*1 y. 573 The 2927.] Waters State. issue that the account, this and further on the upon charge ground special A charge. intent injure should submitted reserved, in which refused and exception charge requested, duly court was to instruct that before a conviction violence the evidence be authorized must believe from injure. with an intent intentionally committed Code, 1009, The that accident or Penal article expressly provides innocent intention would be and it has held defense, by in a number of cases that the evidence raised an issue that the accidental it unintentional, is error to refuse to injury 344, issue. Carrel 77 Texas jury upon State, Crim. Rep., v. 129; 178 331; S. W. Owens v. Rep., State, Rep., 62 Crim. State, 503; Menach v. 97 W. Calhoun Rep., State, v. 71 W. S. S. also been intent Rep., injure 279. has held where an case, vital issue it is affirm give error to refuse to instructions atively defensive Warner v. 74 Texas submitting theory. 209, 1109; 167 Calliham Rep., S. W. v. Rep., 150 S. W. Rep., Perkins 658, 617; S. W. C., 914, 2 Branch’s Ann. P. and cases cited. case, defense in this as developed testimony, by raised an issue of fact as whether she struck which injured blow Choice Woods accident and her intentionally, blow which accident injured made it incumbent boy given by court, when upon give submitting properly requested, charge' the issue accident intent injure.
On account of failure the court to submit these issues on re- quest find order that the necessary judgment of the lower court be reversed cause remanded.
Reversed and remanded. Thomas
No. 4282. Decided December 1916. Rehearing granted February 1917. 1.—Murder—Evidence—Conclusions of Witness. ' Where, murder, attempted trial of the defendant to introduce testi- mony as to conclusions of about the deceased’s behavior before same; homicide, besides, in excluding the established there was no error this matter was the defendant himself and other witnesses. —Same—Evidence—Immateriality 2. Testimony. Where, upon murder, trial sayings all the acts of both defendant killing morning eyidence, admitted there was no arrived, error in got what time the mail excluding people as to mail, etc., killing their occurred. town where —Same—Argument Counsel—Requested Charge. 3. attorney’s argument proper merely Where the State the defendant objected requested charge writing, thereto without a there was no reversible Edwards v. Texas Crim. Following error. Beports. Texas Criminal [February. 4.—Same—Evidence—Hearsay—Acts of Defendant. Where, murder, proved trial of the defendant several witnesses every meet act of his in the deceased when he was about to avoiding
each him, lowing excluding hearsay testimony error Fol- no matter. there *2 State, Ill, Rep., Hardeman 61 Texas Grim. and other cases. v. Judge—Witness 5.—Same—Conduct of Under Rule—Practice. witness, Where, murder, developed of trial of it that one defendant’s rule, to who was under the State’s had been told the defendant as what a certain witness, to, whereupon reprimanded witness had testified court matter, retired the jury inquire to further into the and then return .ordered jury, of the just courtroom, the court in their hear- entering said, dollars,” ing, know who the this under to twenty-five jury did not “Assess his fine at and while they supposed witness and against, against fine it was matter, defendant, true, which was their deliberations discussed the and in error, of instant case was reversible as it was calculated the facts impress jury defendant and his witness. done discredit 26, State, Rep., Prender- Following 72 Texas and other eases. Scott v. Grim. gast, Judge, dissenting. Jury Law—Readmitting —Same—Jury Testimony. 6. Where, they disagreed after retirement of testimony as to- interrogatories witness and out of State’s wrote under direction of a certain the court witness, asked said one of which was what did to be deceased, thought and what from his attitude he he was about when he saw to was not be them do, presence court in the of the stated to that that this matter witness, permit question and he testified to Held, repeating could not inhibit the witness from answered. dissenting. reply jury. Prendergast, Judge, query of the his —'Same—Evidence—Adequate 7. to Female Cause—Insult Relative—Motive. Where constituting the widow of the deceased the facts' of homicide, far as the defendant before the so were not communicated to evidence discloses, with reference between the deceased and the to a transaction son, of deceased calculated defendant’s and which was an insult the wife against the passion to arouse the introduction in evidence of the its ease, was, therefore, prejudicial reversible error. defendant Prendergast, Judge, dissenting. —Same—Self-defense—Charge 8. of Court. murder, charge given in Where, upon trial of the court’s on self-defense was form, positive rather effect that negative charge than a the defendant’s on self- informed in the right to have the had the shot, continued fire the first then if he had the defense until the difficulty ceased, standpoint as viewed from danger life had instant case. Fol- of the given under the facts should State, and other cases. Rep., 62 Texas Grim. Stanley v. lowing 9. Deceased—Threats. —Same—Evidence—Habits murder, threats arose in connection with question Where, trial of habit whether the former defendant the deceased testimony was admissible automobile, character pistol in carrying his Prendergast, Judge, dissenting. instant case. under the facts Henrohill. Tried before helow from the District Court
Appeal Frank Hon. Willis. im- manslaughter; years two penalty, from conviction Appeal in the penitentiary. prisonment states the case.
