Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
Appellant's first proposition is with reference to the jurisdiction of the court; it being insisted by him that the term fixed by law for holding court in Scurry County was the 16th day of September. 1901, the same being Monday; and that the judge did not appear on said day; that he only put in an appearance on Tuesday, the 17th, and that no court was begun and holden on the 16th, under article 1071, Revised Civil Statutes, providing for the election of a special judge on the failure of the district *Page 596 judge to appear. The record shows in this respect as follows: That on September 16, 1901, there was begun and holden a regular term of the District Court of Scurry County, Texas. W.E. Ponder, district attorney; A.J. Grantham, district clerk, and L.C. Darby, sheriff were present. Hon. P.D. Sanders, judge of said court, not being present, the court was called by the sheriff and adjourned until Tuesday, the following morning, at 10 o'clock. The minutes then proceed, that on Tuesday, September 17, 1901, the court convened with the same officers present as on yesterday, with Hon. P.D. Sanders presiding. Whereupon, etc. Appellant cites us to Wilson v. State, 37 Texas Criminal Reports, 373; Campbell v. Chandler, 37 Tex. 32; People v. Sullivan, 115 New York, 185, and a number of other cases in support of his contention. In Wilson's case on the first motion for rehearing, it was held that the case was not tried at a term of court, and the judgment was reversed on that account. Subsequently, however, on the second motion for rehearing, this action of the court was reversed on the ground that the recent act of the Legislature failed to provide two terms of the district court, and that said act was void; and that the court rightly held as of the old term, and the conviction was accordingly maintained. The facts of that case on the first motion for rehearing, as recited in the judgment, are very different from those here presented. There we held that the recent act providing a new time for holding the court was legal. The court should have met under that act on June 3, 1895. There was no showing of any attempt on the part of the court to hold the term until June 24, 1895, which was under the former law; so that there was a lapse of the term under the new law between the time of beginning the court and the time when it actually began, of twenty-one days. Here there was an interval of only one day between the beginning of the term and the actual presence of the judge. The terms of court are fixed by law, and it is well settled that there can be no court without the presence of the judge. He may not alone constitute the court, but he is an essential part thereof. 8 Am. and Eng. Enc. of Law, p. 22, and authorities there cited. It has also been held that the court must begin on the day fixed by law therefor; and if the judge is absent on that day, unless there is some enabling act, the term will lapse. People v. Bradwell, 2 Cow., 445; People v. Sullivan,115 N.Y. 185; In re Terrell, 52 Kan. 29, 39 Am. St. Rep., 327. Followed in In re McClaskey, 34 Pac. Rep., 459; State v. Roberts,8 Nev. 239; People v. Sanchez, 24 Cal. 17. As stated before, the question here presented requires a construction of article 1071, Revised Civil Statutes, 1895. That article provides, that whenever on the day appointed for a term of the district court the judge thereof shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no failure of the term, and no failure to proceed with the business of the court, but the practicing lawyers of such court present thereat may proceed to elect from their number a special judge of said court, who shall proceed to hold said court, etc. Now, a proper interpretation of this statute allows the whole of the first day of the term in which the judge may put *Page 597 in an appearance and open the court. If he does not put in an appearance during the first day, then, in order to keep the term alive, the attorneys in attendance on the court may meet on the ensuing day and elect a special judge and so prevent a failure of the term; or it would follow if before they meet on the second day, the judge puts in an appearance and opens court, there is no lapse of the term. The statute evidently accords the judge the whole of the first day within which to make his appearance and open court; and the contingency does not arise during the first day when the attorneys in attendance on the court would be required to act in order to prevent a failure of the term. Of course it is not necessary to discuss whether or not if they had acted on the first day of the term such action would be illegal. It is only necessary to discuss the question whether or not there was a lapse of term under the facts as shown in the record. We hold there was not. People v. Sanchez, 24 Cal. 17. Nor do we understand anything in this decision to militate against the views expressed in Wilson v. State, supra.
Appellant made a motion to continue the case on account of the absence of Mrs. B. Taylor. Waiving the question of diligence, it does not occur to us that her testimony was material; that is, at most it was impeaching testimony, and continuances are not usually granted on said account. Appellant alleges that he expected to prove by said witness that Jesse Bullock, a witness for the State, stated to said witness at her house several weeks after W.E. Haley was killed, that none of defendant's family had stated, at his father's house on the day that said Haley was killed, that they did not see a gun or firearms of any description near the body of deceased immediately after said killing. And in that connection appellant stated he anticipated the State would prove by said Jesse Bullock that he did hear some of the members of defendant's family say that they did not see a gun or firearms of any description near the body of said Haley after he was killed. It will be noted in connection with this statement of the application that no particular witness is pointed out whom Bullock should prove he heard make the statement. It is general, and seems to apply to the whole family, to the effect that he had heard none of them make such remark. However, conceding that a predicate for impeachment is sufficiently laid, as stated before, the testimony is merely of an impeaching character, and we see nothing in this case to take it out of the ordinary rule.
