Full opinion text
HARPER, J. Appellant was prosecuted for murder and convicted of murder in tbe second degree and bis punishment assessed at 40 years’ confinement in tbe state penitentiary. There are a number of grounds in tbe motion for new trial we cannot' «Insider, as no bills of exceptions were reserved, and tbe matters are not presented in a way we would be authorized to review them, such as the action of tbe court in overruling tbe application for a change of venue, overruling the application for a continuance, etc. In the absence of bills of exceptions, these matters are not reviewable by this court. There are three bills of exception in tbe record, all of them relating to the action of the court in overruling appellant’s challenge for cause as to certain jurors, Messrs. Thompson, Owens, and Hardaway. Tbe bills show that Mr. Hardaway served on tbe jury, and as to this juror the bill shows: “J. A. Hardaway, on being examined as to bis qualification to sit as a juror, testified substantially as follows: T have no conscientious scruples against tbe infliction of death as a punishment for crime. I read an account of this killing. I don’t believe I have talked to anybody who claimed to know the facts of tbe case. Q. Have you formed an opinion as to tbe guilt or innocence of the defendant? A. From what I read I did. If taken as a juror I could set that opinion aside and try him on tbe evidence as introduced from tbe witness stand and certainly would do that. I would try him on tbe evidence introduced from tbe witness stand and under tbe charge as given me by tbe court. I don’t think that opinion would likely influence me in any way.’ Cross-examined tbe witness testified further as follows : ‘I was in Sherman’ at the time of tbe homicide. I did not see tbe body of tbe deceased. I don’t remember that I ever talked to my clerks in tbe store about it. I have talked to other parties about it. I don’t believe any one ever expressed their opinion in my presence as to tbe guilt or innocence of tbe defendant. I don’t know that Y ever expressed my opinion. I am not sure I have not, I don’t know whether I liave or not. Prom what I read of it of course I have an opinion. Q. Is that opinion adverse to defendant? A. Sure, yes. Q. Now it would take evidence to remove that opinion, wouldn’t it? A. Tes, from what I read of it; I don’t know anything else. I have heard it talked quite frequently. If I went into the jury box I would still have that opinion, and it would take evidence to remove that opinion. If there was no evidence introduced, that opinion would influence me. Q. In other words, you would be governed by the opinion you have unless evidence was introduced to remove it? A. Well, owing to the evidence, yes, the evidence might be altogether different from what I have heard. Tou understand I don’t know about that. Q. The proposition is this: Unless evidence was introduced to remove that opinion, that opinion would naturally influence you, wouldn’t it? A. Well, of course, yes, I would be governed by my opinion I have in regard to the matter.’ Challenged for cause. Examined again by state’s counsel, the juror testified further as follows: ‘Q. Tou stated to me you. would not consider that opinion that you have, as a juror, as a man, and what you read is on your mind; you have that opinion? A. Certainly. Q. As a juror serving in the case would you consider that opinion and allow that opinion to influence you after you had been sworn as a juror and the evidence was offered from the witness stand? A. I would be governed, of course, by the evidence, not by my opinion. I wouldn’t have that opinion at all; that is a matter I would discard and would not consider it as evidence in this case at all. It would not have any influence, according to the evidence. If you just read the indictment and offered no evidence at all, I would not convict the defendant. I would have to acquit him if I had no evidence. Q. Then that opinion you have would have no influence on you at all; you wouldn’t require any evidence to remove it and wouldn’t require any to add to it; you wouldn’t consider it as a juror? A. No. The Court: Tou just formed that opinion, did you, from reading about it in the papers? A. Tes. I think I read it in the Dallas News or the paper here, the Sherman Democrat. It did not contain what purported to be the evidence, just the circumstances, as well as I recollect. I did not read any evidence in it. I do not think my opinion is so definite and fixed as to influence me at all in making up my verdict.’ ” Subdivision 13 of article 692, Code Cr. Proc. 1911, reads as follows: “That from hearsay or otherwise there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence him in his action in finding a verdict. Eor the purpose of ascertaining whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusions so established will influence his verdict. If he answers in the aflirmative, he shall be discharged; if he answers in the negative, he shall be further examined by the court, or under his direction, as to how his conclusion was formed, and the extent to which it will affect his action ; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and, if the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case; but, if the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.” In subdivisions 3 and 4 of section 747 of White’s Ann. C. C. P. will be found a long list of cases construing this provision of the Code. The other two bills are in substance the same as the bill above quoted, except it is not shown they served on the jury, and under all the decisions of this court the trial court did not err in overruling the challenged for cause; he evidently holding that they were impartial and could and would render a verdict in accordance with the law and the evidence, their opinions being but vague impressions formed from reading newspaper reports of the occurrence. The statement of defendant, which was introduced in evidence, reads as follows: “My name is Henry Myers. Mr. Albert Brittain was at the camp January 4th before dinner and he and I had some trouble. He discharged me and told me to leave the camp. This was before dinner. After that I came to Sherman and was here in town awhile and left here about 4:30 o’clock and went back to the other camp where I was this morning. Mr. Brittain came to this camp this morning about 8 o’clock and I was going to Dike’s tent. I went in and Mr. Brittain came into the tent and said tó me, ‘Didn’t I tell you to leave this camp?’ I said, ‘Tes, sir;’ and I told him I was not going until I got my money. He said, ‘Tou are going right now;’ and said, ‘Go on out of this tent.’ I went out of the tent. He came out behind me. He said, ‘Get on up the road;’ and then he hit me twice and kicked me. Jim Carr, Monia Collins, and Joe Williams and Dike and a negro called Chuck, Jackson Booker, and I. C., a tall slim negro, were there and saw this. After this 1 went back to the tent where I was staying. This was Napolian Eisher’s tent. I went in and sat down on a box. I then got up and got the gun from under the bed. I sat on the box about five minutes. After I got the gun I came out of the tent and I saw Mr. Brittain coming toward me. I stepped about ten feet toward — • He got within about 60 yards of me and stopped and talked to Napolian Fisher, and I heard him tell Napolian he had better make me leave the camp; if he didn’t he was going to kill me. He then stepped toward me and looked me in the face. I then raised the gun and pointed it toward him. He said, ‘Henry, don’t.’ After he said this I shot him once. He fell to the ground. I put the gun back in the tent. I got my coat and went out into the road and walked and ran over to the other camp, which is south about 4 miles of this camp where the trouble was. I was in Si’s tent when I was arrested. I did not tell anybody about the shooting. I saw some white boys going toward town walking. After Mr. Brittain and I had our trouble when he hit me there at Dike’s tent he went over across the. creek about 100 yards and then he came back toward the tent where I was. I was watching him all the time and kept my eye on him until I shot him. The same parties were present when I shot him that were there when he hit me. It was not over 20 minutes after he' hit me until I shot him. I was still mad at him for hitting me, and I wouldn’t have shot him if he had not hit me. I am 22 years old.” This presents the matter in as favorable light to defendant as does any of the testimony adduced on the trial. The court submitted murder in the first and second degrees in language not complained of in the motion for new trial. He also submitted manslaughter, defining the offense in the usual language, and instructed the jury: “You are instructed that, if deceased, with a pistol, did, about the time or just prior to the killing (if defendant killed him), strike defendant in the face or elsewhere, or made any other assault or battery on defendant producing pain or bloodshed, or if, in a serious personal conflict, great injury was inflicted upon defendant by deceased by means of a weapon or other instrument of violence, then, and in either event, this would be adequate cause.” We think this charge peculiarly applicable to the facts in this case as made by the testimony offered by appellant. In instructing the jury that if deceased, with a pistol, did, about the time or just prior to the killing, strike defendant on the face or elsewhere, or make an assault on defendant, causing pain or bloodshed, this would be adequate cause, and in not instructing them on cooling time, was more favorable to defendant than he had a right to expect, and, if error, it was error of which he would' not be heard to complain. According to defendant’s testimony it was 20 minutes after he was assaulted by deceased before he shot him. And he further shows that during all that time he kept his eyes on deceased and shot him as soon as he came near enough to him to shoot, without a word being spoken. If a charge on cooling time had been given under the evidence in this case, the jury would certainly have found that sufficient time , had expired for his mind to cool, and in submitting manslaughter as he did, without charging on the issue of cooling time, the charge as given was more favorable to defendant than he had a right to expect or demand. The judgment is affirmed.