The opinion y. 575 1917.] Willis, Dial, Hoover, Baker for appellant.— & Hoover & and H. B. 363; Law, of conduct of trial Branch’s Grim. sec. judge: On question Sate, opinion. 36 Texas Crim. cases cited Rep., Hayes v. dealings facts evidence showing exclusion of On question State, Hill v. leading killing: parties up prior 448; State, Rep., 67 Texas Crim. 481; Texas Penton v. Rep., 74 Crim. State, 76 Texas 279; Texas Crim. Barnett State, Rep., v. 73 v. Gant 315; Crim. State, v. 41 Texas 555; Heffington Crim. Rep., State, Texas State, 506; v. 75 15 Texas Lamb App., v. Crim. Campbell 75; State, id., v. 75 Gomez Crim. State, of counsel: argument On v. question Kenedy id., 618; State, id., 364; v. Conn v. 11 Crim. Grosse State, App., Texas id., 566; App., v.
390; Bryson Gazley 33 Texas Crim. 367; Exon v. Boss v. Rep., 12. uncommunicated of the defendant:
On acts Brumley question *3 222; State, State, Miers v. 34 Texas Crim. 21 Texas App., 161. refusal de On of submit of question State, to shoot: v. on his Clark fendant continue State, 455; id., 57 Woodward v. 54 293; State, Smith v. State, id., 19; 61 48 id., 86; State, Duke v. Swain Texas Crim. v. 98. of evidence: 43 Flynn of v. insufficiency On question id., 407; Texas Crim. Rep., Spivey McDonald, General, G. Assistant for the G. Attorney On question evidence that deceased before avoided refusing appellant Becker Texas Grim. App., Powell v. killing: and opinion. cases cited recently decided, Judge. Hnder an indictment therefor tried HABPEB, appellant was Milam, convicted assessed manslaughter and for murder Phil lowest punishment. in their oral submis- appellant’s attorneys As argument stated by all briefs, their material facts relations sion and conceded by and for some time -thereto killing at the time of prior existing killing proven surrounding parties facts other testimony, except unc-ontradicted uncontroverted established by kill- As the facts the immediate killing. immediate facts of the some other wit- somewhat supported by testimony, ing, On he killed deceased in self-defense. nesses, would tend show eyewitnesses, a consid- by State’s hand, testimony by the other by not done killing show that erable preponderance, murder, or at man- least would show self-defense, but appellant dis- some herein, if necessary, testimony state slaughter. mayWe errors. assigned cussing Repobts. Cbimiual When the trial all sworn, witnesses both began sides were
placed under rule and instructed the court as usual on such by occasions. E. was an C. Eubanks witness for important appellant. appellant were officers bank, same appellant being presi- dent and Eubanks cashier. In wit- one the State’s cross-examining nesses, asked him he appellant made certain statements said Eubanks with the view Eubanks. impeaching After by State introduced rested, others, its in- appellant, among Eubanks, troduced and he said testified effect State’s impeaching said witness. Upon de- Eubanks, cross-examination the State of veloped told Eubanks what said witness had State’s testified, in clear violation of the court’s instructions when wit- placing nesses under the rule. The court heard this and himself development to ask so as to began questions, definitely ascertain whether communicated Eubanks the wit- said State’s testimony given by objections nesses. Upon the court retired the then further investigated Eubanks question, swore of said had communicated him. State’s witnesses court entered fine each Thereupon, $25 against appellant then Eubanks, directed the be returned, which was done'. that, entered, It seems as the two them first entering tell heard the the clerk: “Assess merely judge his fine at $25.” to whom the judge did know referred. They Hone of this shows reversible error. The uncontradicted and testimony, uncontroverted him- by appellant several both self witnesses for sides, showed positively state of existed between hostility each other, which had existed for a considerable length of time up became day killing, and worse after very they had had a *4 fist few before fight the for a killing, weeks and few months the' on killing, weeks before when appellant occasion he and every were about to meet come into the deceased of one another company lived they occurred, the town where went out his killing of each time to avoid deceased. offered way Appellant to meeting prove, of the one of State’s witnesses that the upon he, cross-examination this conduct of the on witness, appellant had observed numerous occa- the witness was trouble between expecting appellant sions “because he, further, witness, And on such occasion.” the noted deceased said “such as to on occasions indicated his mind behavior deceased’s an to meet with seeking opportunity