Appellant was assessed a life term imprisonment in the penitentiary under conviction of murder in the first degree.
Bill of exceptions number 1 complains of the action of the court refusing to postpone the selection of the jury until certain named jurors could be attached and brought into court. The court says in explanation: "The court heard the evidence of the sheriff as to where the said jurors resided, and ascertained they lived from eight to twenty miles from the courthouse. Instanter attachments for said jurors were issued, and the motion overruled. Before defendant was required to pass on any talesmen all of said jurors, with the exception of one or two were brought into court, and after the jury were finally empaneled defendant had not exhausted his challenges." There was no error in this. It has been frequently decided.
Another bill complains that the juror, McSwain had been tested as to his qualification, and accepted by the State, and before the defendant passed upon him he called attention to the fact, that they had not inquired of him as to whether or not he had conscientious scruples in regard to inflicting the death penalty. Upon inquiry the juror stated he had, and the State then challenged him for cause. This was not error. He could not be considered a juror in the case until he had been accepted by both parties and sworn. Nor is there any merit in the contention that because the State *Page 353 had accepted the juror McGhee, who had replied he had conscientious scruples, that therefore the State waived that question as to McSwain. This did not take away from the State the right to challenge McSwain for that reason.
The theory of the State was that deceased and defendant were rivals for the attention and carnal favors of the negro woman, Ida McGrew; and that appellant shot deceased, Spell, on account of jealousy growing out of this relation. In this connection, the State asked this witness — Ida McGrew — the question: "If the defendant ever tried to induce her to leave the house in which she was then living, and for which deceased was paying rent, and if he made any threats against her in the event she failed to do so?" Exception was reserved, because of its irrelevancy; and because it would serve to inflame the minds of the jury and prejudice them against him. This being overruled, witness answered, that defendant did try to get her to leave said house, stating if she did not leave it, he would burn up everything she had. This was not error. The evidence shows that appellant and deceased had been keeping the woman Ida McGrew. She seems to have been alternating between them to some extent, and the deceased had finally obtained the better of the race in the rivalry. This seemed to have very greatly enraged appellant. Deceased, by the answer of the witness, is shown to have been paying the rent on the house in which she was living. This was a circumstance that was admissible, bearing upon the question of the feelings of appellant towards the deceased, and tended to show the motive for the homicide.
Omitting the dying declaration of deceased, this was a case of circumstantial evidence. Several letters written by appellant to the negro woman were introduced in evidence. Various objections were urged to this testimony. We think the letters were admissible, for the same reason that the testimony just mentioned was. They were of a love-sick nature, and showed intimate relations had existed between appellant and the woman, and also referred to deceased, in two or three of them, in terms more or less threatening. For instance, the first introduced is dated,
"Bryan, Texas, September 26, 1904.
Ida:
Henry Spell, the cowardly puppy, have got them notes I wrote you, taking them around showing them. A man that is that low down is sorrier than the worst negro in town. Now you give the pup this note. I want him to see it. He can't face a white man; he is so sorry. Mc."
Another letter, dated June 29, had this reference to deceased: "I want to talk with you, and I want you to let me out or Henry Spell *Page 354 one, for I want to see you every night myself, and I don't want to come without you telling me. You need not be afraid of him. He knows better than to harm you." In another letter he says: "Ida: Now, if you will turn that fool loose, I will give you more than he makes. He ain't worth a damn, and I will fix you up. I said a heap to you, but it was because I loved you so hard." It is not necessary to repeat the contents of the letters, and the above letter and extracts are copied simply to show that deceased was connected in the mind of appellant with the woman, and of the enmity engendered by reason of the relations existing between the parties. These were clearly admissible to show the state of appellant's mind towards the deceased, and as bearing upon the motive that he may have had to perpetrate the homicide.
Cam Jones, testified for appellant, and was asked: "If deceased, Henry Spell, had ever sent any message by him to Zack Franklin, in regard to the woman, Ida McGrew?" The evidence had shown that deceased was killed while at the house of Ida McGrew, and that the woman was the paramour of both deceased and defendant. The State's theory is that the defendant and deceased were rivals for her affections and carnal favors. The bill shows that the State objected to the question asked of the witness, because it was immaterial and irrelevant. Objection being sustained, it is stated the witness would have answered, had he been permitted, that deceased had told him to tell said Franklin that if he, Franklin, did not cease his visits to Ida McGrew, he (Spell) would kill him, and that this was shortly prior to the homicide. The purpose stated was to show that other parties than appellant were in the habit of visiting at the house of Ida McGrew, and that other parties than appellant had a motive for killing deceased. Sometimes this character of evidence becomes material and admissible. Such has been the rule since Dubose v. State, 10 Texas Cr. App., 230. The rule in regard to this may be thus stated, that investigations with reference to other parties than the accused could not be permitted, unless the inculpatory facts are such as proximately connect the party not on trial with the transaction. In other words, if a party other than the accused had the motive and opportunity, and was placed in such proximity to the homicide as to show he may have been the guilty party, the evidence may have been admissible. But remote acts and threats would not be, unless other facts in closer proximity and pertinently connecting the third party with the homicide at the time of the commission of the offense was shown. The mere fact that deceased may have had animus is not sufficient. The mere fact that deceased had threatened to kill other parties is not sufficient to admit it, unless there are other facts to show that the third party may have been placed in such position that he may have committed the homicide. The bill does not bring it within the rule.
