*1 mu] y. 505 The State. Sobbell remarked, guess “I and get he returned gallery, it,” after when appellant responded, back son-of-a-b—h, come you you curse, That deceased continued to coat.” after “No, my I came back do you, will fight fight if else but can I said, “Joe, nothing when he around in front with a knife ran fair.” That deceased you him, he, and struck appellant, jumped and struck at back his hand after All the evidence shows ran at deceased ran. his knife. The further shows he struck blow with was a man about while deceased larger 135 pounds appellant weighs 160 and would weigh pounds. conviction for the State stated, supports
As before the testimony together is, testimony, murder. The does the above for only question “that not intend kill and was statement, he did appellant’s trying awajr,” assault, raise the issue of get aggravated the court have Article the Code provides submitted issue? 719 of sudden passion, if homicide takes influence place death, but use of means produce not their nature calculated kill, it would but the not murder unless an intention to be there was article pro- assault. And be of some of- party guilty grade is to vides, that is committed be instrument homicide taken as is likely into such instrument consideration, and if an not death, it unless designed, can produce not death presumed from the manner of its such evidently appears. use intention all
The instrument an shown by used was pocketknife ordinary weapon, and this not se testimony, has been held to be per deadly witnesses, testimony, and under and the of his to require think the issue of assault raised sufficiently aggravated it to be for a at the time finding. Appellant submitted him for be- charge was submitted to inspection, objected assault, not issue because the aggravated cause submit the think entitles to do such error court failed so presents Law, the case. Branch’s Grim. sec. 434. to a reversal of and the remanded. is reversed cause The judgment
Reversed and remanded. Pearl 26, 2828. Decided June 1914.
No. Murder—Change —Murder—Degrees of Law. 1. degrees the recent does abolishing murder under statute murder, where been tried under repeal law of old degree, that he of murder his contention could second law convicted degree, manslaughter again only tried for murder in the second and other Following Shaw v. 71 Texas Crim. untenable. cases. Venue—-Prejudice—Fair —Same—Change Impartial Trial. murder, Where, application trial of the defendant filed prejudice county him in the change of venue account Beports. Criminal [June, prosecution the been get impartial the extent a fair trial, and his application, to sustain sufficient the venue should have *2 granted, although application was contested by the State and the evi- Prendergast, Judge, conflicting. Presiding was dissenting. dence —Same—Evidence—Dying Declarations. 3. murder, Where, upon trial of predicate sufficient a the laid was to admit deceased, declarations there evidence was no error in admit- same; however, ting the advice witness to the deceased that he should there, etc., admitted; go have better known than to have should not been neither should the deceased that he was like declarations shot down Prendergast, John have been Presiding Judge, dissenting. admitted. Eoss 4.—Same—Buie Stated. intentionally evidence of this character deliberately Where intro-
duced, the same is error. reversible —Same—Evidence—Judgment Uisi—Flight. 5. Where, upon murder, flight trial of the defendant’s admissible evi- was dence, yet judgment declaring nisi a forfeiture under defendant’s bond was purpose. Judge, dissenting. inadmissible for Prendergast, Presiding Difficulty. 6.—Same—Evidence—Prior prior difficulty The merits of a between deceased and two of defendant’s murder, younger yet brothers were not material under defendant’s trial any knowledge brought concerning information home to defendant manslaughter. admissible on the issue was malice and 7.—Same—Evidence—Former Conviction. Where, upon murder, permitted trial of State was ask it not a fact that he had before trial was been convicted former tried, being objection now re- was overruled and defendant was error, testify convicted, the he had been was reversible quired so same this, although plea suspension and and defendant had filed sentence Judge, former Prendergast, Presiding knew conviction. dissenting. 8.—Same—Evidence—Acts of Defendant. murder, Upon seen the fence that defendant near was gun going armed with a seen forward deceased was back and sufficiently, place gun, being up times it to this different connected with a Prendergast, Presiding Judge, dissenting. inadmissible. was 9.—Same—Evidence—Acts and Declarations of Defendant. Where, upon murder, trial of shown that defendant’s bond for- approached thereafter defendant feited and returned and one of his sure- advance, ties, apologizing telling trip to him in not him in about his intended again to Louisiana and that did not blame for not becoming his bonds- man, and it not shown that defendant’s going Louisiana was trial; Prendergast, to avoid same was inadmissible. Presiding Judge, dis- senting. 10.—Same—Evidence—Declarations of Defendant. murder, Upon trial of there admitting was no error in in evidence dec- larations of defendant he short time before homicide effect that while trouble, yet, wanted trouble no with the if he have did would be serious and that he would kill out the crowd entire and the court do it liked with him. 11.—Same—Evidence—Threats. there was no evidence Where record use defendant had deceased in mind when he that he pistol remarked a certain gentleman on a 1914.1 Prendergast, Presiding Judge, dis- inadmissible. night, the same was senting. Between Defendant and Deceased. 12.—Same—Evidence—Conversation murder, in admitting parts no error in evidence Upon trial of just prior defendant and to the between homicide. a conversation —Same—Charge of Court—Justifiable Homicide. 13. murder, Where, upon trial of call for the court’s homicide, charge, justifiable under the head of resorting “Without to other retreat,” etc., such as the same given.
