The appellant in this case was tried and convicted for murder of the first degree, and his punishment assessed *Page 629 at confinement in the penitentiary for life, and from the judgment and sentence of the lower court he prosecutes this appeal.
The first question presented for our consideration is the refusal of the court to quash the special venire on motion of the appellant. The grounds of said motion were as to four of said jurors. The sheriff showed that they were not summoned, but did not show what diligence he used in order to get service on them, and that said return not only failed to show that the summons was made verbally, in person, upon all the other jurors served, but on the contrary, it shows that they were not served in person, but by notice. On the submission of the motion the court permitted the officer's return to be amended so as to show the persons summoned, and that they had been summoned verbally and in person. Said return, as amended, was contested by the appellant. After hearing evidence, the court sustained the return, and defendant excepted.
It was allowable for the court to permit the officer's return to be amended. Murray v. The State, 21 Texas Crim. App., 466; Powers v. The State, 23 Texas Crim. App., 42; Rodriguez v. The State, 23 Texas Crim. App., 503; Williams v. The State, 29 Texas Crim. App., 89. The record shows, that after the return was amended, on a contest of the return, evidence was adduced which showed that neither the sheriff nor his deputies then present made the summons of the special veniremen, but the same was made by other deputies, who reported to the sheriff. Under the rule laid down in the Williams case, 29 Texas Criminal Appeals, 89, this character of service was allowable, it being shown in this case that the defendant did not exhaust his challenges, and that he was not forced to take any objectionable juror. As to the four jurors not served, the court stated, that if the defendant desired he would issue attachments for said jurors, which they did not demand; and as to the juror Woods, the only one shown to have been served by a written notice and not in person, he was excused by the court. So far as the record discloses, all the special veniremen who were summoned responded to the summons by appearing in court, and it was permissible, if they had not been summoned properly by an officer, for the counsel of defendant to examine each of said jurors on his voir dire as to the character of service made on them. This does not appear to have been done. No injury appears to have resulted to the defendant from the course pursued, and as was said in Murray v. The State, supra, the provisions of the statute relating to the summoning of a special venire are directory only, and the failure of the trial court to conform to them is not reversible error unless injury to the defendant be shown, which, as stated before, was not done in this case.
The defendant in this case requested the court to charge "reasonable doubt" upon every phase of his defense. The court gave a succinct and pertinent charge on the defendant's right of self-defense, as presented by the evidence in the case, and a charge was given on *Page 630 reasonable doubt as between the degrees of murder, and the jury were instructed, that if they did not believe beyond a reasonable doubt that the defendant was guilty of the charge they would acquit him; and it was not error for the court to refuse to give the special charge asked by defendant.
The appellant also asked the following charge: "If you believe from the evidence that there was malice on part of the defendant towards the deceased at the time of the killing, which was evidenced by former grudges, menaces, and threats, but that deceased did first shoot at, or attempt to shoot at, defendant, under such circumstances as would justify defendant, on the ground of self-defense, in taking the life of deceased, if it had not been for such malice; and if you are unable to determine from the evidence whether defendant took the life of deceased because of such malice, or because of the provocation arising at the time of the killing, tending to show justification on the ground of self-defense, you will attribute the killing to such provocation tending to show self-defense, and find the defendant not guilty." The court's charge on self-defense, as before indicated, clearly stated to the jury, in apt phraseology, and responsive to the facts in this case, that if the defendant was not engaged in a mutual combat with the deceased, but the deceased made the first attack on him, or did any act from which the defendant might reasonably infer or believe that his life was in danger, or that he was in danger of serious bodily injury, he was authorized to slay the deceased. This presentation of the law clearly eliminated from the jury any malice or threats that the defendant may have entertained or expressed towards the deceased prior to the homicide, because said charge authorized them to acquit on such hostile demonstration on the part of the deceased, regardless of any anterior facts or circumstances, and this, in our opinion, was sufficient.
The appellant claims, in this case, that the court committed an error in failing to charge on manslaughter. We have carefully examined the record to see if there was anything in the facts calling for a charge on this branch of the law, and there is nothing to have required the court to so charge. The evidence on the part of the State presents two theories — either murder of the first or second degree; and the evidence for the defense presents the theory of self-defense. The court gave these phases of the case fully and fairly in charge to the jury, and the jury found the defendant guilty of murder in the first degree. The evidence, in our opinion, is sufficient to sustain that verdict, and the judgment of the lower court is accordingly affirmed.
Affirmed.
Judges all present and concurring. *Page 631