The dying declarations of deceased were admitted. It is contended *Page 355 that the predicate is not sufficient. Cole Spell (brother of deceased) directly after the shooting went to where his brother was; had a short talk with him, went down in town and undertook to arrest defendant, who refused to be arrested by him, because he had no warrant. He returned to the bedside of his brother, and had a conversation with him. Before this conversation, deceased asked that all the parties be sent out of the room. This was done. Deceased said to his brother, "I know I am not going to get well, and I want to tell you who did it." He was perfectly rational at the time. The witness Mitchell (justice of the peace) says he arrived at the place where deceased was after being shot; that he went into the room, and deceased recognized him. He was suffering from a gunshot wound in the back, which came out in front, near the nipple. He says he did not hear the doctors explain or tell deceased of the seriousness of the wound. His testimony shows that deceased was of sound mind. He would talk a little, and then would stop. This witness said he thought from the first that the wound was fatal. "I asked the doctors if there was any chance for recovery, and the doctor said there was little. I then said, I thought it was my duty to take a dying statement. I then asked Tom Spell (a brother of deceased) to ask deceased if he would make a statement. He came and informed me that his brother (Henry Spell) would make a statement to me. I then went into the room where he was lying on the bed. I then asked deceased if he realized he was in a dying condition, and he replied, `I do.' I then said, `In all probability would not recover,' and he said, `I do.' I then asked him, if he knew who shot him. This was about nine o'clock.
Nagle, county attorney, reached deceased after Mitchell took the statement. "I did not know what formality Mitchell had gone through in taking the dying declaration. I went in the room where deceased was lying, and asked `How are you?' And the doctor asked him if he knew me, and he said: it is Mr. Nagle. I said, `Henry, do you think you are going to die?' And he said, `I have not given up all hope,' and said, `I don't see why I should not recover.' I had spoken to him several times as to his condition, so as to lay the predicate for his dying declaration, and each time he did not indicate he had given up hope. The last statement of Dr. Emory was, `Henry you are in a mighty bad condition, and you may perhaps die.' At that time he said, `I know it.' I was never satisfied with his condition. It was about 9 o'clock when I started to the Moseley place, where Spell was. It must have been 9:30, when he made his first statement to me." Dr. Emory testified: "Up to the time Mitchell took the dying statement or declaration of deceased, I had not indicated to him that he was seriously wounded and would probably die. At the time C.M. Spell (brother of deceased) took a statement or declaration from the deceased, I had not indicated to him that he was seriously hurt. At the time that Mr. Nagle *Page 356 talked to deceased, I had told him of the serious nature of his wound, and that in all probability he would not get well." This is the testimony pro and con in regard to the predicate. Thereupon Cole Spell (brother of deceased) was permitted to testify, that deceased said to him, that he and Ida McGrew were out in the alley, and were facing the Moseley place, when he heard a noise at the gate, looked over his shoulder, and a pistol fired, and he recognized defendant." Under the State's evidence from Mitchell and Spell (brother of deceased) there was a sufficient predicate laid for the introduction of the dying statement. The attack made on the predicate, through the witness Nagle, would have perhaps excluded it, had that been the only testimony in regard to the predicate. The court submitted this question to the jury, under appropriate instructions. We believe there was no error in this matter. The jury had the right to pass on the question, and the instructions were appropriate. Sims v. State, 36 Tex.Crim. Rep.; Martinez v. State, 56 S.W. Rep., 58; Highsmith v. State, 41 Tex.Crim. Rep.. If the testimony of Spell (brother of deceased) and Mitchell was believed by the jury, then a proper predicate was laid.