means not have Prender- gast, Presiding Judge, dissenting. —Same—Degrees Murder—Charge of Court. .person A who been acquitted degree by has murder in the first can, trial, of murder in degree convicted second new second convicted degree murder showing degree first *3 court, therefore, charge of the may subject, have been erroneous was harmless error. —Same—Provoking 15. Difficulty—Charge of Court. Where, upon murder, trial of raised provoking issue the difficulty, have submitted issue to the proper charge, “Peacable,” but it word, was error to use the' language or other import similar in submitting the issue that right to call on the explanation. an Prendergast, Presiding Judge, dissenting. —Same—Charge 16. Court—Weight of Evidence. Where the issue sufficiently covered charge, the court’s main give was error to a requested charge by directly pointing specific the State charge State, thus on the weight acts of the evidence. Following Parnell v. 51 Bep., Texas Crim. 620. Prendergast, Presiding Judge, dissenting. Appeal from the District Court of Cherokee. Tried below before Hon. L. D. Guinn. Appeal from a conviction of murder degree; second penalty, eleven years imprisonment the penitentiary. states the case. opinion for appellant. S. Geo. King, venue: Ran question change of On v. State, 43; State, 169; dle 34 Texas Crim. v. Rep., id., Cortes 44 Barnes State, 882; v. 59 S. W. State, v. 55 Texas Rep., Gallagher Crim. 50, State, 115 Rep., 46; S. W. Dobbs v. Rep., 51 Texas Crim. 629. Rep., of former conviction: State,
On v. 124 question Wyatt S. W. Rep., 565; 929; State, Brown 122 S. W. Pickett Bep., State, v. v. 51 W. S. State, 43 Texas 375; 490; Baines v. Crim. v. Rep., Richardson Rep., State, id., 33 518. State, declarations: Bateson v. 46 Crim.
On Texas question State, id., 589; State, id., Watson v. 171. 34; Lockhart v. 53 50 Bep., id., State, Lockhart v. difficulty: 53 On of prcfvoking question State, 20; id., Sanders 50 id., Burnett 51 v. 430. 589; State, v. court’s on defendant’s charge right explana ask On question State, 5; State, Texas Crim. v. 50 Rep., v. 35 Casey Shannon tion: id., 163; State, Keeton v. 128 W. 392; State, 51 S. id., Lahue v. 413. Rep., Bepokts. June,
508 Chiminal 74 [ State, On v. question Castro provoking difficulty: W. 985; State, 273; 40 S. Drake Burnett Rep., v. 45 Texas Crim. Rep., id., State, id., v. 20; State, 224; State, 51 v. 49 Sprinkle id., King v. 51 State, 139. 208; McCleary id., v. Lane, Shooh, General, S. Assistant and Norman & Attorney G. State, On the difficulty:
the State. Gaines v. provoking 631, 58 Texas Crim. 181; 127 W. v. 71 Texas Rep., Rep., State, S. Fox 318, 1141; Crim. Rep., S. v. 61 Texas Crim. Rep., W. Gray 454, S. 135. W. 69 Texas Crim. Rep., Rep., Cloud 76, S. 153 W. Special Judge. T. WILLIAMS,
LED was convicted in Appellant District Court County of Cherokee of the offense of murder and assessed years term of eleven punishment imprisonment. Ap- pellant 1912, tried under same indictment January, was convicted murder in the second assessed degree punishment confinement, at but that ten conviction was set aside years lower court.
There ice cream supper G. P. Messer’s residence in the northeastern on the portion 1910. The county night July deceased and male appellant, quite a number other neighbors, female, assembled there It was on this occasion that night. out of which this conviction grew, occurred. The de- ceased at that each time 23 or approximately *4 deceased, old. The under the years evidence, was the larger man. Esti- advantage him in weight mates to about giving varying from twenty pounds. The from fifty appellant’s weight estimated being generally more, to 135 month, deceased some or pounds. a little possibly had the homicide an altercation with two prior younger brothers of One of brothers a appellant. appellant’s had cut on his as head if been struck with stick. said had The deceased was this trouble over showy of a fence.” is not how, all, “the It if fixing at former concerned further than his difficulty appellant, two brothers younger Nor involved it. is it shown he had connection were with any took interest after except or some time any and the between Sorrell boys, the deceased younger appellant, witness, about matter with the State’s F. talking J. Martin, stated he, to him (Martin) appellant, to raise racket going any with that he did not him much blame (deceased), or crew, other crowd “and he told me have ever did they start, or trouble, if 1 I am to get ever going whole d-busi- ness and then can do what they me.” This was after they please trouble between deceased and the Sorrell younger boys, which evidence shows occurred time some prior of 1910 and spring it the homicide in no July, definitely more fixed. had Deceased made serious threats appellant, which been communicated to him to the homicide. had taken his prior Appellant to a pistol wu:\ about a month
jeweler repaired before the Troup homicide and gone Troup day gotten back On the good night the homicide the shape. appellant and deceased Mr. Messer’s residence dark, reached about the deceased first. arriving Quite a of others also arrived about number the same time and disported about themselves One at least of brothers also premises. appellant’s attended front gathering. The house fronted north. There was a and a hall porch north south extending rooms, between rear addition awith east. after porch Shortly arriving, ap- fronting walked pellant this hall through who approached seated, it seems, on the edge of the back or porch steps. The is not entirely in accord as to what them just between language passed time, at this but we will not into now the details of what was go said here, what ensued. sufficient statement of the case to say invited the deceased to aside step the plea he wanted to with him. have conversation Deceased at first demurred, but finally solicitation went; all agree side together side away apparently walked terms. friendly They through walked out a side east gate line of the yard fence and to a some from stump eighteen or feet twenty the gate. had not They minutes, but a few gone through gate five,—until about say three shots heard, were and the deceased came back running through gate Pearl shot him. saying Sorrell had The three shots were in close pretty succession, but there greater time between first and second than there was between second third. The injured died about 3 o’clock He was party night. shot once just below navel and this bullet went entirely through him and his clothes. This wound caused his death. was another There flesh or skin wound on the front and side near the hip, but this did not enter the was not cavity and serious. There was a cut on wound or head top left, little to the and both the and hat scalp showed he had received a blow there.. His clothes were on in front fire of both wounds. body There is some divergence in the evidence as extent of the darkness, but all agree that dark. Ho one except the participants fatal present saw the or heard difficulty, what was said witness, except who testified he saw the blaze last two shots and the bulk saw of the form away of deceased coming *5 from the flash the said last two shots while fired. toAs what transpired there between and deceased after left yard, are confined for information to the declaration of deceased and the evidence of appellant—in connection with physical facts in the case. When deceased stated came back He -through gate to someone that he was killed and asked them him to bed get This, die on. we take is a sufficient statement case for the and present, we will discuss other details in connection the questions raised.
