correct that the fence was deceased claimed cide. him in land acres of belonging some 200 that there were seems to arisen This as to boundaries pasture. Clark’s 2nd of occurred on the 1894, and the homicide year the spring land, and insisted claimed the The deceased that year. October him. de- line, as This Clark true claimed by the fence moving seems, however, that at one time he was will- to, clined agree [Austin, 36th Texas Criminal to surrender the acres on that side of the ing pasture, provided the acres give fifty adjoining pasture another that he so could straighten line place, The deceased re- fencing. *13 to deceased, this. The occasions, fused to on agree several urged fence, said, and a homicide, removal month or two before the it to move at all hazards. he He if it was told land, for his, he to sue his he insisted that and take Clark, move the fence and his land would anyhow. before shortly homicide, letter, wrote the dated manager, from he told not to Dallas, substantially Foster to permit move land, and directed him “to get the fence hold the possession a manner a mild but as firm A possible.” same in few days homicide, some hands over into Clark, the deceased sent pasture to number, holes. They dug preparatory fence on dig post moving up them, The defendant saw and forbade that line. their more digging any holes, them out of get and On the required pasture. morning October, o’clock, about 8 or 2nd of with some three or hands, came to the line of fence in question, four purpose taking down, and it on line Clark’s moving pasture, claimed him. deceased there' in The hands He on a preceded wagon. came little afterwards, horseback, riding accompanied Barnes, one Peter while double-barrel, carrying and was About breach-loading shotgun. arrived, the defendant also came up fence, the line time he and each other. As to the facts immediately they spoke attending witnesses, homicide, number, the State’s some three or four in sub- give account, while the alone, the same in his stantially testimony, account of the matter. We quote a different gives Barnes, and the account the other State’s given by of Peter witnesses with his statement: after the agrees “Directly substantially to the hands: ain’t all at he said work?’ ‘Why you rode re- They up, said; for and Peter ‘We are Barnes.’ Deceased waiting you plied: then; down, Pete, to work. we will Get go ¡mil ‘All down right, ‘I can’t Peter cross fence. replied: fence.’ and Mr. Sims.’ Foster said: ‘You are you to be decided hired and I tear me, give you permission down my possession, that he didn’t want to into trouble, Barnes get fence.’ replied to Sims: ‘You hear what Foster about says my and he tearing said: fence.’ ‘Don’t touch that fence.’ Sims Barnes you down would not touch it. At Foster said to that he Sims: ‘I replied I have had trouble. didn’t come out here You any. want no pos- fence, and I want to land move enough, session of my long , ‘Foster, said: can’t you line.’ Sims cross fence. build it my do, instructed will I am one else get If I do what my don’t man, and make a have to and can’t I am a let living, poor place, said: ‘Will into trouble for you get this fence.’ Foster an- move you me keep building If want can my you you other man? me, I fence; and can’t build courts, otherwise, I my stop go y. The Sims ahead, build it. I don’t care ‘Go nothing will build.’ Sims said: it, I will it down.’ then cut Foster about it. As soon as build you hard, Sims looked at him and said: a fence walked toup post, man, I what I Foster, if was not so old a would show you ‘Mr. you ‘Oh, Sims, Mr. wouldn’t fight do.’ Foster said: pshaw! you horse, around, fence on his turned Sims, who was close fly.’ at, and on Foster’s hand. hand on the Foster put post When he was the second the first pulling Foster was pulling staple. the wind blew hat over his and was in a posture, staple, stooping face, and, time, Sims drew his threw himself pistol, about just back, him, fell. That he and shot and Foster (witness) immediately looked, horse, but off he and Sims off of his how didn’t know. got distance, him, His horse ran for some failed to catch" pursued them, them, started back towards before he stopped then got *14 turned, last he saw of him that That then and that the he turned day. Foster, said, to who while he was there on the attention lying ground, his think Sims would shoot me.’ He then states that ‘I didn’t they got and him on home.” into the carried The defendant’s wagon, deceased “That he had told of the homicide is as follows: the hands a account holes, before, he found them when to out digging post get few days he wouldn’t them in the allow to move the pasture of the pasture; down near That he was the fence line fence. early morning October, 2nd about o’clock. That he saw a drive wagon up some hands Foster’s and drove to within pasture, with they fifty fence, and He asked them what yards stopped. they going do, and had come to work on the to fence. That Peter they him, had Mr. Barnes to Foster’s house to and start to gone get work. time, and In a short Foster Peter Barnes rode Foster had a up. shot- said, and ‘Good Defend- gun, morning, boys (talking darkies).’ Foster;’ said, and said, ant ‘Good Mr. then he morning, ‘Good morn- Defendant asked him what he was to do. Sims.’ He said ing, he to move the fence on the line. Defendant told him was going (cid:127) Mr. Clark not to let one move the he was instructed fence. He any fence, that he it not Mr. Clark’s and would do what he said was pleased Peter, turned to and told him to pull with it. He then fence down. Peter not to do it. Peter told Foster that he would told fence, took the and started to not do it. Foster then and pinchers, not to the fence The deceased said defendant told down. again pull him do matter; it was his and he would what he with it didn’t pleased hand—a He it. in his double-barrel walked shotgun. He his gun hands, in his he his gun pinchers the fence with up wire, out of the When he staple hold of the pulled post. caught around, turned his the defendant horse started the first staple, pulled hand, him from Foster stop pulling staple. to catch Foster’s- it in the defendant’s face. Defendant then lifted the and cocked up, gun him. Deceased at the time had the and shot breach pulled pistol, deceased, also said to Defendant during gun legs. [Austin, 36th Texas Criminal trouble, before the that he shooting, didn’t want and that he colloquy after, had a look and that he do had to what he was instructed family sneer, ‘And, do. Deceased with a replied Clark would tell you steers, steal one of do In my that.’ that connection he stated you him that there was trouble between and the deceased about a steer that he that, for Clark branded some time before and that the steer was deceased’s; mistake; branded it he told he the deceased himself; and that the deceased had about to- afterwards complained it. about Defendant also stated that the Clark deceased told him to get fence; him from an stop out he told the injunction, moving suit; and, land, if he gained deceased the law would bring put thai, also Witness explained drew the- possession. deceased him, horse, off of his jumped gun (defendant) immediately deceased ran off dis- his horse ground, shot failed; after the he tried catch tance, and but shooting occurred, mind, where shooting back changed started Lavaca, and im- Port surrendered. He also stated was went fired, the time he shot that the also and he so stated pression before he to Port Lavaca.” Williams From relation got to one two theories self-defense are to-wit: presented, the facts (1) an then unlawful attack on the de- being Self-defense against him to which caused believe reasonably fendant by his person danger serious danger, bodily injury; his life was and violent attack on the unlawful property and (2) Code, 1895. The court both these Penal gave Art. under *15 the contends that to the but the court’s appellant charge jury; theories in case, was not the law of the an but was theory second charge the rights appellant. to impair and was calculated charge, erroneous is regard in this" of the court especially charge That If the defendant, follows, “Subdiv. as to-wit: of is complained in Clark, possession H. C. and was of the rightfully Sims, represented H. C. pasture, Clark’s the fence fence inclosing of the land inside use all lawful means protect a such pos- he had right inclosing it the deceased. in effort a trespass upon Every repel session must have trespasser been resorted than killing other his power in justified killing would trespasser; before defendant in this that the defendant, evidence case believe but if you in his killing effort before power except Sims, every did resort while took the deceased place he did killing he shot shoot), (if attack an and violent uj>on act of unlawful making in the very was defendant, should him.” The acquit principal you property that it to the makes possession urged charge objection ground It will be noted on his “rightful possession.” depend (Penal 680, Code, Art. Subdiv. reference with that the statute 2) thereon, self-defense property, predicated to the possession must “The the' possession be legal, uses the expression, though in not be The possessor.” may the property expressions. right v. do not the same mean possession” “legal possession” “rightful A connection, posses- and are not interchangeable. in this thing is, not a possession; but rightful sion be strictly legal, may in; him such as the would protect have such possession person may law. not be a was might possession possession, yet would be legal and a at law demonstrate is, might founded in suit right; rightful; same time a legal pos- at the though possessor, that he was wrongful case, circumstances of this And under peculiar sessor. to the as to ulterior right property, about the
was some question who fact, to the thereof as owner, had the was, right possession in not cal- that the as was owner, cannot charge given ultimate we say in that it made his pos-- appellant, culated to prejudice rights Attention was called to thereof. the rightfulness session depend this time, pre- subject at the and charge of the court this error connection, we In this sented, the court refused to the same. give charged The court correctly call attention to another matter. case, that the de- believe, “must from the evidence that they jury in fendant, Sims, effort except killing resorted every power, self-defense, deceased,” where prop- he could on this rely right went, far this announced a correct legal involved. As erty but, inasmuch as there the case sug- proposition; that the defendant could have resorted to injunction pre- gesting elimin- the deceased from the court should have moving vent matter, and told the that the defendant need not have ated this Furthermore, to such measures. we believe that the charge resorted court, in the defendant’s of self-defense regard protecting should have been framed more reference to property, explicitly was, case, facts this case. There this no particular of said land and fence. possession Clark, either, held for there-was no that the employer, question, had determined to remove said such fence. Under circum- stances, think case, we the correct enunciated principle Payne’s Cal., Cas., in Horr. & T. 863. The learned reported p. judge in that case: “Under the circumstances of Stone and whether intended or inquire Vaughn endeavored manifestly and, so, violence to commit the act of whether felony, Payne defense of himself or Stone and property. Vaughn knew *16 that that to and the evidence property belonged to Payne, goes clearly show that went with the to it to the determination remove they prem- Stone, could, if if ises of must. they forcibly peaceably they removal was determined their conduct upon, subsequent depended If resisted, the owner of the upon contingencies. property they force to use to It was not the prepared accomplish trespass. or endeavor of Stone and to a in intention commit re- Vaughn felony it; did not intend to steal nor was it they their spect property, intention to commit a for the felonious intent as robbery, to the property intended to commit felony they wanting; killing [Austin, 36th Texas Criminal to if the removal of the accomplish posts. necessary Payne
