George Sterling v. The State, 15 Tex. Ct. App. 249

Willson, Judge. 1. A copy of the sheriff’s return upon the special venire, certified to by the clerk, was served upon the defendant one day before the trial, which copy contained a list of the names of persons summoned to serve as jurors on the trial of the case. In preparing this copy the clerk omitted to copy the official signature of the sheriff, which appeared upon the return. Defendant moved to quash the service of the copy had upon him, because the copy was not a true one.

Thereupon the court permitted the clerk to amend the copy by adding thereto the official signature of the sheriff as it appeared upon the return on the venire, and overruled defendant’s motion to quash; which action of the court was excepted to, and is claimed by defendant to be error. We are of the opinion that there was a substantial compliance with the law in serving the defendant with a list of the names of persons summoned on the special venire. (Code Grim.

Proc., Arts. (116, 617.) It was not required of the clerk to make a copy of the sheriff’s return upon the venire, but merely a copy of the list of names of persons summoned by virtue of the writ. It was not material, therefore, that he should attach to the copy the official signature of the sheriff; but, even if this had been necessary, it was not error to permit him to amend by attaching such signature. (Washington v. The State, 8 Texas Ct. App., 377.) 2.

It is made to appear, by a bill of exceptions, that after six jurors had been sworn and impaneled in the case, the court announced its intention of adjourning until the next morning, whereupon one of the six jurors impaneled, J. McFarlane, made known to the court that his family were very ill, and needed his attention that night, and requested the court to be allowed to go home and remain with his family during the night.

Defendant and his counsel agreed that the -juror might go home and remain during the n ight with his family, in charge of an officer; but the court would not allow this, but remarked: “If you will all agree to the discharge of McFarlane, he may be discharged,” the attorneys for the defendant and the defendant himself all being present and near together. Defendant’s attorneys spoke in reply to the court, and agreed that the juror might be discharged, and the defendant made no objection, and the juror was discharged.

It has been settled by the decisions of this court that when a juror has been sworn in a capital case he is impaneled, and must remain upon the jury to the termination of the trial. The court has no power to excuse a juror impaneled in a felonj^ case. In case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the only course the court can take is to discharge the jury and to proceed to form another. (Hill v. The State, 10 Texas Ct. of App., 618; Ellison v. The State, 12 Texas Ct.

App., 557.) True, the defendant might waive the provisions of the law re quiring jurors impaneled to be kept together until the termination of the trial, etc. (Code Crim. Proc., Art. 33); but such waiver must be expressly made by the defendant himself, and cannot be made by his counsel so as to bind him, nor can his mere silence or failure to object be construed to be a waiver by him. (Early v. The State. 1 Texas Ct. App., 348; Hill v. The State, 10 Texas Ct. App., 618.) We think the court erred in discharging the juror McParlane. 3. Several objections are urged to the charge of the court.

In the main we think the charge is correct, but in some particulars we consider it imperfect and incomplete when viewed with reference to the facts of the case. Defendant was walking with Melinda Johnson, a woman who had requested him to act as her escort home from a party. Deceased approached this woman in an angry,, abusive and violent manner, and struck her on the head with a stick, and was threatening to strike her again with the stick when the defendant shot and killed him. This occurred in the night.

The stick used by the deceased in inflicting the battery upon the woman was as large as a good sized walking stick, and was green wood. Deceased also at the time of assaulting the woman had a knife in his hand. This state of facts, we- think, demanded from the court an instruction explaining the rules of law applicable to the interference of a person in defense of one who is unlawfully and violently attacked by another.

If the circumstances were such as to make it reasonably appear to the defendant that the deceased was making, or about then to make, an unlawful and violent attack upon Melinda Johnson, with the intent to do her serious bodily injury, and, acting under the belief that such was the intent of deceased, he shot and killed deceased, it would have been justifiable homicide. The same rules which regulate the conduct of a person about to be injured, in repelling an aggression, are applicable to the conduct of him who interferes in behalf of such person. (Code Crim.

Proc., Art. 86.) While the charge of the court presented to the jury the law of self-defense as it was applicable to an attack made upon defendant, it entirely omitted to explain the law with reference to his right to repel an attack upon his companion, Melinda Johnson, when the evidence showed that the attack by the deceased was made upon Melinda, and not upon defendant. 4.

Again, in charging upon manslaughter, the effect of the charge as framed, in explaining “adequate cause,” would, it seems to us, be to impress the minds of the jury with the belief that “adequate cause” in this case was limited to insulting words or conduct too female. XV e think the jury should have been further told that if they believed from the evidence that adequate cause, other than that specially named, actuated the killing, it would reduce the homicide to manslaughter. Adequate cause is not confined to the instances enumerated in the statute, but may exist in numerous others. (Guffee v.

The State, 8 Texas Ct. App., 187.) 5. By a bill of exceptions we are informed that the district attorney, in his closing argument to the jury, made use of some very harsh language toward the woman Melinda Johnson, who had testified as a witness in the case in behalf of the State. He denounced her as a whore, a prostitute, a notorious strumpet. There is no evidence in the record which justified these denunciations of the witness.

These remarks of the district attorney were not excepted to by defendant at the time, nor did the court interpose to stop them, and, as far as possible, remove from the minds of the jury the injurious effects which they might have produced. As far as we can perceive from the evidence in the case, the opprobious epithets used by the district attorney with reference to Melinda Johnson were wholly unwarranted and uncalled for, and were in our judgment very reprehensible and well calculated to excite the passions and arouse the prejudices of the jury, not only against the witness but against the defendant.

It was no j ustification of the remarks that Melinda Johnson and the defendant were negroes. They have the same right to the protection of the law that other people have, and should be dealt with by courts and counsel in the trial of causes in the same manner as other citizens are dealt with, in so far as their legal rights are involved. It is a practice altogether too common for counsel to indulge in personal remarks reflecting upon the character of parties and witnesses, when such remarks are not justified by any testimony in the case.

Such remarks should always be promptly suppressed and condemned by the .court, and especially in cases involving the life or liberty of the citizen. It should always be the purpose of a court, and of counsel engaged in the trial of a cause, to try the case, and not the individuals connected with it as parties or witnesses. We have made these remarks in no spirit of censure toward the learned judge and able district attorney who tried this case, but our purpose is to condemn a practice which is by no means unusual, and to call attention to it, that it may be, as far as possible, discountenanced and discontinued.

Opinion delivered December 5, 1883. Because of the errors we have noticed, the judgment is reversed and the cause is remanded. Reversed and remanded.