(2) The new law, abolishing degrees murder, was in effect the time of trial from which this stated, is had. As before appeal Eepobts.
510 74 Texas Cbiminal {June, been tried this under the appellant had once before old law and convicted of murder in the various degree. special second By pleas and and motions, presented raised appellant properly been convicted murder in the second and degree thereby having murder in the first and hav degree, second murder acquitted degree statute, been abolished tried for ing higher he can offense than on this manslaughter. subject He ¡rresents position from various stated. but as above angles, position all to the tending able, His and counsel, has exhaustive filed a question, very however, brief. has persuasive separate recently This same question, occasion before this court in several The court has taken cases. consider and discuss the same and has ruled adversely fully not, therefore, now regard contention on the We do appellant’s point. contention, it as an in this State. open question Appellant’s 160 630, is overruled. Texas respect, State, Rep., Shaw v. Crim. 532, W. 103; 160 S. Rep., S. W. Cook v. Crim. Rep., 118. W. Rep., Hill Crim. 72 Texas S. venue, alleging for a (3) Appellant change filed application existed in substance that there so great prejudice trial. fair could not expect impartial Gherokee County State filed His affidavit was properly supported compurgators, therefore of fact was counter affidavits in form and the issue statutory to the extent as to the existence non-existence of prejudice raised alleged. during this trial was had homicide in 1910 and occurred trial which term, former 1913. There had been
May degree in a the second penalty resulted conviction of murder This was in also January, confinement assessed. of ten years of venue. change former application there had been a appears trial, instant the court before the At last term of prior his case called upon resetting at a date when was not present things forfeited. There and his was declared trial bond It seems little, any, controversy. is but about there the record attach sheriff was called upon at the former of the case the thus sick, and during a witness whose court wife bring wife In the home the died. of the husband from enforced absence to make political of the sheriff sought an opponent election ensuing distributed had printed unfortunate incident. He of this capital circulars, narrating three thousand at least county over the generally this case into public-notice thus occurrence, bringing evi- neighborhood county. discussion in every precinct awas -at trial of shows that the former dence further county, various of citizens from parts attendance large composed argument heard the evidence who were at court and present ten-year penalty. with the and the verdict guilty counsel in the case forfeited, bond was declared when occasion, Hpon case, or set for trial cases there was some other it appears number of citizens—-wit- great an attendance upon there was *6 im-i
nesses, etc., from body At jurors, county. this time the rumor that had prevalent became intentionally his forfeited bond had fled to State and of Louisiana as a from fugitive justice. It is a fair and borne out fully by the record in presumption this case that court, these citizens attended to, who the occasions referred homes in returned to their the remote respective precincts county disseminated news very naturally county at the occurring seat. this it is In connection further shown that several newspapers general circulation in the county accounts of these published various ¡None had were proceedings these publications unfair bitter or except short article Rusk possibly appearing Sentinel, relative to arrest after The' appellant’s alleged flight. is as article follows: Sat- “Deputy brought Sheriff Forest Reagan Pearl urday Sorrell, his bond at the last term of the who forfeited them, them, District Court. gets When Forest after goes he generally will and Sorrell have to and more next take extended time.” longer trip The evidence of witnesses thirty introduced together by appellant, with the examination which is also included the bill jurors, of exceptions, together with the the State’s wit- some of nesses fact, introduced think, established the point, case had appellant’s every been discussed known generally in the shows that former precinct county. The evidence conviction commonly well-known. That his former for- generally bond feiture alleged fugitive to Louisiana were well known. flight equally A statement had one or men prior killed more homicide in case was a man general bad had also both gained circulation and credence. Three of witnesses espe- showed appellant’s good to know the consensus of senti- cially opportunity public sheriff, over ment about had county. These, who the candidate canvassed the entire whose county; required collector occupation all cover within a twelve-or fifteen fully territory radius within took miles of whose business seat; third was trader county In twenty- him all addition to these his other county. over were seven witnesses from various as far can judge precincts, or two They all, county. exceptions, say case had all over had oppor- been so far as prejudged they county know, generally heard tunity they frequently That the court’s him, discussed. prejudgment of his former known, this case was the fact generally including history referred to. conviction and above concerning the reports A great many witnesses. twenty this the introduced To meet State defendant could fair get these witnesses believed they testified of them said Some county. and impartial But discussed.” “generally quite had not been knew, so far as they them, examination showed not a majority, upon number of history all conversant themselves fully Guinn, it. The attorney, taken in Mr. county steps his reason witnesses, based for his belief that of the State’s who was one *7 Beports. Criminal [June, a defendant fair trial “because the confidence I have get could altogether of the If this county, though.” but citizenship it is change the true venue test, likely any would ever also, county. might from that Witnesses other counties be needed assurance, claim this standard of high citizenship with their equal counties, abrogated. thus be change venue statute respective witness, State’s who testified was another county superintendent The a thought trial, he could fair cross-examination get upon that developed discussing freely witness quite had been case himself, that he was conversant from some source with sufficiently facts feel belief justified making public expression the appellant off and further said before for ten got light years, that was his testi- of the present