McGregor v. State (160 S.W. 711, 1913)

PRENDERGAST, P. J.

Appellant was indicted for murder of • Tom Priour by the j grand jury of Nueces county alleged to have been committed in that county. Afterwards the venue was changed from that to San Patricio county, where appellant was tried, convicted, of murder in the second degree, and his punishment fixed at five years’ confinement in the penitentiary.

For the first time appellant, in his amended motion for new trial, urges that the case should be reversed because the record does not disclose that appellant was arraigned in Nueces county before the change of venue. The statute, in effect, requires that the plea of not guilty shall be entered before a change of venue (article 630, C. C. P.); but this article has uniformly been construed to be directory only. Besides this, article 938, C. P. P., expressly provides that this court shall presume in all cases that the defendant was arraigned, unless such matter was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below. No such bill was taken, nor question raised in the court below, other than by such amended motion for new trial. The court did not err in refusing a new trial on that ground. The record in this case distinctly shows that the appellant was properly arraigned and pleaded not guilty before his trial in San Patricio county. This is all that was necessary.

Appellant has a bill to certain remarks of the district attorney in argument before the jury. In each instance the court expressly told the jury not to consider such remarks. It may be that some expressions of the district attorney complained of were improper. It is unnecessary to pass upon this question. Prosecuting officers certainly should stay within the record in their arguments before the jury. For a flagrant violation of such duty this court has been compelled- in some instances to reverse cases. Doubtless, on another trial the prosecuting officer will so argue the case as not to present any such question again.

The court in this case gave a charge on manslaughter. In one paragraph he told the jury: “The following are deemed adequate causes: An assault and battery with intent to injure or inflict bodily pain, or grossly insulting language." This charge is not the law. Article 1131, P. C., expressly states that insulting words is not adequate cause, and article 1132 expressly states that an assault and battery by the deceased, causing pain or bloodshed, is an adequate cause. But as the charge given, above quoted, was more favorable to appellant than the law authorized, he cannot complain thereof. In another trial of this case, the court should not give the charge above quoted; but, if manslaughter is raised, should charge in accordance with the statiite.

Appellant complains that the court should have given his special instruction No. 1. This instruction is nowhere copied in the record, nor iri the bill of exceptions complaining of the refusal of it. From the bill on the subject, however, we take it that it was on the subject of insulting words of the deceased towards appellant’s wife and her lady companion whom appellant was accompanying at the time. Some insulting words may. have been used by deceased concerning them, or in their presence. Whether or not such words were used by the deceased is a disputed question. .Even if the evidence was sufficient to establish that they were used by deceased, adequate cause from that source clearly passed out of the case, and no charge should have been given submitting that question to the jury; for the evidence as a whole, and the testimony of appellant himself, exclude expressly that the difficulty out of which the killing occurred was caused by such language even if used by deceased.

By another bill appellant complains that his requested charge No. 2 should have been given, on the subject of self-defense. It is nowhere copied in the record or bill, and we have no way of knowing what it was, and for that reason cannot pass upon that charge. The court gave a charge on self-defense as favorable as the evidence or law justified.

However, after completing the charge on self-defense, the court immediately followed it in a separate paragraph with this charge: “The jury are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant either by words or acts produced the condition and brought on the difficulty, in and by which it became necessary to take the life of Tom Priour, then and in that case he cannot justify himself on the ground of self-defense.” Complaint is made on various grounds to this quoted charge. The evidence does not make it clear that any charge at all on the subject of provoking the difficulty by appellant should have been given. However, we do not pass upon the sufficiency of the evidence on that point. Clearly self-defense was raised. The statute (article 1138, P. C.) is: “Though a homicide may take place under circumstances showing no deliberation, yet, if the person guilty thereof provoked a contest with the apparent intention of killing, or doing serious bodily' injury to the deceased, the offense does not come within the definition of manslaughter,” but may be murder. In the case of McCandless v. State, 42 Tex. Cr. R. 61 et seq., 57 S. W. 672, a full discussion of this character of charge and 'the occasion on the trial of the ease when it should or should not be given is found and the substance of a proper charge when necessary is given. See, also, White’s Ann. P. C. §§ 1211, 1212, and 1181, for other eases and a further discussion by Judge White on this subject. The charge above complained of is clearly defective in that it does not require that the words or act of the appellant provoking the difficulty were “with the apparent intention of killing or doing serious bodily injury to the deceased.” In this ease the charge is fatally defective, at least on this point. The converse of the proposition should also have been given if the evidence justified the giving of such a charge at all. White’s Ann. P. C. § 1212. For the error in giving this charge, as given, without the proper and necessary elements therein, this ease must be reversed.

The state introduced the dying declaration of the deceased. The appellant complains that the court refused to give his charge of what consideration the jury should give this dying declaration. The charge is not in the record, nor does the bill disclose enough for us to specifically pass upon this refused charge. We see nothing in the confession or record that would call for a charge on this subject at all. It occurs to us that a charge thereon would be on the weight of the evidence and singling out some particular evidence which should not be done against the appellant, nor against the state.

Nothing else that appellant assigns shows any reversible error or needs any discussion. The ground of newly discovered evidence cannot, of course, arise on another trial.

The judgment is reversed and the cause remanded.