W. R. Johnson v. The State, 27 Tex. 758

Moore, J. We have given to the questions in the record now before us, that careful and patient consideration which the nature of the case demands, but after the strictest scrutiny, find no error to justify the reversal of the judgment. Most, if not all of the assignments of error worthy of consideration have, in fact, been passed upon and settled, adversely to the appellant, in cases heretofore before this court. In disposing of the questions now presented, it is therefore scarcely necessary for us to do more than to refer to our former decisions.

In responding to the errors assigned upon which we feel called to comment, we will follow the order in which they have been presented by the counsel who have argued this case for the appellant at the bar. 1. Although it is admitted that the court below erred in holding Bondurant to be a good juror, (Const. State of Tex., art. 3d, secs. 1 & 2; C. C. P., art. 575, clause 3, and art. 578;) yet such ruling, in view of the facts presented in the record, occasioned no injury to the appellant, and consequently furnishes him no ground for the reversal of the judgment.

It does not appear from the record, that the appellant exhausted his peremptory challenges. From its silence, we must infer the contrary. The legitimate inference from the facts disclosed is, that, without exhausting his peremptory challenges, the appellant obtained from those surdinoned on the first and second venires, a jury possessed of all the qualifications prescribed by the statute, with each of whom he was fully satisfied, and to whose decision he was willing to submit the determination of his guilt or innocence.

A contrary ruling by the court would have given the appellant no greater number of persons from whom to select his jury than he has had. It has not lessened the panel, from which he was able to make a satisfactory choice. The mere surmise that he may have been induced by this ruling of the court, subsequently to accept jurors who, otherwise, he would have rejected, is not sufficiently sustained by reason or probability, and is much too hypothetical and imaginary to authorize the reversal of the judgment by this court. (Burrell v. The State, 18 Tex. R., 718: McGowen v. State, 9 Verger, 184.) 2.

In response to the second and third assignments of error, it is sufficient to say, that as far as it can be seen from the record, the evidence to which objection is now made went to the jury without objection. That this can not be done for the first time in this court has become, long since, too well settled to be the subject of comment, or to require the reference to authority in its support. No reason has been assigned, and none is seen, why evidence of the particular character now in question, should furnish an exception to the rule. 3.

There was manifestly no .error in the refusal of the court to admit the deposition of the witness, Henderson, in evidence to the jury. Depositions in criminal cases wore unknown to the common law. They can only be received in our courts now, upon the conditions and with the restrictions prescribed by the Code of Criminal Procedure. Tested by it, the deposition was wholly and totally inadmissible.

The consent of the district attorney, that it should be taken as was done, to be used upon the final trial, as stated in the bill of exceptions, could not abrogate or supply the requirements of the code, or give it effect as an instrument of evidence where it can not be so held by the law, without the aid of such agreement. (C. C. P., arts. 764, 780.) 4. The fifth assignment needs no remark, beyond saying, that the evidence objected to has no connection with or bearing upon the issues involved in the case, and was only intended as a predicate for other testimony which was not admitted by the court.

It is no.t embodied in the statement of facts; and if not expressly withdrawn or excluded where the purpose for which it was offered failed, this was no doubt regarded as tacitly done. It was so entirely insignificant as to attract, during the further progress of the trial, the attention of neither the court or the attorneys of either party. 5. The omission of the court to instruct the jury as to the circumstances which will reduce homicide from murder to manslaughter, is assigned as the sixth ground of error.

In cases of felony it is made the duty of the court, by art. 594 of the Code of Criminal Procedure, whether asked by counsel or not, to deliver to the jury a written charge, in which it shall distinctly set forth the law applicable to the case. As has been often held, however, by this court, it is only necessary to give such instructions as are applicable to every legitimate deduction which the jury may draw from the facts. (Daniels v. The State, 24 Tex. R., 889; Monroe v. The State, 23, Id. 210; O’Connel v. The State, 18, Id. 343; Robinson v. The State, 15, Id. 311; Henderson v.