opinion digest about it. An extended stated,- of these mony witnesses would As above no good purpose. serve while they get the main think testify they trial, a fair the case and themselves yet they show a familiarity forfeited everything been That defendant done in case. his bond and That he alleged flight to Louisiana. fugitive of a guilty appel- offense matters similar before such other just lant the wit- Not all of county. contended were talk in the prevalent nesses were number of talk, thus familiar with but a great the current them. a We have ordered are of should opinion Cherokee change of in this men in venue case. Doubtless there are case, is who heard of and it without County never those their had, attempt even who if selected as lay jurors, these its but neither of merits, aside and prejudice try upon were the issue. questions sec. (art. 1, The Bill Bights, head “Guaranties” Constitution), accused shall “In all provides, prosecutions, criminal is intended to This jury.” have a an speedy impartial public bé fair a It eleven of doesn’t mean that guaranty. jury doesn’t, force the the district shall mean that impartial. judge jury. a fair impartial trial with the securing hope unless county him td trial in it does'mean he must not But put such are sentiment the circumstances and conditions of public accident nor able neither by feels an absolute assurance give box, will into the jury sentiment the accused against creep design trial. heard testimony such alone as raised except the1 verdict should reflect the jury one. imperfect reflection should be one. Not a distorted perfect are pool, mirror, One crack in the the surface-of ripple juror reflection. improper sufficient trueness of the One destroy .the Where the majority the verdict. destroys integrity great case, and their conversant with a shown citizenship county accused, which minds have with wild rumors been poisoned evidence, heard they where have not be admissible might possibly public is in the con- conviction, sentiment and where his former indicates, think indeed in this case dition, as the mu.] v. Tíce Sobkell an under such
risky guarantee to undertake thing impartial conditions. sin
As said Cortez Judge “Prejudice Henderson ister and the whom it actuates be unconscious quality', person may very its existence.” an ac Witnesses tnat believe frequently testify honest. get They cused could fair trial they are their further given opportunity, or to express called possibly fair opinion them a trial would penitentiary mean *8 to gallows. the in referred As the was held "Randall prejudice, the n in de statute, does the against not the mean necessarily prejudice fendant, but mean may often with force does equal prejudice case. his If trial his upon applica should present tion for a the make change of venue and contest substantially upon same as showing, made of the case should hearing, upon the venue State, changed. be Randle Cortez 34 v. Texas Crim. 44 Texas Crim. Bills to 4, 5 and exceptions questions relating present admissibility dying declarations offered evidence by State. We think it is made from the evidence sufficiently appear deceased, at the time the were made, declarations offered prop- imbued erly belief the near dissolution, approach objections upon issue were met. We do think fully not that the record such shows or in order to induce leading pressing not, declarations as them score, on that reject court was therefore, in error in admitting the declarations in general. We do not
think, however, that the advice witness given Messer to de- ceased, to the effect to have better ought known than go there, should admitted. have been erred, thinkWe the court (4J) shown bill Ho. permit- for the declarations of ting any purpose the deceased that ‘die was shot like down John Boss.” This but an could be opinion of the deceased. the deceased had not If died and had been on the stand testifying, would is, have been to have such permitted testimony-—that given that he was shot John down like Boss. We understand the be rule to is knowledge dissolution for approaching substituted in all rules solemnity oath, respects other and that an of evidence or conclusion is no apply, opinion more admis- of a sible declaration than it he if the part witness upon the stand that this testifying. is the State personally urged was not hurtful noth- interest as there is of appellant, in the down, record ing how John or showing Boss was shot were To conversant his death. any of facts surrounding hold, so we think, prosecution would be uncalled reflection insistent of this evidence even the admission They objection made; after and in either testimony, absence or way other, us to it was not to the cause presume helpful cause before represented injurious appellant’s
Vol. 74 Crim.-33. - Reports. Texas Criminal {June, jury would be conclusion which we would not feel justified in indulg- The evidence was ing. accidentally, incidentally or inadvertently introduced. evidence of Where this character de- intentionally liberately introduced in the record and there is nothing record to disclose what its or weight effect would probably before the jury, and it is of a character as such feel that reasonably hurtful, we of this court to duty it was presume party offering acting that the intelligently, so offered to the evidence was helpful one and hurtful to the other. Bill
(o) No. is an exceptions the admission objection evidence, at nisi, rendered instance judgment failure January, 1913, for his declaring forfeiture bond as an appear trial. is ordinarily accepted Evidence flight also, theory, indication of So the same admissible. guilt inten- would be to show showing tending tionally absented himself from order avoid court in having case. The nisi, judgment however, parte proceeding, ex forfeiture, no legal bond weight effect in the matter of except these reasons it legally conclusion. For establishing no accused, without *9 have been the admitted. It was taken absence of in the It not and an his to issue. be heard on the opportunity part therefore, fact, was, not have final adjudication any been a of and con- issue, this should be as not admissible. stated, The upon absence and to the intentional flight fined evidence defendant’s of or proceed- not to bolster the ex by should same up parte permitted of the court. ing like months prior The discloses that two
