Nalley v. State , 28 Tex. Ct. App. 387 ( 1890 )

White, Presiding Judge.

There were two trials of this case in the lower court, the first having resulted in a mistrial. On the first trial three of the special veniremen, to-wit, Grand, Miller, and Fields, were peremptorily challenged by the defendant after they had been accepted by the State. On the second trial these same three parties were again summoned on the special venire, and were again accepted as jurymen by the State. Defendant objected to being required to pass upon them as' jurymen, for the reason that they had been summoned on the former jury, and he had then peremptorily challenged them. His objection was overruled, and he again challenged them peremptorily, saving his bill of exceptions to the ruling of the court. He did not exhaust his peremptory challenges, and therefore his bill of exceptions, if well taken, would be entitled to no consideration, no objectionable or incompetent juror having been forced upon him. Willson’s Crim. Stats., sec. 2293; Hudson v. The State, ante, p. 323.

But the jurors were not incompetent and subject to challenge for cause for the reasons stated. They did not sit upon the former trial. Had they served on the petit jury in a former trial of the case, then the challenge for cause would have been a good one under the eighth subdivision of article 636 of the Code of Procedure. As presented there is no merit' in the bill of exceptions.

Several objections are most strenuously insisted upon, based upon bills of exceptions reserved to the charge of the court upon self-defense and' reasonable appearances of danger. Some of the isolated excerpts commented upon, if standing alone and considered by themselves, might be obnoxious to the criticisms made upon them, but when considered as a whole we do not believe the charge is either illegal or objectionable. It fully embodies the law of justifiable homicide and self-defense as enun-. ciated in our Penal Code; and as to reasonable appearances of danger the-jury were expressly instructed that “it is the right of the defendant to-have the facts considered by the jury as they reasonably appeared to him at the time they transpired, and if as the facts reasonably appeared to the defendant, he would be justified under the law as given in (this) charge, he should be acquitted. It would make no difference that the facts were mistaken by the defendant, and that he was in no real danger if it be so.” Willson’s Crim. Stats., sec. 1070.

As we understand it this is the law aptly and concisely expressed, and in such plain and intelligible manner as that no jury of ordinary intelligence could have failed to comprehend their duty under it.

Exception was taken to the charge because it submitted murder of the second degreb. We are of the opinion the court properly submitted this issue, and had it failed to do so, the defendant might have been here strenuously urging the omission as fatal error. As was said by this court in Blocker’s case, 27 Texas Court of Appeals, 16, “trial judges should be exceedingly cautious in murder trials in declining to charge upon murder in the second degree. Instances are comparatively rare in which such a charge may be properly dispensed with. It is'only when there is no evidence tending to present that issue that such a charge may be safely omitted.”

Defendant objected to the State being permitted to have the witness Williams to testify to independent matters after the evidence for the State and defendant had closed. The objection was that no evidence, unless in rebuttal, could be heard after the defendant had closed his testimony. This objection is untenable. “When essential to the due administration of justice, it is Avithin the discretion of the trial judge to receive evidence at any stage of the trial before the conclusion of argument, and the exercise of such discretion Avill not be revised on appeal unless it plainly appears to have been abused.” Willson’s Crim. Stats., sec. 2312; Code Crim. Proc., art. 661.

But Avith regard to this witness’s (Williams’s) testimony, and in connection Avith its introduction, it is made to appear by bill of exceptions that when first called to the stand the prosecution asked the witness if he, witness, had not had a conversation a few days before this trial with Sam Halley, who was a brother of defendant, to which question defendant objected, Avhen the district attorney immediately, and before defendant could interpose objection, stated to the court in the presence and hearing of the jury, “that he expected to sIioav by the said witness Williams that the said Sam Halley had induced him, said Williams, to leave the county so as not to testify.”

The court signs this bill of exceptions without qualification or explanation, nor are the jury instructed by the court to disregard the statement of the district attorney. There was no statement by the district attorney to the effect, and no pretence that he sought to inculpate the defendant in any manner directly with this attempt to suppress the testimony. Even if the prosecuting officer could have proved what he stated, such testimony would have been clearly inadmissible against defendant unless he had been directly connected with the matter. Favors v. The State, 20 Texas Ct. App., 158; Marshall v. The State, 5 Texas Ct. App., 273. There being no proof that these overtures to the witness were made by the authority or with the knowledge of the accused, such statement by the district attorney was illegal and unjust, and was highly calculated to prejudice the accused. Barbee v. The State, 23 Texas Ct. App., 199. Anything Sam Halley, the brother, might have done in the matter, in the absence and without the knowledge of defendant, was most clearly inadmissible against and could not be binding upon him (Maines v. The State, 25 Texas Ct. App., 568), and afforded no reasonable presumption or inference pertinent to the issue in the case for which defendant was on trial, and the court should have so instructed the jury. Taylor v. The State, 27 Texas Ct. App., 464. “Ho improper means should be resorted to to prejudice the minds of the jury against the defendant in the remotest degree. Ho testimony should be offered on the part of the prosecution that is not relevant and legal. Ho remarks should be made by counsel for the State which are not fully warranted by the evidence.” Gazley v. The State, 17 Texas Ct. App., 267. That the course of the district attorney in this matter was calculated to prejudice the rights of defendant is, we think, manifest. How far he has been prejudiced, in the absence of any attempt upon the part of the court to obviate and avert the prejudice, it is impossible to tell. The law demands a fair, impartial, and legal trial. For this apparent wrong done the defendant in the trial below, the judgment is reversed and cause remanded.

Reversed and remanded.

Hurt, J., absent.