deceased by on face.” seems bill that expression an angry what objected were to sus- of the witness these conclusions The the court was the court. action of correct. Even in- tained by this the witness of of testimony court objection cidental as to the conduct testimony that witness’ of have excluded stated,' immaterial, because, would be as facts deceased, it such avoiding established clearly by testi- controversy positive were, without The State. . t. 1917.] sides, on both witnesses other himself and various of mony fact, In thereof by contradiction or any without contest that course pursued established that appellant, conclusively -was conduct. witness, on of a the testimony in excluding court’s action ¿time on night Glazier got what the mail into as to State’s objection, mail their got postoffice who trains and what time people material This it, went was correct. usually morn- on the acts both appellant All the way. any be proved, said, sought where and what they ing killing objection. without- any introduced shown attorney the district argument bill Appellant’s complaining shows no think district error. We attorney (Edwards that he did. inquiry to make the argument hypothetical Appellant Rep., 227.) 172 S. W. 75 Texas Crim. Rep., writing, charge in no merely objected argument. disregard it. otherwise, instructed to that the should be jury it seems differed time, After the some they had been out for on a certain as to the one or of the witnesses point, two testimony effect, matter, pro- as shown all understand wit- with to have one of the ceedings thereto, reference they wanted trial. nesses on a to on the testify which he not testified point “If is: our on fully subject, followed statute disagree witness, statement of any particular court, have such witness again brought may, applying testimony stand; be he shall directed to detail his judge other, be and no shall particular point disagreement, and he further to make his statement language instructed used examination as P.), as he can” C. C. nearly (art. permitted about, the witness to what he on point tell had testified inquired at that hut refused to time to on testify permit any point not testified the trial. wherein We think action of the correct, and that court was no reversible error shown action thereto. decisions regard (See noted under said article both in the revised C. P. and under article in P.) C. said Vernon’s Ann. C. C. err in
The court did not the witness refusing permit Whitacre to him when he said saw turn off and testify "appellant what appellant store as so. This come into witness’ did applies also why sought the same character from the witness Gaines. Such stated, As hearsay. proved by himself contest made several witnesses—and no whatever was thereof by act of his in every State—each deceased when avoiding *5 State, decided, him. v. about to meet Becker recently from Har State, Giebel v. 28 County, reported; ris not Texas yet App., Crim. 273; State, State, 22 Texas Crim. 151; Bradberry App., Angus v. v. 52; State, 204; Harrell Crim. 29 Texas v. 39 Texas Rep., Crim. App., Vol. 80 Crim.-37 Reports.
578 Texas Criminal Red 414; v. Texas Crim. Hardeman on 111; ed.), see. 119a. Cr. Ev. (2d Underhill deceased, have his McBride sought testify Appellant but time after the fist fight some between he, deceased, always gun before the hini killing, told carried shown The was'not State this because it objected car. at the time the court of this before the killing, apprised appel- of materiality.” “I do not see remarking: on his car lant togo himself was the effect that deceased did getting a pistol, when he him for the purpose occasion killed went but direction, in that only or for other started purpose. not on the occasion distance. that he short knew Appellant circumstances, Under the gotten car, from the otherwise. pistol admissible, even if it had been inadmissible, said testimony immaterial, no error. presented of it would excluding that deceased and introduced showing Appellant night killing had a before church fight son grown detail the whole After witnesses affair. town Milam, the State Mrs. who testified over done, been introduced son at the what was done said time which objections by appellant’s cause about and was the This fight. brought transaction, under the there- same statute and clearly decisions C. have under, P.) was admissible. C. (Art. the occasion for the nor the particulars thereof without fight understood stated thereof to them. cause testified Appellant himself' having him morning told all about it the before and night his son had before had had Rev. Beck killing, just killing Mr. tell it was after all facts just again particulars, these were known him that he killed deceased.