(6) something evidence brothers the and of homicide, appellant’s younger to the deceased two out of to fight, grown in or which have difficulty appears a engaged alleged a this it is difficulty, fence.” As out of “fixing growing time then and intervening threats in the between deceased made some claims homicide, difficulty things this one of the and for, of to talk aside at the time he called deceased material difficulty, such, this as are not about. merits of The hand for malice contended case, in but the State one issue this upon other hand and manslaughter, of and on the appellant; part charge in defense to the cause necessary adequate part information home brought or manslaughter, knowledge of then any and deceased his brothers this between difficulty appellant concerning theories. In view of contending view of these would be evidence in to pass not for us it is reversed, necessary fact is being case evi- to the admission of objecting defendant’s of upon exceptions bill of Court that his brothers were convicted in the Justice dence showing above rule the deceased. The assault this growing rejection admission and govern announced will be sufficient upon on this issue trial. No. it is shown that while bill of By exceptions behalf, his own the State stand as a witness was permitted on the mu.] Soebell
gsk been it a fact that he had convicted upon him if was not before now tried. full Timely objections trial former counsel, court, but were overruled and defend- by by were made before the jury ant he had been convicted testify was required The only trial in to this bill is qualification former it was admitted under defendant’s sentence plea suspended latter and that it is Of this court. qualified by will later. We not an affidavit see understand how the effect of do mis- suspended benefits law could be so far invoking sentence statute, to in that interpreted. conviction of a referred felony, means a final for the benefit of conviction. The statute was passed those trial for their was intended a beneficent first offense. It statute not as one fair and a license of a deprive impartial one which Bill stands is true when of Eights guarantor. files an affidavit whether under this statute opens he question also, not he has felony. before been convicted He may ever finally fit, sees affidavit, way has invited especially that he issue in issue. But put general reputation the fact puts not ever convicted of a felony, whether he has no means additional places carrying necessity burden former trial of this before former jury jury, upon ease, same reason had had returned guilty, verdict been vacated. intention law. We clearly This was not the brief, understand the State its sure quite position most error. In reference one grievous unnecessary sentence, suspended substance the affidavit for place say the issue of former conviction was “for open ques- tion asked counsel was a proper legitimate State’s the fact have made misinterpreted appellant may result a reversal did, the answer which fact been well known and this even to the though already inference, of the trial.” as a result of appellant’s conduct *10 the defendant it, here is that mistake answered by read intended case, was to his former conviction this when such reference this The contradicts exceptions flatly bill of query. ask defendant “if it it was says permitted the State position, a former upon before been convicted was fact that he had not a in the case now tried.” -being that inasmuch as the position its brief takes State as and inasmuch conviction, knew former already jury his own counsel, from had answer to questions testified that than etc., “rather felony, never that had been convicted he case, it facts of this the peculiar defendant from hurtful what an to explain us opportunity seems to to have offered think- danger him the of the jury meant and to relieve conviction before when he said had not been statement he had made false ing evi- such any But as have jury how felony.” convicted of wrongfully ? accused be should an former conviction Why dence of his Eepoets. [June, Texas Ceimiital that he is explain called placed upon something the position have True event, ever known. says should in no State jury had testified their voir after accepted jurors they conviction. We do not heard of know dire had former they jurors, was driven but this stress in accepting admitting what State, these could not impart contention several jurors legally Again of the jury. to the remainder their information personal conduct of the the defendant’s State intimates its brief brought had been this information of former conviction already had True, appellant before the do not so the record. jury. We read degree filed certain conviction of second his former setting up pleas manslaugh- as than any higher murder of offense ácquittal grade issue, motions, all relative to this ; ter but various pleadings of these the intervention of without disposed of, it, we understand In fact, before and before the jury jury empaneled. overruled. This condition change of venue had been application should shown illustrates the venue change here but reason why who a jury have been ISToman ever be tried before granted. convicted knew, knew, whom that a any part previous jury say It is jurors may a former trial of the true same it them could lay this affect knowledge impression human nature too well and the first aside, we know but admit this It was error to to be thus of. strong lightly disposed too it of such even reference to evidence, (cid:127)fact any could have see way no character prejudicial had, to what effect it was As the error after once injected. cured ten indication, first was a two verdicts themselves a fair the' eleven last was fixed at confinement. years and this penalty penalty years some time Mrs. to the effect that Streight, brothers between deceased and defendant’s to the subsequent she the lane between the passed along running and before that as she and the field of defendant’s father field deceased deceased in a near fence of skirt of woods she saw defendant passed with a that the fence of up she gun, passed, noth- later of the deceased was There as she returned fence down. in the bill nor so far as that is concerned in the state- exceptions, ing ment of facts incident had connection whatever showing ad- with the homicide. Its the court tendency prejudicial that it material led the to believe mitting necessarily jury some issue. We no inference that the from see have drawn defendant. except rights of the prejudicial admitted, should never character unless there Testimony either some direct or circumstantial connection between adequate incident offered in evidence the occurrence concerning *11 connection, trial had. To be under being admissible circumstantial the circumstances should be to meet the test re- sufficient of certainty in cases of circumstantial evidence. What said quired have here with reference to also bills backwards disposes appellant going mu.] There to at times gnn wagon. forwards his field and having in to show that this carried