Appellant offered to prove by another witness, the following: "I asked deceased how he knew who shot him? He stated repeatedly that he recognized him by the flash of the pistol." A bill is reserved to the rejection of this testimony, and it shows that deceased and Ida McGrew had just left her little house in the yard near the Moseley residence, and she had squatted down by deceased, who was standing up, and who had leaned towards her, and just at this juncture the pistol fired immediately behind deceased. The woman testified that the night was dark, and she did not see or recognize the person who fired the shot. The bill further recites that the dying declaration of deceased was then admitted, to the effect, that as the pistol fired he looked over his shoulder, and saw and recognized defendant as the person who fired it, and that defendant was standing at or near the gate opening from Mrs. Kestler's into the alley. Defendant then proved by witnesses Buchanan and Barron, that they had `recently made experiments in discharging pistols on a dark night, under conditions similar to those testified to by the State's witnesses as shown above, and that it was impossible to recognize the person firing by the flash of the pistol.' The State then proved by Moseley and his wife, that they were at home on the night of the homicide; heard the pistol shot; that there was a lighted lamp at the time on their table. That a few nights ago they had assisted at an experiment reproducing the situation, by placing a lighted lamp on their table, in the position of the lamp on the night of the homicide, and said light cast a beam to the gate from Mrs. Moseley's into the alley, and that they recognized a person standing at the gate." This was the gate where defendant is supposed to have stood when he fired the fatal shot. Defendant then offered Dr. Emory, who stated *Page 357 that he was called to see deceased about 7 o'clock on the night of December 7, 1904, dressed his wound, and talked with him about the shooting, a short time after he had made a statement to his brother, Cole Spell. Defendant then offered the testimony, which was rejected on exception by the State. The bill is signed with this qualification: "That this evidence was offered by defendant. Defendant's attorneys stated that they would object to the State's attorneys cross-examining witness on any other part of deceased's dying declaration." Where dying declarations are admissible in evidence other statements of deceased contradictory of the dying statements are usually admissible; that is, if they tend to impeach or contradict or depreciate the value of the dying declaration. Felder v. State, 23 Texas Crim. App., 477; Orange v. State, 47 Tex.Crim. Rep.; 11 Texas Ct. Rep., 512. It will be noted in this connection, that the deceased did not make any statement as to how or by what sort of a light he recognized appellant. He simply stated that he looked over his shoulder and recognized him. We do not believe this testimony was admissible for the purpose of impeaching the dying declaration. The evidence shows that the light was shining from the window of Moseley's residence on the gate where appellant is supposed to have stood when he fired the shot. If deceased had stated that he recognized him by the light from the window, this testimony perhaps would have been admissible; but, as he did not, the excluded testimony served in no manner to impeach. It may be stated further that the testimony shows that deceased stated in that connection that he was almost close enough to have touched him with his hand at the time the pistol fired.
Witness Nalle having testified that he saw defendant on the night of the homicide, and near the time it occurred, was asked whether or not defendant appeared to be laboring under excitement or whether his manner and conduct was natural. The answer was that he appeared to be perfectly natural, that he noticed no evidence in his conduct of any excitement whatever. On cross-examination, the State having repeated said statements of the witness, propounded to him the following question: "Now is it not a fact that the defendant is an old poker player and not easily excited?" Exception was interposed by appellant and it was sustained. Appellant reserved a bill of exceptions to the asking of the question. There was no testimony before the jury on the question. There is no merit in this bill.
Another bill of exceptions is reserved to the action of the court refusing to set aside the verdict, because a juror, W.P. Burkhalter, was not a fair and impartial juror, and filed in support of that, the affidavits of T.H. and George Royder, who depose and state that on or about the 12th of March, 1905, the juror mentioned, George Royder and J.P. Royder, were talking and discussing the killing of Henry Spell, and the juror stated that any man who would write such letters as William McCorquodale did, to a negro woman, ought *Page 358 to have his damn neck broken or be hung. This was before the juror was taken. Counsel for appellant state, that neither they nor either of them had any reason to suppose that the juror was not a fair and impartial juror; that neither they nor either of them knew or had reason to suspect he was prejudiced against appellant, or that he had expressed the opinion set out in the affidavit of the Royders; and that the juror qualified on his voir dire, and that they did not know or learn of the conduct of the juror until after the trial of the case, nor of his prejudice against appellant, and that at the time he took the juror, appellant's challenges had not been exhausted, and if they had known the facts, they would have challenged him.