The State, 12, Id. 537.) A detailed statement of, or comment upon, the facts of this case, would be an unpleasant as well as unprofitable task on our part. It is sufficient for us to say that we are clearly of opinion that the judge in the court below was correct in holding, if the deceased was killed by the accused, which was not controverted, that the ease was, unquestionably, either murder or justifiable homicide.

The law upon this subject, if it were not sufficiently so before, has been clearly and conclusively settled by the provisions of the Code, so that'“he who runs may read.” And it is time that it should be looked to by every one as his rule of conduct, instead of his own passions, or a pseudo popular sentiment, that any one who has threatened another’s life is an outlaw, or beyond the pale of legal protection, and may be slain with impunity by his enemy. If they do not, it is at least the imperative duty of those who do not make but administer the law, to follow and enforce its plain and obvious commands.

The circumstances under which a party, who takes the life of another, may rely upon “ threats ” as an element in. his defence, is clearly shown by art. 612 of the Penal Code. If, at the time of the homicide, there is any act from which the accused may reasonably infer an intention to carry them into effect, he is justified in resorting to such means as may he then in his power, to defend and protect himself against their execution. If death ensues, it is justifiable homicide.

But in no case under the provisions of the Code, or out of it, if we were permitted to look elsewhere to ascertain the law upon the subject, can it be held that mere threats, or threats unaccompanied by some demonstration, from which the accused may reasonably infer the intention of ■their execution by the deceased, either justify such homicide, or reduce it from murder to manslaughter.

A different view of the law has been sought to be maintained by a reference to the third clause of art. 596 of the Penal Code, which is in the following language, viz: “ The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment, or terror, rendering it incapable of cool reflection.” This clause is introduced into the Code in connection with preceding clauses of the same article, for the purpose of more clearly defining what was meant, in the definition of the offence of manslaughter, by the expression, “ under the immediate influence of sudden passion,” and it is preceded by the declaration, “ that the provocation must arise at the time of the commission of the offence, and that the passion is not the result of a former provocation.” Manslaughter itself is defined in the code as'“voluntary homicide, committed under the influence of sudden passion arising from adequate cause, hut neither justified or excused by law.” The doctrine contended for must, therefore, be narrowed down to this simple proposition, that the mere fact of being encountered or overtaken in the street, or public highway, by one who has threatened another’s life some months before, without any act whatever, indicative of an intention of then carrying such threat into execution, “ is an adequate cause” to excite such “ anger, rage, sudden resentment, or terror,” as renders the mind “ incapable of cool reflection.” The bare statement of this preposition is sufficient for its reformation.

If such was the case, the" language of passion forgotten with the occasion which gave it utterance, the idle tattle of the silly or the inebriate, must be paid for AVith the penalty of life. A full floodgate would be given to the most wicked passions, and murder, fearful as it already is, in a tenfold greater degree would stalk through the land, clothed in the panoply of the law. 6. The seventh assignment of error is based upon the supposition that the charge of the court withdrew from the consideration of the jury the previous threats of the deceased to take the appellant’s life.

We cannot, however, regard this as either a fair or legitimate construction of the -charge of the court. Its import is obviously directly to the contrary. The jury were informed that they had “ the right to take into consideration all the facts and circumstances surrounding the parties at the time of the killing, which were given in evidence,” &c. What facts and circumstances were the jury to understand were here referred to ? Can any sane mind suppose that the court was thereby restricting the jury to the mere consideration of what transpired at and immediately preceding the homicide ?

Ho facts or circumstances had then occurred to which this part of the charge could have any appropriate reference. The appellant had attempted the development of none such as the basis of his defence. Full two-thirds of the time the court was engaged in the trial of the case, however, must have been consumed in developing and expounding the evidence touching the alleged threats, conspiracy, and laying in wait by the deceased to take the life of the accused, as the ground of his defence.

Although these things Avere antecedent occurrences, is it meant to be said that they were not vital, living facts and circmgstances surrounding the parties at the time of the killing ? How can any facts and circumstances be said to surround parties, save as they connect themselves with, and are explanatory of their conduct and intention in the particular matter diwu in question ? Shall not all those, which are legitimately so connected, be properly said to surround the parties ?