is no this record gun being personal for even that possession similar to There are some other the two above in questions appellant. will by announced, the record and controlled rule they here unless showing will not be admitted there is first introduced evidence real they had some connection with or the homicide. bearing upon There two (9) exception testimony reference to bills witness Fitch. It not appears appellant present trial, being time when his one case was set for but that instead of in court he was in Louisiana and his bond was declared forfeited. According testimony, to Mr. Fitch’s returned after ap- to him him in proached (Fitch) apologized for telling Louisiana, advance about his intended and in this connection trip told the witness that did not blame not again becoming for bondsman. testimony seems by this bills of exception as admitted original evidence, admitted for another already impeaching for which appellant and predicate been laid. This evidence could only,have originally been admitted the purpose of being avoided showing appellant had intentionally for trial at the time set. present In other words, as showing attempt avoid trial under the indictment. We see nothing particular testimony indicate or tend to show that was appellant’s purpose such going Louisiana. The mere fact that he bonds- apologized man him in telling advance indica- of his intended no trip tion, see he had made the with no intention return- trip trial. Hot ing time for as original admissible evidence upon that it was not material ground issue in any no predi- cate and could be impeachment laid and met it. Unless there more to this than is something testimony shown the bill of exceptions sufficient to least something amount to an intimation defendant had left with wilfully no intention returning in time for then this evidence trial, should be excluded. not err, The court did (10) complained of, bill of exceptions 12, in Ho. Jim admitting Martin, effect that in a conversation with short time before the- homicide the said, want “He trouble with deceased, but trouble, did have trouble it would be if serious he would kill out entire and then court could crowd do him as they out order, was offered regular While pleased.” was a admissible, its admission of order if matter within the still court, unless shown. discretion of the trial abuse is We see nothing his discretion in this court abused matter. indicate On contrary, was correct ruling proper we think the circum- stances, we further think that any objection at all to to its rather than to it would its testimony, go weight admissibility. By over it was shown the witness Books objection on Saturday in the town of Troup that he was present evening (the *12 Reports. 74 [June, Criminal that when his from appellant pistol occurred received night) homicide That it for him. in a box and repaired pistol man who had threw containing caught the box it in up pistol that appellant that he use that that gentleman at the time remarking hands denied re making cross-examination had this night. Appellant that the evidence offered both as original and we mark, presume if admissible as one it was for admissible testimony; and impeaching this before this opinion, testimony stated of for both As purposes. there is is when other evidence tending directly character admissible only with, that the remark had to application to show reasonable certainty that made had deceased and the de time appellant, remark mind; ceased in be tried idle every accused is to in unlimited numbers things make. There other which he may are than mind as the of this remark other might object have had with record tending the deceased. There is no in the evidence ice to that cream show deceased would be at appellant knew made mind supper night, up even if already any attend. There evidence show nothing Even true anticipate with deceased right meeting night. of of things degree certainty none these could indicate was the the remark. is evidence that object deceased There was not in habit entertainments of this char attending acter. True none of that we are in discussing are the bill things these exceptions we, violating the rules speaking, are possibly strictly outside, but if that it is true that there true, be going equally the testi to indicate absolutely nothing exceptions the bill However, was admissible. are now mony discussing so much for the but exceptions, bill of passing upon unless in view trial. another contrary Upon evidence to show with reasonable certainty be introduced tending was the then this testi object remark, the deceased ultimate 301, Rep., Crim. rejected. Holley v. 39 Texas mony 46 S. Gaines v. 53 S. W. W. in- inclusive, objections Bills 16 to
(12) exception troduction of between and deceased conversation parts objection chief at the back gallery just homicide. prior that some of were merely the statements made the deceased This others that leading. opinions, were questions was, just course, conversation between the admissible parties of opinions without composed it occurred reference to whether statements of facts. Some of the questions rather.leading discretion1 always can not for the and is matter avoided largely of the trial court. second paragraph While there to be no exception seems justifiable of the court’s under the head retreat, means, other about resorting instructing
paragraph think it that we suggest trial we etc., in view of another proper yet said calls for paragraph. think do not mu.] Sórbele from reference to the presumption arising was the paragraph,
Nor the facts the use of called deadly weapon *13 evidence. of the submitting There court’s charge is some criticism (14) for exists, as it now the murder statute
the case to the under that to the extent under decisions think that the criticism is correct the murder in court, statute, new cases of this since the in passage the defendant should under in, this case is be condition tried statute degree manslaughter. stated, old second murder and for As this court has in several and it is not on this cases now passed open. fact, Shaw’s case other In view (See cited, cases supra.) that under this State has however, the established law of a who person convicted murder in second degree thereby acquitted in of murder the first can thereafter second be convicted of degree on the a first hom- degree degree murder showing conclusively icide, fail this error injurious see how could be to the defendant. also makes the (15) Appellant contention the facts in case this do not raise issue erred a the court provoking difficulty, in this submitting issue to the In this connection makes fur- jury. ther on the in it complaint submitted, manner issue was which the be held a difficulty case, was in the and of court’s provoking his refusal subject. give special charge reading From a of a cases great many we understand combination of following must exist charge facts before a on a difficulty, abridged or provoking for right self-defense, called or permitted: The interview must sought be (1) meeting or State, a Shannon 35 Texas Crim. purpose provoking difficulty. v. 2; Airhart v. Texas State, 40 Crim. 470. Rep, Rep., must When the occurs the defendant act or (2) do meeting some use abusive some insulting or language injured calculated to v. person, provoke the reasonably difficulty. Hjeronymus Texas State, Crim. 157. 46 Rep., done, The act or or used, acts abusive or