The court a correct murder man- gave charge, submitting both As convicted jury. manslaughter slaughter murder, murder out of the case. In the acquitted passed the court a full and manslaughter, gave charge on correct charge makes, thereon, objection. to which no appellant made, special charges asked several on He, however, subject of self- them, these. Hone copy It unnecessary defense. is except have did should been give, given. one the court Hone which met has charges requirements many specially held (Byrd court. times and uniformly Texas Crim. Ryan v. with Rep., 628.) But that, all of them. out considered regard objection necessary upon any is always passing refused, to consider whole or those which charge charge, and if the whole given, subject the court then no error committed. issue every properly, presents his main charge self-defense, On his instructed claimed the jury: *6 Watebs The State.
2927.] injury “13. A serious bodily reasonable death or apprehension life will excuse in the use of all force protect person necessary danger or his it is be actual there should person, necessary ap- he acts as it danger reasonable providing upon apprehension . time, to him peared from at the such cases standpoint is in party under such real no event bound acting danger apparent or. retreat or order to avoid the his assailant, necessity killing apparent assailant. defendant, “If from the evidence believe that at the time the you deceased, Waters, Thomas killed Milam, Phil Milam the said Phil defendant, make, or was about an making, attack Thomas from the manner character attack Waters, of such
the defendant reasonable expectation or fear of death or serious or bodily injury, and under such reasonable acting expectation fear the defendant shot and killed the deceased, then in such event will find you the defendant not guilty. “14. In whether or not determining at the time the shot defendant Phil Milam, he was danger of his life or sus- losing serious also
taining injury, and bodily whether determining or from the facts and circumstances in the case at shot the time he believed deceased he that he was in danger of his life or losing serious sustaining bodily injury, and had a reasonable apprehension of such danger, will view the transaction from the defendant’s you from standpoint and no other and if reason- standpoint, you doubt able as to matters such will you give defendant the benefit doubt such verdict not by j'our say guilty. “15. The defendant in a criminal case is presumed be innocent until guilt legal established competent evidence beyond doubt, reasonable and if after heard all of having evidence have reasonable applied you doubt of his guilt will him.” you acquit
And in addition gave charge requested by appellant the very in which he it: “If language you find and believe from defendant, Waters, evidence that the Thomas Phil killed Milam at indictment, time alleged further place you believe thereto Phil Milam had made said threats the defendant prior harm to do him serious or and that bodily injury, the time of the said some act then done Milam manifested an killing intention made, threats or do defendant execute the so some serious bodily that at the time of the killing believe said Milam injury, you an unlawful attack the defendant, made making or was . some act or acts done, produced or was defendant’s doing a reasonable mind, standpoint, apprehension as viewed at the hands of bodily injury serious Milam, assault or death or himself from such danger, said Milam to protect that he killed justifiable self-defense, then said killing danger, apparent Beports. 80 Texas Criminal so find you or have reasonable doubt as to whether said killing justifiable in self-defense will find the defendant not you guilty.” These charges submitted issue every raised by testimony as appellant’s claimed self-defense. No others should given. *7 The judgment be, is, should and ordered affirmed. Affirmed.
ON REHEARING. February Judge. Presiding DAVIDSON, appellant Deceasedand friends and in personally time, however, prior business relations. Some to the homicide there first, came a difference minor at them, between but more acute and of more Deceased magnitude as'matters progressed. was rather at aggressive him to hostility appellant, engaging least once in a personal encounter, followed threats of violence. threats, These them, some of were communicated to appellant. This caused appellant to avoid with and he would contact evade or turn when occurred. away prospect meeting of both reputation evidence; deceased parties was placed being quarrelsome and violent man one execute any and who would threat he make; different might these good appellant On one with deceased respects. occasion had a appellant difficulty while out driving his auto. This pasture occurred deceased, the details mention, of which are unnecessary to be stated that rather chastisement at the appellant a severe received hands difficulty of deceased. a son had a Deceased and of appellant at the just church on to the homicide as the con night previous In this the son of sus gregation separating. difficulty tained fracture his arm. This to was communicated his son that and while en route night, following morning usual, bank he mail. As purposed, go by postoffice get he he saw deceased at or near the approached postoffice place to turn different and went of the town proceeded away, Both came to town in their autos. stopped. Appellant stopped parties hall, his auto near the which was also near There pool garage. a vacant between the two space buildings. Appellant Beck entered this vacant some distance into from the place, it back going street, and in a conversation which Beck informed engaged its between deceased details son difficulty at the church. While thus engaged night previous passed the sidewalk, and after he re space walking along passing open buildings where appellant turned and came in between and Beck deceased and and deceased were. Some words between passed onto left. Beck and went out the street Immediately sidewalk, occurred. shooting is that