If more than we have said were necessary to vindicate this part of the charge from the severe criticism that has been passed upon it, it will be amply found in what is said in the saíne connection in the subsequent part of the charge. For the portion of it against which this objection has been pressed with so much zeal, is but an isolated paragraph culled from the body of the charge. .The fair and natural construction of the entire charge, and especially when taken in connection with the facts transpiring during the progress of trial, leave not the slightest ground for its misconception.

In connection with the objection to the charge, it is insisted that it was, in fact, misconstrued by the jury, and in proof thereof the affidavit of three of the jurymen was presented to the court on the motion for the new trial. Aside from the fact that this is not recognized by the code as a ground for a new trial, we may say that no case has yet occurred in which such affidavits have been tolerated in the courts of this State for the purpose of impeaching a verdict.

And when we consider the wide door which would be thereby opened for improper practices, we would hesitate long, and feel ourselves constrained by imperative necessity for accomplishing the ends of justice, before we could give our sanction to such a practice. Although a few isolated cases may be found in which such affidavits have been received, the better practice seems to have been established in most, if not all the States except Tennessee, to reject them. The question has been before this court heretofore on more than one occasion, and it has been uniformly decided adversely to the appellant. (See Little v.

Birdwell, 21 Tex. R., 612; Kilgore v. Jordan, 17 Id., 341.) We see nothing in the present case to invite us to a different line of decision. The affidavit of the jurors is not more clear than the instruction by which it is alleged they were misled; and if they failed to understand it, with all thé light shed upon it by the transpiring events during the progress of the trial, it may be well questioned whether they fully understood the true import of the ex parte affidavit which was procured from them. 7.

It would be a waste of time to comment upon the facts for the purpose of showing that the verdict of the jury is sustained by the evidence. The seventh assignment may, therefore, be passed without further remark. 8. The eighth assignment of error is the refusal of the court to grant a new trial. We have already partially disposed of this assigmnent.

We need only add in addition to what we have already said, that while it appears from the different affidavits a very irregular, loose and reprehensible practice in respect to the disposal of the jury in cases of felony, seems to have prevailed during the progress of the case, yet nothing is shown which required the court, under the provisions of the code, to grant a new trial.

Article 672, of the Code of Criminal Procedure, expressly forbids the granting of new trials in cases of felony, except for some one of the causes enumerated in said article. There are but two of these which could be tortured into the slightest application to the grounds relied upon to support this motion. 1st. Where a juror has conversed with any one during the progress of the-case. In one of the affidavits before the court, it is stated that one of the jurors and the affiant spoke together of the case during the trial.

The juror, however, swears that, when approached by the affiant, he informed him that he was upon- the jury and could not talk to him. And the truth of this statement is subsequently admitted by the affiant. The juror, then, did not converse about the case, but, on the contrary, refused to do so. 2d. The eighth clause in the

article specifying causes for the granting of new trials, authorizes its being done, when, from the misconduct of the jury, the court is of opinion that the defendant had not received a fair and impartial trial. When the right to the new trial is rested upon this ground, the misconduct of the jury is evidently not of such character as unconditionally entitles the defendant to a new trial under some of the clauses of said article. The granting or refusal of it is, therefore, left to the discretion of the court, to be guided inyts determination by the application of the facts to the result attained in the verdict.

If the new trial was claimed in the court below upon this ground, the court, unquestionably, did not err in refusing it. In view of the facts of this case, as they are presented in the record, it cannot be plausibly insisted that the júry would have been warranted in finding a more favorable verdict for the appellant than they have done. Some other questions have been presented in a brief of considerable elaboration, which we find filed with the record, but as their discussion seems evidently intended rather as a criticism upon the law, as already recognized and settled, than to invite its judicial

interpretation, it is unnecessary for us to say anything further than we have now done. There is no error in the judgment, and it is therefore affirmed. Judgment affirmed.