(3) insulting language must or used, be, be done as the case with the intent of may provoking State, McCandless 42 Texas Crim. difficulty. v. 58. Rep., act just or must referred to a language actually provoke in the deceased is the Mc difficulty injured aggressor. party State, Candless v. supra. Some of cases hold the court should out point charge his charge which the based. provoking difficulty is Carter v. 37 Texas Mozee W. Crim. S. But rule does have met with appear approval eases, in later the fear it expressed too near approached charge the weight of evidence. In McCandless above cited, it is said that the couched in terms and be effect, that the instruct jury, court “should that if the defendant the occasion sought his did (if slaying adversary so) having found him did act or used some language, or Reports. t Criminal [June, be, both, produce intent occasion and may and that the difficulty, same bring circumstances to- and on such reasonably difficulty, calculated account produce his him and he attacked killed adversary adversary pursuance then such would be murder.” original design, of his killing above, however, given, not there nor here given, as a suggestion merely for a essential charge, elements. form announce the rule to all of the cases before a Most court is all, he must charging upon provoking be able justified hand “to on” the which justifies definitely put point “the reverently Some eases inalienable charge. speak very self-defense,” the rule cases of suggest provoking' right anywise can abridgment right only jus- difficulty, the older say Some of cases tified upon ground estoppel. *14 of advantage is the maxim that “a man not take legal based upon may of the law. He seeks own to favorable wrong gain interpretation “that one others, in it.” can vain who offends And against the law necessity the which and himself knowingly very willingly bring the that to effect for his All of the authorities are he sets defense.” up do intent kill or serious is blit with no to where a difficulty provoked the driven to the difficulty the one injury, and provoking bodily that own life he is such of his necessity killing protection the considered carefully We have only manslaughter. guilty to first difficulty evidence bearing upon provoking whether such issue the case. determine made in the beginning addition the statement of the case to In to inbe the further facts shown the record by state opinion, that the appel- Hamilton testified witness Joe evidence. State’s the rear deceased, porch to who was on the edge lant went sitting . and supper, ice cream of Mr. on night Messer’s house or steps out, on “Pearl told Tom to come just testified as follows: further not want did no, that he he to talk with him. Tom told Pearl wanted then Pearl kill him. out'there and that he to him get wanted go, went with with him. Tom to talk then no, he wanted only said conversation in that that Pearl further Pearl.” This witness stated used as as he “that if he was game deceased) told Tom (meaning come,” then went. he and that Pearl would asked it is when witness shown By replied, and “If got the deceased him, up out with go deceased will said there, no, go and fight Sorrell fight he wanted I then but Tom said you. something to talk with here. I want just as said, Tf was, then game hear what it and Sorrell you me,’ together.” then to be with went go will they used you you said there. statement of State’s what was sufficient theory This is a conversation, to this is prob- reference theory, The appellant’s own contended point. shown He testimony upon best ably threats made him the deceased had heard that he time had had some in the spring 19¡U~\ brothers, "that he never seen two had the de- younger That he, the ice cream the appel- night supper. until
ceased started back he to the well and saw deceased sitting went out lant, told him that he like to talk to toup and walked to him about the threats that he made talk had “I wanted him. . told me Jennings Mr. Cox and Mr. had about his life. about my threats, ask him those wanted to about just me. I threats against I brothers. When minor way treating my also about me, that I come oil and have a talk with told him wanted no, ‘if want you and said him, I to talk with raised just up wanted him. told want to fight here.’ then him I did not fight, fight I with him. He That I wanted to have a conversation just friendly gate.” By me went out towards the got up and and him left there and friendly, off evidence, they apparently all shown walked yard side out fence gate side side through distance, steps or thirty darkness some twenty comparative probably heard that in minutes shots house, from the few three were very towards the house through gate saying back deceased came succession, shot him. These shots were fired rapid between the first second than intervening but there more time latter two shots. what out there in the dark State’s as to only happened declarations through at the of the homicide place deceased. The State’s witness Davis testified him, got made to stated when out there the declaration dj'ing Normans it seems friends (who commenced cursing *15 told the not to appellant that, the and he do he deceased) it, it, that he to replied not stand and would have stand appellant could hit over him the head with (deceased) when said that he and with hit him over the head and that when pistol a pistol, had hold it when he was shot. grabbed deceased the pistol the and said, “I him statement he never heard make On cross-examination This, it, understand the presents Sorrell.” as we that he grabbed arose, and theorj' difficulty State’s manner chief the the not be in this be true the doctrine of provoking difficulty if the intent in of the seeking the Under regardless and meeting sufficiency given of the regardless provocation the intent difficulty, given, or the with which the same provoke the remains that not into "beginning the deceased was provoked fact clearly con- not difficulty difficulty, and did in fact the the begin the the As we have seen by the trary begun appellant. cited, this within rule.
