J. Richardson v. The State, 7 Tex. Ct. App. 486

White, P. J. In capital cases, it is provided that “ no arraignment shall take place until the expiration of at least two entire days after the.day on which a copy of the indictment-was served on the defendant, unless the right to such copy or to such delay be waived, or unless defendant is on bail.” Rev. Code Cr. Proc., art. 510. We apprehend, however, that no case can be found holding that the objection of no service of such copy can be raised for the first time, as in this case, on motion for a new trial. True, in the case of Record v.

The State, 36 Texas, 521, it is intimated that such practice was proper, but the exact question was not raised, nor was it essential that it should have been passed upon in that case. Wherever it has been properly submitted, it has been held that it was too late to interpose such objection after verdict and in a motion for a new trial. Roberts v. The State, 5 Texas Ct. App. 141, and authorities cited.

Such questions should not be permitted to arise, and especially in capital cases;, because, in addition to his constitutional right, upon demand, to have a copy of the nature and cause of the accusation against him (Const., art. 1, sect. 10), the statute prescribes that “in every case of felony, when the accused is in custody, or as soon as he may be arrested, it shall be the duty of the cleric of the court where an indictment has been presented, immediately to make out a certified copy of the same, and deliver such copy to the sheriff, with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the defendant.” And the sheriff is required to execute and return “ the same, with his indorsement thereon showing when and how the same was executed.” Rev.

Code Cr. Proc., arts. 504, 505. Whilst it is true that this privilege and right may be waived by a defendant, his having done so should not be left in uncertainty; but the better practice would be to have the waiver reduced to writing, signed, and filed with the papers of the case. If the objections as here presented in the bill of exceptions had been urged before a plea was entered, a refusal to have granted it would have required a reversal of the judgment. McDuff v. The State, 4 Texas Ct. App. 58.

A second error complained of is, that out of a special venire ordered of forty-eight men only sixteen were summoned. Defendant asked that, on account of the great disproportion in the number summoned, the trial should be postponed until another day of the term, and another special venire ordered, returnable on that day; or that the case be continued. This application was refused and the trial proceeded, five jurors being obtained out of the sixteen, and the court ordering the sheriff to summon talesmen to fill the panel.

As shown by the bill of exceptions, we cannot determine whether or not the officer has failed or neglected to do his duty. The return of the sheriff on the writ for the special venire should have been made an exhibit to the bill. Rev. Code Cr. Proc., art. 614. In the absence of this return, we must presume that the officer did his full duty. Upon a similar question in the case of Johnson v. The State, 4 Texas Ct.

App. 268, it was said: “ In proportion to the number of the special venire, we admit that the deficit [fourteen out of thirty-six] is quite large; and the proper and better practice, where there is a large deficiency, doubtless is to order the talesmen, and, after they have also been summoned, to then have the defendant served with the full list so completed. We know, however, of no provision of the statute requiring this to be done; in fact, the law seems to be.defective in that it provides for no such contingency.

No such right being accorded to defendant, and his abjection failing to show that the jury as selected, or any individual juror, was wanting in any of the qualifications prescribed by law, this court will not revise and reverse the action of the lower court in this particular, when, to say the least of it, the action was not illegal.” The same rule was held in Roberts v. The State, 5 Texas Ct. App. 141. See also Boyett v. The State, 2 Texas Ct. App. 93; Harris v. The State, 6 Texas Ct. App. 97.

Admission of the confessions of defendant in evidence is also complained of, but there is nothing to indicate that they were not freely and voluntarily made, and it is not attempted to be shown that defendant was under arrest at the time. Rev. Code Cr. Proc., arts. 749, 750. Nor did the" court err in admitting the evidence disclosed in the third bill of exceptions.

The witness was asked with reference to three spots of blood which he had seen on the top rail of the fence at the place of ingress and egress to defendant’s yard, the question propounded being, “How did those bloody spots appear to have been made?” The witness testified that they appeared to have been made with a hand.

We can see no good reason for excluding the evidence, nor can we imagine how the fact that the witness was asked and stated how the matter appeared to him affects its admissibility; for in testifying to such physical facts a witness cannot well testify otherwise than as to appearances, and the impressions created upon his mind from the appearances as to the causes producing them. Another supposed error is that the verdict of the jury was received and entered during the absence of the'counsel of defendant-.