The State’s contention facts and circumstances show or that deceased from the vacant space, to show out coming tend 1917.] v. The State. was about to door, open hall as he pool
walked towards dif- There times. is a sharp shot him three enter this door appellant circumstances the acts and ference as position parties testified version a witness at -the State’s Illustrative of juncture. fur- two buildings, that deceased went into the between space until Milam came ther testified: “It little while after door. He hall out of there rather fast and went to pool walking came. over whence back his shoulder the direction looking around came hall door. At that time Mr. Waters got pool there hall, around north came corner when pool he came when There three shots fired—two shot twice. time at the around. Milam door Mr. was standing trying other. He was two one shots were fired trying open first when the hall door with hand or other open one pool facing whirled When the second shot was fired he shot fired. door open Milam was Waters. I which hand say trying couldn’t *8 door he men, open with. was but trying I both was watching that door. After screen when the first shot was fired. There was a forward Waters took two fell, steps two shots were fired Milam and third fired the and shot and When Mr. Waters again away. walked know don’t his shoulder. I Mr. Milam was kinder on resting shot, down, as was clear on one shoulder.” he but resting that after from deceased, emerging contention was Appellant’s door, hall beyond walked the front street space, along pool vacant de- vacant the street as from the onto appellant emerged space and him, met or near the door ceased was and at facing back coming de- His that hall, occurred. evidence is and pool shooting about ceased Beck were and had talking came to where he and and minutes; that Beck the incidents fifteen was twenty narrating night between circumstances of the difficulty previous that entered the engaged son and the so deceased while ten that them; about feet of vacant advanced within space angry; jumped deceased excited and that appellant up appeared deceased, “Milam, his and said to don’t pistol drew sitting position, out; That about time come here.” Beck the same told Milam to get around the disappeared that Milam corner of out stepped that him there is deceased his hand building, and evidence behind in a at he appellant. thinking the time he was approached Appellant, of the sidewalk with his in his hand. walked to edge pistol trap, he deceased in a sidewalk saw towards him coming Upon reaching excited, right with his him. hand behind threatening attitude, looking in front of near the door At time deceased was pool “I juncture appellant says, pulled at this my hall. Just pistol as I as fast could of an just pull trigger shot three times automatic pistol.” location of the men, as and that he
Beck testified and appel- vacant buildings space lant were between deceased Bepobts. 80 Texas Cbiminal them; this then turned came in towards passed space he look”; appearance of “a and vicious indicated scary God, called here. “Phil, who don’t come in appellant’s name, said, By don't come in here.” Waters and Phil pushed pushed Witness “I says, being words out, run or There were get something. told said the exit between them His evidence that I didn’t catch.” shooting then to the deceased and movement and up of appellant Continuing, practically testimony. given by appellant I first time “When out street, witness testified: I got saw Mr. he way, Milam back round turning coming direction, he act of southern had been turning. going came state looks. He back towards where was. I can’t I look, towards us and coming vicious, scary looking, might you say, there. wild. He was the north. Mr. Waters wTas looking toward knew was done so tell where he was I quick you hardly looking. behind Waters, he was at hand I believe his looking though. him somewhere. I don’t know what time it there. can’t I placed tell in attitude the shots. just coming. what I heard When shot door. the first was fired Milam was front of the hall pool hall door. He had advanced to about in front of the Mr. pool shots fired three at him in hall door. He got front pool him. don’t know at time—and door—I what right hand behind He didn’t man very advance much because the shots were so quick couldn’t advance. I didn’t have time observe any change deceased’s attitude before the At the the first shot shooting. time threw fired I looked done so both—just my glance—it was quick. As I can the first shot took effect the left say, nipple well as about door, don’t he kinder—I know what—then he the screen grabbed shooting around and sinking. turned While kept gradually *9 on, some time grabbed was the Milam the screen going during shooting, the about door. He screen the first shot. grabbed along door he down.” fired, After the first shot was kinder dwindled testimony the retirement to the disagreed After as jury interrogatories wrote out under the direction of the court of Beck and Beck. of the as follows: interrogatories to asked One is “What be and from deceased, saw the deceased’s when attitude you you did do as to he was about do?” The what did think bill you exceptions that counsel stated in the states by appellant’s pres- drawn that matter was not testified to of the witness and jury ence to be answered. Appellant excepted, not that question would permit testified on the subject that the witness had covered by claiming answer the have and that to would question permitted inquiry, that he first former when arrived testimony that stated advancing -he saw deceased buildings between in the space street at him in an looking straight behind with his hand manner, get that he east so as to jumped threatening angry the defendant and the deceased, line of between range out of y. [Watebs The State. 