Burkhalter filed an affidavit to the effect, that he had no recollection of using any such language, either in form or import; but he could not say that he did not use the language, but if he did, it was an idle and unmeaning remark, and not seriously made; that he had not seen any of the letters referred to, and had not read or heard what they contained, and knew nothing of the facts in the case. That he had talked to none of the witnesses and had formed no opinion prior to the trial as to the guilt or innocence of the appellant, and was in no way biased or prejudiced, etc. All of the jurors file affidavits in regard to the matter, and they show that Burkhalter was the only juror who was favorable to appellant in their retirement, and that he held out in his favor for sometime, until after a full discussion of the evidence when he finally consented and agreed to the verdict rendered. Burkhalter himself testified that he was favorable to appellant and hung the jury on the question as to whether the dying declaration should be considered; that with that in the case, that appellant ought to be convicted, but he had doubt in his mind as to whether it should be considered by the jury. In this he is sustained by all of the jury. It is further in evidence by the sheriff, district clerk and another witness, that this juror was absent, and had not been served, but appellant's counsel insisted that he should be brought into court, and attachment was issued for him and he was brought into court and accepted as a juror. None of these parties show that while the juror was being examined, was he interrogated as to whether or not he had formed any conclusion as to the guilt or innocence of the defendant, or that he had any bias in favor of or against him. The statement is simply, that the parties were not aware that he had so expressed himself. It is well settled by a long line of decisions in this State, that where a juror is accepted in this manner, it is too late after the trial to investigate this cause of challenge. If the bill of exceptions or the facts developed on the motion for new trial had shown that they had investigated this matter and he had misled counsel or the appellant in regard to it, we would have a different question presented. It is further shown by his affidavit that if he had expressed himself so at all, which he did not recollect, it was a careless and meaningless remark. In this *Page 359 condition of the record, we do not believe the court erred in overruling the motion for new trial.
It is contended that the charge on murder in the second degree is wrong. That portion of it is as follows: "If you believe from the evidence beyond a reasonable doubt that defendant upon his malice aforethought, with a deadly weapon or instrument reasonably calculated to and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without adequate cause, and not in defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with intent to kill, did shoot with a gun, and thereby kill Henry Spell, as charged in the indictment, you will find him guilty of murder in the second degree." The objections are that it is a collection of abstract legal phraseology, inapplicable to the facts, finding no support in the evidence, and depriving him wholly of the benefit of an instruction on murder in the first degree; puts a greater burden upon him than the law authorizes, and requested the jury to find, before they could be authorized to convict of murder in the second degree, that defendant was in a sudden transport of passion, aroused without an adequate cause, there being no evidence as to the condition of the defendant's mind, aroused by any sudden passion arising from any cause adequate or inadequate, and also required the jury to find that the killing was not in self-defense, there being no evidence of self-defense, etc. We are of opinion that the charge is favorable to appellant. In fact we very seriously doubt if the evidence suggesting the theory of murder in the second degree is in the case. If appellant did the killing, it was upon former grudges, and for revenge on account of being supplanted in the affections of the negress, Ida McGrew. He went to the place where they were together at night, and shot deceased in the back. If he did the killing; and it was done on this account, murder in the second degree would be excluded. If he found deceased with the woman, not expecting to meet him at that point, and he killed him because of that fact, with the former grudges out of his mind as well as his antecedent malice towards him, then it would have been upon a sudden impulse. Whether or not this peculiar expression, "sudden transport of passion" would be technically correct or incorrect we do not deem it necessary to discuss, but under this record, we do not believe this could have possibly injured appellant, even if it was error. The court charged fully upon murder in the first degree, murder in the second degree, and then gave the reasonable doubt between the two degrees. There was no adequate cause in the record. Therefore, the question of manslaughter could not have been considered by the jury, from any standpoint, and if there was any passion at all, it was from an inadequate cause; and if it was upon a sudden meeting, in view of all this record, to have *Page 360 charged the jury that it was upon a sudden transport of passion, would not be of sufficient moment, if wrong, to require a reversal. This is recognized by appellant's next exception to the charge, in which he contends that the court erred in not charging the jury that, if appellant went to the house of Ida McGrew, without any intention of killing the deceased, Henry Spell, and while there he saw deceased and the woman together, and from any cause not deemed adequate, killed to reduce the offense to manslaughter; or there was prejudice in the mind of defendant, a sudden transport of passion, anger, rage, or terror, rendering the mind incapable of cool reflection, and while in that condition of mind, he formed the intent to kill, and did shoot and kill Henry Spell, he would be guilty of murder in the second degree. While this charge is based upon a remote and rather speculative condition, in our opinion, it was sufficiently given in the charge complained of by appellant, just discussed. For if murder in the second degree could be based upon any fact in this record, it would have been upon the fact that defendant came suddenly upon deceased with the woman. There was no possible contingency in this record that would have authorized a charge upon murder in the second degree, except that one fact. We are of opinion that the charge as given in this respect is sufficient, and there was no error in not giving the charge of which appellant complains.
The court's charge is also criticised for failing to submit the issue of manslaughter. There is not a fact in the case calling for it. Believing there is not sufficient error in the record authorizing a reversal, the judgment is affirmed.
Affirmed.
[Motion of appellant for rehearing overruled without written opinion. — Reporter.]
ON REHEARING. November 21, 1906.