Whilst our Code of Procedure requires the presence of the defendant at the reception of the verdict in all felony cases (Rev. Code Cr. Proc., art. 711), there is no similar rule provided with regard to counsel; and the rule is, on the other hand, that it is not error to receive the verdict in the absence of defendant’s counsel, the defendant himself (as was the case in this instance) being present and suffering no prejudice. Beaumont v. The State, 1 Texas Ct. App. 533; Summers v. The State, 5. Texas Ct. App. ,365.

Several objections are urged to the charge of the court; and in our opinion, after defining murder of the first and second degree and manslaughter, it does not present the law applicable to other phases of the case as made by the evidence in as clear, terse, and pointed a manner as would enable a jury of ordinary understanding to fully grasp and comprehend it. Besides this, it submitted issues not raised, as far as we can see from this record, by the testimony adduced on the trial.

And again, upon the two main features of the defence, viz., self-defence and justifiable homicide in defence of one’s habitation, the law is more favorable to the accused than as it is found enunciated in the charge. There is no positive rule for the definition of justifiable homicide.

It must depend upon the circumstances and surroundings of each particular case, and a mere declaration or enunciation of the rules prescribed in the statute will in many instances fall short of filling the measure of the law as it has been interpreted and thoroughly established by precedents and authority of long and recognized standing.

A defendant is always justifiable in acting for his defence, or the defence of his family or property, according to the circumstances as they reasonably appear to him, and it is but just and right that his action should be judged of in the light of the circumstances as they appeared to him at the time. Such is our understanding of the law, and such the rule of decision in this State. It is not necessary that there should have been actual danger, provided the party acted on a reasonable apprehension of danger. Munden v. The State, 37 Texas, 353; Horbach v. The State, 43 Texas, 242 ; Cheek v. The State, 4 Texas Ct.

App. 444; Blake v. The State, 3 Texas Ct. App. 581; May v. The State, 6 Texas Ct. App. 191; Marnoch v. The State, decided at the present term, ante, p. 269. Defence of one’s habitation is a right only limited in-, extent by the same rules which govern in the defence of the person. If we recur to the common law, we will find that even there a party committing homicide while defending his dwelling-house against an assault, actual and positive, was held guilty of no higher grade of homicide than manslaughter. 1 Hale’s P. C. 485, 486; East’s P. C. 287, 321; Hawk. P. C. 83. In Mead’s Case, 1 Lew. C.

C. 184, Holroyd, J., said that “ a civil trespass will not excuse the firing of a pistol at a trespasser in sudden- resentment or in anger. If a person takes forcible possession of another’s close, so as to be guilty of a breach of the peace, it is more than a trespass. So if a man with force invades and enters the dwelling of another. But a man is not authorized to fire a pistol on every invasion or intrusion of his house. He ought, if he has, a reasonable opportunity, to endeavor to remove him without having recourse to the last extremity.

But the making of an attack upon a man’s dwelling, and especially in the night, the law regards as equivalent to an assault upon a man’s person; for a man’s house is his castle, and therefore in the eye of the law it is equivalent to an assault.” It seems to us that the conclusion reached by the Supreme Court of Alabama in the well-considered case of Carroll v. The State is a most clear and forcible declaration of the correct rule by which to determine how far a person is protected in the defence of his dwelling.

Goldthwaite, J., delivering the opinion, says : “ It is conceded most fully that if the evidence shows an assault upon the house or the person, under circumstances which would create a reasonable apprehension—that is, a just apprehension—in the mind of a reasonable man of the design to commit a felony with force, or to inflict a personal injury which might result in loss of life or great bodily harm, the danger of the design being carried into execution being imminent and present, the person in whose mind such an apprehension is induced, or over whose person or property such danger is impending, may lawfully act ujoon ajjpearances, and kill the assailant.

The law would not in such a case require that the danger should be real, that the peril should actually exist, but it does require that the appearances shall be such as would excite a reasonable apprehension of such peril; and if such appearances do not exist, the killing would be either murder or manslaughter.” 23 Ala. 28 ; Hor. & Thomp. on Self-Defence, 804. The same doctrine is held in Pond v. The People, 8 Mich. 150; Hor. & Thomp. on Self-Defence, 814.

The second special instruction asked for defendant in the case we are considering was the law as far as it went, and should have been given, or, in lieu thereof, a charge submitting the law as it is above laid down. . Because the charge of the court did not sufficiently present the law applicable to the case on the principal issue made by the defence, the judgment is reversed, and the cause remanded for a new trial. Reversed and remanded.