the could in no event this case the cases bring he by testimony, the as shown his own appellant’s theory, Under with him the out for talk friendly invited deceased purpose by and over threats that he had heard as been made deceased having the trouble and with reference to between his two younger deceased Mr. “When told just brothers. testified. I Appellant got my just he had threatened wanted Barker that I understood life and I Bepobts. 74 Texas Cbiminal [June, know it and with him he did talk about it. why me He replied said that he understood I had life, and threatened his and I asked who told him that had threatened him I his life and he said Arthur told Norman, and I said if Arthur that he you ais damn lie. Just I me. said Barker struck He struck just me with his fist on he he me body. grabbed When struck me and as he I my grabbed me and hit then he me and I hit pistol again him with /drew . . hit him it. . I over the head with him pistol. When I hit wa¡s with him me, I to knock loose from I the'pistol but when trying struck him with the knock loose drew pistol him and back I to hit him and again he one hand me grabbed gun by and throat with and me he me.” the other cursed and said kill Ap- further off acci- pellant testified connection went gun had it, the first time and when he no control of while dentally were throat over the deceased him the scuffling gun, having with one hand and other, gun managed that he finally theory, turn the on the shot gun him twice. Hnder this deceased true, would not be in the because provoking'a difficulty appel- character,' lant’s and acts all of were and the conciliatory deceased, according appellant’s statement, unprovoked committed assault him which life was point where got is, however, endangered. There another version of this developed case as Messer, ice through the witness whose house the Messer, cream held and the homicide occurred. Mr. supper declaration to him testifying dying made the deceased effect that after the deceased outside gotten the yard ap- made remark with reference to pellant, derogatory done, Normans were doing and the deceased denied something it, Normans had done this doing declara- dying then proceeds tion follows: “And that Pearl then ‘Pearl, him (deceased) they were, said, cursed and told curse said he told Pearl me.’ He he could do take him he take again Pearl cursed told had to he said Sorrell, and as he hit him Sorrell, he grabbed grabbed (Sorrell) head brought down and the He gun commenced. shooting Sorrell, as he Sorrell hit said him on head and grabbed brought gun down and the commenced.” On cross-examination this shooting witness declaration, testified as to “He further said just *16 said hit (deceased) grabbed He Sorrell (appellant). then a the over He did not Sorrell hit as soon pistol. say head him just him, but said hit him.” grabbed as he Sorrell and grabbed Sorrell If this last declaration abe of what occurred the true version immediate the a time of was in the provoking difficulty As the the must oE charge rule court phase every case by the presented any testimony, howsoever became slight, to charge court in this case the law with reference to duty charge This should, doctrine difficultv. provoking course, drawn cover the facts this case carefully particular evidence in 1&U.1 such a it, and worded in justify way jury could other facts and circumstances. thus
misapply Having decided doctrine the court was correct submitting provoking difficulty the law of contention to part contrary course, be overruled we next come to will, of consider his objections to the issue charge given. In this connection the court instructed the jury
“had in law to invite deceased 08 from crowd for right the pur of peaceably with him pose discussing settling (Barker) any pre vious brothers, any between deceased or difficulty (defendant’s) any, charge if etc.” made threats, timely objections Appellant has on account of the use of the word As this “peaceable.” opinion writer, so to the already grown lengthy, though seemingly u'navoidably authorities in this ourselves a statement by we content im other of similar State use of the word “peaceable” language in this connection is error. burden upon port places law. a diffi placed charging provoking The court by as was done culty State’s ordinarily affirmatively, presents instance, then en (cid:127)this from the State’s The viewpoint. to the untrammeled viewpoint titled converse of the from his proposition extra or insinuation. 61 Texas Crim. State, burden Duke v. 8, 19,133 S. W. v. 51 Texas Crim. 20 King Rep., Rep., Texas Crim. 139. As seen the under McCleary took, after con charged difficulty, charge the having provoking With out these verse proposition. exception pointed above charges issue, of this presenting appellant’s side seem have correct as went, far as but we have charge think should further gone as it is done applied law to the facts substantially words, Nos. appellant’s requested charges 1 and 8. In other should be told that to call jury appellant had the right aside for the a conversation with having him with reference threats the former brothers, etc., with his difficulty and that deceased assaulted appellant appellant’s right of self-defense not be told impaired. also be that if the plainly ap intention no to kill pellant provoked he would not be of a guilty higher grade homicide than manslaughter. are not The above intended as a form of the suggestions charge, but attention court’s merely calling point. No. is a charge correct
Appellant’s requested enunciation of as we see but if the suggestions law hereinbefore made are met charge, the main this issue will be sufficiently covered without this special nor will the No. 7 charge, charge necessary. The other special special all refer to which has been charges excluded made by rulings opinion and conduct attorneys, which will prosecuting trial. occur So see no likely be served good purpose to matters at this discussing these time. State’s No. which requested court, was given think, was error. This issue was sufficiently covered by. *17 ¡Reports. \Juwe, 524 Texas Criminal 74 acts specific give special charge directly pointing State, Parnell v. evidence. 51 Crim. weight 620. Rep., four in this case is over voluminous, something The record containing undertaken to of all of the issues dispose hundred We have pages. essential for another trial as as the briefly questions presented For the permit. out, errors and remanded. pointed cause reversed remanded.
Reversed and Presiding Judge. PBENDEBGAST, believe I judgment dissent from affirmed, and its reversal. Archer Paul v. The State. 26,
No. 3199. June Decided 1914. 1.—Murder—Statement of Diligence. Facts—Waiver—Want of Where defendant his counsel did not use the diligence required by facts, law cause can to file one was due to expressly same, secure statement but in fact waived facts, not be want of a statement of reversed as the failure action of his counsel. Distinguishing State, 349, Rep., v. Crim. Rep., Burden 70 Texas 156 S. W. 1196. 2.—Same—Circumstantial Evidence—Declarations and Acts Defendant. Where, murder, depended entirely trial of circumstan evidence, tial seen admitting error was no shortly occurred, before going say the homicide in the direction where it ing etc., going get meat, talking some and that the witness heard passed, State, Following Noftsinger App., licks etc. v. Texas Crim. 301, other cases. from District before the
Appeal Court of Wharton. Tried below Hon. Samuel J. Styles. from a years conviction of ten
Appeal murder; imprisonment penalty, in the penitentiary.
The opinion states the case. for appellant. Hawes, Jr., and E. G. Gappell, question pre S. On statement of facts: Burden 70 Texas paring State, 349, v. Crim. Rep., State, 156 W. Rep., 1196; 588, S. Roberts Texas Crim. Rep., v. S. W. Rep., 1193.
On as to declarations and acts of admitting testimony defendant: Garrett State, v. 52 Texas Crim. 106 W. Rep., S. ; State, State, 389 McClain Rep., 951; v. 144 S. W. Fossett v. Rep., 497; 55 S. Rep., Heffington W. v. 54 S. W. McMahon 81 W. S. Lane, Assistant for the General, E. Attorney G.
HABPEB, Judge. mur- Appellant prosecuted and convicted of