1917.1 fire lie deceased to that he was in as he expected believed danger at that he had time. any bill, stating The court qualifies the entire part and made a transcribed proceedings stenographer bill, disclose of the fails to and reference to this stenographic report the court that made statement the effect to the to jury testimony, about had in the witness’ subject inquired not been touched and fails to question disclose that the court to ask the quoted refused All that is that several propounded jury. ques- it says about, are new matter. “He ask those didn’t and I can’t testify, tions matters." condition. This bill leaves the matter in rather a confused If repetition witness testified as was as to the expected of his former it should testimony, important heard it. asked The court could not decide this not question. to asked, state what the witness not sworn. The witness was testimony was the witness, of the state province former what was. The court limit the could examination or the answer of the only wdtness to his statements. The question as former not matter, to new such testi- testify court could authorize but the mony, court could not inhibit witness from repeating of the reply jury. The witness query ought state whether he so and if he permitted before, testified did, then the was entitled hear it. This regard much said in to this matter. It trial. may occur another is not decide province the court to whether or not he not nor what did reply before. It also from the that Beck appears seen part difficulty occurred the church the homi- night prior
cide between deceased and son. He en- saw the actual it, counter heard the words immediately all 'which preceded after the occurred was dismissed meeting congre- adjourned This gation leaving. however, witness, did not see anything occurred before that time, or which have been the cause inducing He informed difficulty. difficulty as part which he witnessed, appellant’s son also related substantially did Beck. State introduced the widow of and she testified that before the her dismissed she and meeting husband were in church a sitting bench or so in front of appellant’s son. around, She stated that her husband nudged her and she looked man “twiddled her and young her husband his right by placing hand his nose and his fingers at them.” wiggling This part the transaction was not evi- so far as the communicated discloses, dence insists that inasmuch" transaction *10 between the deceased and son appellant’s became material and ad- missible on the issue of motive the and giving of the jury knowledge information with reference subject which the appellant at time the and homicide, have affected him action may during the on the difficulty, regard his mind operated difficulty Reports. Tesas Criminal transaction in the and this that true,
resulted the killing, being part irrelevant, inas- that him, and having communicated as the Mrs. Milam much conduct of son detailed by intro- an insult arouse the of the its calculated to resentment mat- In this duction to his case. appellant prejudicial we think not have operated upon ter correct. appellant on the mind of unless he -this movement was aware of appellant appel- son, impression adversely of his have left a decided fact, it did when, lant the minds of as a matter of reference enter into the motives or the actions with control appellant being matter, and an important to the homicide. We think this was reversal unknown nature requires was of such appellant, the judgment. homicide of the Nobles that at the time
Tony testified the State of the was in the hall and position saw pool shooting at windows, and, that substantially, one parties through approaching time the deceased was shot south and he was going hall door hall that about the time he reached door, pool pool was lying shot fell he twice, him and after him, with under little bit on side arm right back and raised, Waters, “Oh, don’t, don’t said, a little and Mr. up please just shot him more,” That shoot after that groaned. Mr. side, That Mr. on his Milam shoulder again. lying feet from Milam about came within nine eight stand before he fired last While this witness shot. substance, him, in laid asking predicate impeach if it was not fact that he to the witness Eubanks had proposed if he was a sum he would not leave the testify country paid Eubanks, this, whose Nobles called money. denied On cross-examination prose- of Nobles. testimony impeached testified, Nobles asked Eubanks if he knew what cuting attorney the state- no, but that he had heard that he denied making he said here took and reprimanded Just the trial judge inquiry ment. up This been invoked. rule, for disobedience to which had the witness he, asked while judge given reprimand questions and threaten- bill, angry in the was commanding, flushed, as described that he witness said inquiry, response to ing; and him that the witness Nobles Waters, the told Mr. believed in- retired the and conducted a further it. denied the violation rules relating into the transaction quiry discloses, ap- record no was made inquiry So far court. Eubanks, were addressed but the inquiries pellant, investigation time had'been was called spent some after the courtroom the court in their said: entered back, hearing and as over All this occurred objection of appellant. $25.” “Assess his fine but was court, is not by- This bill approved up by proved were taken, affidavits two jurors stating standers. *11 y. The 1917.1 officer, the the in the the returned to courtroom the jury custody