Appellant excepted to the charge of the court on express malice or rather to that portion of the charge in which the court used the following language: "Or do the facts and circumstances in the case show such a reckless disregard of human life as necessarily includes the formed design to take the life of the person slain." He insists that there is no testimony showing on the part of appellant an utter disregard of human life, which would indicate express malice, and that consequently the court should not have charged thereon. This language occurs in the court's definition and illustration of what it took to constitute express malice, *Page 598 and among other things, speaking generally he used the language suggested. Accurately speaking, there is no testimony showing a reckless disregard of human life, such as is illustrated by one firing into a crowd. But it occurs to us, if appellant's theory as to the homicide is not correct, and the State's was correct, appellant in killing did manifest a reckless disregard of the life of the person slain; rather his malice was more acute than this. But here the malice was directed against the particular person, and manifested an utter disregard for his life. Besides this, the jury acquitted him of murder in the first degree; and even if it be conceded that this charge, in defining express malice, was not correct, yet we fail to see how it harmed appellant. Appellant also complains of the following language of the court's charge on implied malice, to wit: "If the instrument be one not likely to produce death, it is not to be presumed that death was designed." He objects to this, because, he says, it is a charge on the weight of testimony. If it is, it occurs to us that it is favorable to appellant. However, there could be no controversy as to appellant's intent to slay deceased. He used a six-shooter, a deadly weapon, and used it with deadly effect. His intent and purpose was not an issue in the case, except that he claimed what he did was in self-defense. But the charge is not an infringement of his rights in this respect. Appellant further insists that the court erred in failing to instruct the jury in regard to appellant's right to defend his property in connection with the court's charge on manslaughter. We do not concur with the view that the homicide involved the protection of appellant's property, under articles 677 and 680. True, the parties were having an altercation, which had been pending for some time in regard to their lands and fences, and the difficulty appears to have grown out of this. On the morning of the homicide it appears deceased and his companion were engaged in driving appellant's stock off the land in controversy between them, preparatory to putting up a fence which deceased had previously erected and which had been torn down by appellant on the preceding night. As deceased drove the stock across the fence, appellant approached with a gun, an altercation ensued, and appellant shot deceased. Now all this testimony, involving the cause of the difficulty between the parties, was before the jury, and the court gave a very full and clear charge on manslaughter. While he told the jury, that the provocation must arise at the time of the commission of the offense, that the jury could also look to all the facts and circumstances antedating that event, and if they found that adequate cause existed, and appellant's passion was thereby engendered, and he slew deceased, not in self-defense, that they could not convict him of a greater crime than manslaughter. The jury certainly understood this charge to embrace all that transpired between the parties, especially the driving out of appellant's stock by deceased and all that there transpired. We do not think it was incumbent on the court to do more than was done by the charge on the subject. We do not understand it to be the rule that, outside of the statutory causes, it is incumbent on the court to embrace or recount the facts which may *Page 599 suggest adequate cause, but, under the general charge, these matters which may constitute adequate cause are left to be determined by the jury. Complaint is made to the action of the judge in regard to the introduction of certain impeaching testimony against Meadow, one of appellant's witnesses. The imputation suggested is that the judge, in the presence of the jury, pointed out to counsel the impeaching testimony. In the bill as approved by the judge there is nothing reprehensible; on the contrary, his conduct was entirely proper. The habeas corpus testimony was handed him, and he merely looked at it and handed it back to counsel without any remark calculated in anywise to indicate any impropriety.
In the motion for new trial appellant raises the question as to the misconduct of the jury. He insists that the jury discussed some of the testimony before the evidence was finally concluded and the case submitted to them by the court. And in this connection some of the jurors were examined, and it appears that mention was made by some of the jury with reference to some of the testimony. While it would always be best for a jury to wait until they had heard all the testimony, and then receive the charge of the court before they begin to discuss the evidence, and the application of the law thereto, still we know of no rule which would authorize a reversal of a case simply because the jury may have discussed or remarked about the testimony of some witnesses before the final conclusion of the evidence. Counsel has referred us to no case in support of his contention, and we do not believe there is any. Nor do we believe it competent for jurors to make affidavits as to their discussion of the testimony in the case, or as to the opinions entertained by them in regard to the testimony of witnesses. Hodges v. State, 6 Texas Crim. App., 615; Thomas v. Zushlag, 25 Texas Supp., 229; Weatherford v. State, 31 Tex.Crim. Rep.; Pilot v. State, 38 Tex. Crim. 515. We do not regard the motion for new trial as setting up such a case of misconduct on the part of the jury as affords a ground for reversal.
We have examined the record carefully, and in our opinion the evidence fully justified the jury in rendering their verdict. There being no error in the record, the judgment is affirmed.
Affirmed.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.] *Page 600