Appellant was convicted in the District Court of Lee County of assault with intent to murder, and his punishment fixed at five years in the penitentiary.
The evidence in the record seems ample to support the verdict and will not be set out or discussed further.
But fifteen jurors being before the court when this case was reached for trial, the judge administered to the sheriff the oath prescribed by Article 5170, Revised Civil Statutes, and directed him to summon other jurors. The sheriff 'phoned to certain deputies who thereupon caused twenty-six men to attend court as jurors at the time directed by the court in his instructions to the sheriff. Objection being made that these proposed jurors had been summoned by men not sworn so to do, the court then again directed the sheriff to summon the required number of jurors, whereupon the twenty-six men who had appeared were summoned by the officer and their names placed on the jury list. Without lengthy discussion it would appear that complaint of this procedure is not sound.
Appellant's bill complaining that additional talesman were summoned and added to the list of jurors drawn by the jury commission, before he was called on to strike the fifteen names of jurors who had been regularly drawn, is qualified by a statement of the learned trial judge that when the number of regular jurors was reduced on their voir dire to fifteen men, he suggested to appellant's counsel that a jury could not be gotten from said number and that additional talesmen should be summoned, to which appellant's counsel agreed and it was done accordingly. In making up the jury list the names of the *Page 211 fifteen regularly drawn, appeared first. This presents no ground for complaint.
Five jurors on the list drawn by the jury commission failed to appear. Appellant asked for attachments and that the case not proceed until the absent jurors were brought in. The record contains no suggestion of injury to appellant from the court's refusal of both requests. It is not shown that appellant exhausted his challenges or that any objectionable juror was forced on him. Sweeney v. State, 59 Tex.Crim. Rep..
Witness Fields was asked to tell what he saw or did with reference to Pitts (the injured party) after the shooting. No objection was made to this question. As part of his answer the witness said that Pitts remarked as he helped him up from the ground after the shooting: "I knew he was going to get me." This was not responsive to the question. No motion was made to exclude said remark. It was res gestae, but in any event no motion having been made to exclude, there was nothing before the trial court for his decision, upon which error could be claimed. King v. State, 253 S.W. Rep., 262. The mere statement of appellant that he excepted to that part of the witness' testimony brought nothing before the court.
The argument of State's attorney complained of in bills of exception Nos. 5 and 6, as qualified by the trial judge, presents no error.
In the main charge the learned trial judge told the jury as follows:
"If you believe from the evidence that the defendant, John C. Parker, did, with a pistol, shoot the said H.R. Pitts; and you further believe from the evidence that at the time of such shooting the said H.R. Pitts did make a demonstration, as if to draw a weapon, that induced the defendant to believe, viewed by you from the defendant's standpoint at the time that he, the said H.R. Pitts, was about to attack him, and inflict death or serious bodily injury on him, then you are charged that the defendant had the right to shoot the said H.R. Pitts, and he would not be required to retreat in order to avoid the necessity, or apparent necessity, of shooting the said H.R. Pitts; and if you so find you will acquit the defendant.
In this connection you are charged that the danger need not have been real; it is sufficient if it so appeared to the defendant, and in passing upon this matter you must do so from the defendant's standpoint at the time as it appeared to him."
Analysis of this makes apparent that it obviates the necessity for giving special charges seeking to present the theory of the right of the accused to act on apparent danger.
That the State on cross-examination of a defense witness who said he was watching the parties to the difficulty when it occurred, was *Page 212 allowed to ask said witness why he was watching them, would appear legitimate, and his answer that it was because of former trouble between the parties, would appear a fair examination and in no way injurious. The record discloses that while appellant was a witness in his own behalf he swore: "I had had some trouble with that man and it was reasonable to suppose he was mad." We find no ground for objection to said cross-examination.
That jurors sat in appellant's case who had not been fully naturalized was held not available as ground for a new trial in Squyres v. State, 242 S.W. Rep., 1021.
The principal way into the court house, in fact according to the witnesses practically the only one that was used, led near where the shooting occurred. An effort was made to show that the jury in passing saw and observed the surroundings at said place which would require granting a new trial upon the ground that they had received other testimony than that which came from the witnesses. We have carefully examined the evidence introduced before the trial court in support of the motion for new trial and think it entirely lacking in showing that any of the jury observed or considered any material things seen by them at said place, and that the trial judge in refusing to grant the new trial on this ground was wholly within his discretion.
That one juror explained in the Bohemian language to another the meaning of the word "guilty," would seem in nowise to constitute error; nor would the fact that after the jury had arrived at their verdict and were waiting to be called before the court to announce same, that some statement was made about how the prosecuting witness lost a finger.
Newly discovered evidence impeaching in its character would not call for the granting of a new trial, and such we consider to be that introduced by appellant in support of this ground of his motion for new trial.
Being unable to agree with appellant in any of the contentions made, the judgment will be affirmed.
Affirmed.
ON REHEARING.