court said “Assess in their loud and voice: hearing commanding $25”; fine at the against, did not know who fine that Waters, Eubanks and defendant supposed against their deliberations the matter to some extent. was discussed
The court shows which, substantially, himself a hill prepared when it with someone that the witness had conversed developed Eubanks about con examination and Nobles, stopped ferred with the rule of the court about the disobedience to the parties con learned from the witness that whom he with party fine ferred was the he then assessed appellant; retired jury witness, and that while counsel for was persisting appellant in, in arguing against brought court, ruling jury and as they were “Assess coming again: announced fine at $25.” This bill as makes no reference to the court prepared the manner of the court in the We conduct of the are proceedings. opinion.that record discloses a of facts which were not author state ized cause. and calculated to procedure, appellant’s prejudice The witness Eubanks Nobles, who had impeached given damaging testimony against This appellant. was controverted by appellant his witnesses. The impeachment of great importance proceedings were calculated give impression jury in the opinion of the court the witness and had been serious guilty of a violation of the rules of the court instructing witnesses not to talk to anj'one, and this attitude of the court calculated induce the to discredit jury witness Eubanks. It was calculated also injure disobedience of court’s order in regard to with talking under the witnesses rule. The court’s in this conduct matter in the presence was not think, correct, and was an invasion appellant’s right to have the judge refrain from any expression conduct im which was calculated to press jury to disadvantage cause, of appellant’s or to discredit his witness with the This matter jury. was fully discussed, and the citdd, also, authorities Scott v. 72 Texas Crim. Rep., See, Deary v. Crim. Texas Rep., Drake 143 S. W. 1157; McMahan a number quite cases collated Mr. Branch in his work on Criminal Law, section 363. We think this was such that a reversal grave importance should be awarded. The matter should so the been handled would not have been informed of what occurred. the court charge is complained of in several respects. Speak-
ing enunciated generally, charge well, principles fairly but still is that about the there which charge shows that it was given in rather a than an affirmative negative form with regard to the question self-defense as of' its various forms. presented asked inartistic, somewhat special yet serious presented question Bepobts. 80 Texas Cbiminal case, the court. This given by sub charge, stance, was to the effect that right have the informed in the fire charge on self-defense that if he had the shot, the first his life danger then until continued *12 viewed difficulty. ceased his There of standpoint evidence a that bjr number of witnesses in of appellant’s theory support when the shooting began end, deceased continued its that his hand behind him a to impress in manner calculated him, in with the towards animosity connection character of his threats draw a weapon he about to previous conduct, that witnesses, to kill or injure him. and that of his testimony, Appellant’s was to the succession. effect that shots in rapid three fired rapid The in State’s were fired witnesses that two of the assert shots succession, during that interval one of them was fired after an which the deceased sidewalk. In this of fallen to the state embody case are of we that was entitled a opinion in this view ing mentioned, support of above of principles law of 306, 137 State, case cite v. 62 Texas Crim. Stanley Rep., 494, S. 703, W. Rep., State, Rep., 214, and Powers v. 69 Texas Crim. inaccurate, 152 S. 909, to the that W. effect while it was somewhat Rep., it was sufficient to court submit form require the an accurate State, involved, of proposition law authorities under the of Clark v. 455; Rep., Crim. Texas 293; Smith v. 57 Rep., Jones 44 962; Texas Crim. 405, v. Sargent S. W. Rep., v. State, 35 S. W. Drake Crim. Rep., Texas 143 S. Rep., 433, W. Woodward v. we are trial of was in error in this opinion court failing give phase of the law. is it