Payne, same, and in of the the owner had a property, possession being use such force as was to a forcible prevent to necessary trespass; right so, he to kill if, in he was doing compelled Vaughn, justifiable. armed, had not been and had simply attempted trespass If Vaughn arms, and force of neither intended nor endeavored to commit without himself, then would not have been in Payne a felony justified killing But when the with the intent and with the goes him. means trespasser if intended, the end accomplish felony, commit tot owner See, force force.” v. may repel property Woodring State, v. Tex. Crim. 20 Tex. Crim. Rep., Lilly App., before, from all that has gone In this the deceased appears hazards, to remove the fence at all had refused to had threatened appeal in law, and had to take the matter in purpose to the persisted removal; that hands and make the he hired hands previously, .own them into Clark’s holes on the line where he pasture dig and sent fence, said and that had been driven to move out they proposed defendant, and on the when he came with morning question, .hands, unmistakable terms his armed with de shotgun, manifesting do, to remove said fence. This he had no and the right termination direction, could resist his this and to that end attempt defendant retreat, force. He was not bound to and was bound force by only repel as he at that take such other means could time resort to in order to But had a the removal of the fence. he this right prevent prevent removal; did resort to such other means as were then within fence, in order to the deceased from said prevent his power, removing endeavor, and was in the and the act of persisted very fence, an unlawful and violent attack said in order to re making him while and the defendant killed such unlawful and making move attack, not be convicted. In this case a on this he could charge violent the defendant presenting rights more clearly fully subject have been to the facts of this case should Of given under the jury. of the defendant as to the as course, if the believed him the deceased at the time he shot made on being sault of his an as protection person against of self-defense involved, death or serious bodily injury threatening sault case; but the sufficiently presents phase in this regard charge better if the would have been the defend rights in this regard charge the fence itself been presented, reference to ant with that, if believed form the evidence that the have told then he had right protect was in possession removal, and if he did no more than and to its prevent such possession, connection, in that and the deceased then reasonably necessary which caused him with gun, reasonably an assault upon of serious danger or his person that his life was danger believe then, circumstances, assault, under such from such injury bodily deceased, and we would suggest had the slay *17 Lawrence v. The trial of this case this matter be that on another such presented out, manner as For the errors the judgment is re- suggested. pointed versed, and the cause remanded.
Reversed and Remanded. Judge. Presiding DAVIDSON, HURT, In reference Judge, to the the indictment to the necessity jury, stating of the defendant thereto to the we deem it plea jury, to ex- unnecessary as to whether this opinion procedure incorrect, was correct press or or, words, in other whether the failure to read the indictment to the and have the stated jury, appellant is reversible jury, not, error because this question will arise trial. another upon Judge We concur opinion all other respects. Henderson We do not wish to be understood as dissenting, no. merely express upon opinion subject.
Sherman Lawrence v. The State.
No. 1382. Decided June 3rd, 1896. Murder—Express 1. Malice—Intent. murder, any length To constitute it is not of time intervene between killing, length the formation of the intent to kill and required and no of time is upon express very fact, to form the intent to kill killing malice. The cause, without duty, indicates the motive or intent in a heart devoid of social fatally bent on mischief. Same—Charge—Manslaughter. 2. charge upon manslaughter, A which authorizes to consider all the facts determining provocation, any, and circumstances in the case and if such degree
facts and circumstances were sufficient to excite in defendant’s mind a passion incapable reflection, to render him for the time character of cool and that circumstances, manslaughter, killed such to find him deceased under stating particular predicated. was sufficient without facts which it Trial—Controverting Mew Affidavits. controverting Where the had filed affidavits to State defendant’s motion for new trial, evidence, upon newly based discovered if defendant desired time to answer said affidavits, argument he should have craved the same before into the motion trial. for new Trial—Mewly 4. Mew Discovered Evidence. trial, upon newly evidence, properly A motion for new based discovered refused newly probably when said discovered evidence is not true. 5. Same—Self-defense. murder, appeared aggressor, On a trial for where it that defendant was the up he started for that deceased threw his hand to his breast when de- fired and killed him. Held: fendant Self-defense was not in the case.
Appeal from the Criminal District Court of Dallas. Tried below F. Clint. before Hon. Charles
This is from conviction for murder appeal the first degree, assessed at a life term of punishment being imprisonment peni- tentiary. facts,
The material attendant are shown the testi- killing, witness, D. Black, W. as follows: “I mony remember well