There that if might another be mentioned that so proposition occurs ad- regard another there be no error to the trial may mission of came testimony. as to whether or question deceased was the habit of auto. in his The rule carrying pistol accurately stated, he while there has been may no qualification by that where a opinions deceased carried appellant knew pistol exhibited, it it, was admissible, and that where he or was knew aware he in the habit be of fact of pistol, a would carrying admissible in a of danger, case where facts apparent indicated deceased his hand to where he be a placed expected would to have pistol. is as it be, While the record not as if might clear another yet trial offers this character of and it testimony, shows tends or to show his of fact deceased either knowledge pistol, carried auto about his under the person, circumstances case or of ought The fact that knew we think this he go jury. or was the habit of matter pistol, carrying it, brings carried That his notice. he was habit directly to of carrying pistol, his reputation, might or such was prove. object sort is to in matters of this notice reputation proving general convey The State. 1911.1 is itas reputation, to be reason of the party general affected knew everybody is, therefore, it supposed general reputation, course, Of reputation. the fact as an general inference from such or matter it a material become it he it if had a prove knew Knowledge his defense. service to How testimony. sort all this accused of the fact purpose material to be such would seem knowledge he obtained knowl- and his the homicide of it character. If he was aware prior act him to induced case, the trial that entered into edge of to consider. did, it relevant fact for the jury be a This is with so shooting. for his action in reason have patent refers to whether testimony, reference to all this character of whether it, knowledge of arms carrying If threats. rule covers the question he' knew it The same directly. supposed and would be the threats he act knew being fact that in least it a relevant would be view, *13 could it, the threats believed he informed that deceased made had arises from some dem- act, danger in a apparent still case where threats. to execute his onstration or overt act deceased on comes another trial if this matter We attention to this so upon call evi- did, notice in such as to shape appellant, probably bring should In this ease the relevancy dence be admitted. particular trouble, be on the morning because might apparent, it, the trouble morning following was the just preceding some had broken arm of son by throwing which deceased a and the fact that deceased him, wire wrench at nippers monkey had the habit and custom of to the gone postoffice, realizing had and there morning get mail, togo postoffice him, for as it waiting taken his stand and was have appeared, have facts indicate it follow- then appeared, him almost into the vacant under ing the conditions immediately space stated, it left the already might impression and circumstances have induced him mind believe deceased with him from the brought pistol auto, view especially fact when entered the vacant where and Beck space him, hand on he had his behind- and when appellant confronted him him, afterwards he street still had hand immediately behind it fact or consider and was circumstance to as to whether or not he it armed himself with the auto. As a fact, matter pistol seems have that after developed been not shooting deceased did etc., on his but he did have the person, wire pistol nippers, which it seems from the was in the habit of on using broils and engaged whom So people fghts. trial upon another notice of the fact or was informed that habit in his carrying pistol car, under the circumstances of this that fact ought go case jury. That, of course, will another trial under the -facts develop upon and circumstances. Beports. 80 Tesas Criminal rehearing As are the ease is the motion opinion presented the affirmance set reversed granted, should aside, judgment be and the cause remanded. and remmded.
Reversed Judge. PBENDEBGAST, This cause,and raised every question it, doubt, was, without decided herein correctly opinion original the full then constituted. court as The motion for should rehearing overruled. re motion, be I dissent from the of said granting' versal. The under should, facts, affirmed, case law and be reversed.
J. L. Howard v. The 21, February No. 4332. Decided 1917. —Murder—Continuance—Argument 1. of Counsel. judgment was reversed and the cause remanded for argument Where other cause objection overruling applica- than tion for of counsel and the of the continuance, need same not be discussed. 2. Appeal—Jury Jury —Same—Practice Law. swearing attending Where the facts homicide nothing to do with the will not discussed. evidence be —Same—Jury Jury Law—Swearing Jury. Where, murder, appeal conviction an from a was conceded and appeared qualification exceptions, of the bill of from the impaneled try particular ease tried the case were sworn when who as Procedure, but had sworn provided article Code Criminal day during of court which the first of the week term defendant the tried, Statutes, provided by Civil the same was reversible article Revised Following App., 403, Arthur v. error. Prendergast, Judge, dissenting. other cases. *14 Jury. 4.—Same—Waiver—Oath of qualification judge exceptions Where the defendant’s bill does 714j required by oath law under article waiver Code Criminal not show a Procedure, so, do or it defendant was called to court, arise; by question does not besides defendant attention waive could not ease, jury felony trial jury jury try and an unsworn not a is felony Distinguishing ease. Caldwell App.,
Prendergast, Judge, dissenting. Construed—Swearing Jury—Presumption. 5.—Same—Statutes Procedure, Revised Code of Criminal had the record on Under article jury to be sworn silent as to the failure article under appeal remained Procedure, presume this court would 714, was as trial sworn Criminal Revised Code judgment is not conclusive where attacked sworn, presumption is but this statutes, truth the attack is conceded where the by provided is shown court, appeal, and it record law, and the cause other cases. judgment remanded. reversed required Prendergast, Following App., 1 Texas Crim. Smith v. dissenting. Judge, Tried of Henderson. before Court below the District Appeal Prince. Hon. John S.