The appellant was convicted of the offense of assault with intent to murder, and his punishment assessed at fifteen years in the penitentiary.
The shooting, which resulted in the death of the deceased, Jack Gjertsen, arose over an argument concerning a labor or welding job the appellant had shortly before the difficulty performed at the instance and request of the deceased. After the work was done, appellant presented a bill for about $60.00 on a time and material basis. The deceased and a witness by the name of Bell, who was working for deceased, insisted that the appellant had made a price on the job of $25.00 or $35.00. The contention of the state was that the appellant went to deceased's place of business and, after considerable argument over the account, drew his pistol and killed deceased without any provocation or excuse. The appellant defended on the ground of self-defense, testifying that the witness Bell and the deceased both were making an assault on him at the time he shot at the witness Bell and deceased.
The appellant requested three special charges, all of which were given by the court. The three special charges given cured all the exceptions and objections to the court's charge pointed out by the appellant.
Bill of exceptions No. 1 complains at the court's refusal to give special charge No. 1. We are unable to agree with the appellant's contention.
Special charge No. 3, requested by the appellant and given by the court, correctly presented the appellant's theory as to the shooting and did not in any way limit his right of self-defense. Said charge also instructed the jury that if they believed from the evidence that the witness Bell or the deceased by reason of any act done on their part, viewed from the appellant's standpoint, there was reasonably produced in his mind the fear of the loss of his life or any serious bodily injury to himself, and if while he was acting under such apprehension he shot and killed the deceased he would not be guilty of murder or manslaughter and would be entitled to be acquitted, even though the jury should find that he was not entirely free from blame or wrong in the transaction, or if they had reasonable doubt on this issue they would give the appellant the benefit of such doubt and acquit him.
Bill of exceptions No. 2 complains at the action of the trial court in overruling appellant's motion for a new trial on the grounds that the jury trying the case was guilty of misconduct *Page 448 in that one of the jurors while they were deliberating upon their verdict carried on a conversation with some persons whose name was unknown to the appellant. We have carefully reviewed the evidence submitted on the motion and fail to see where the appellant was deprived of any valuable right or suffered any injury. The misconduct of the jury complained of was that the juror Skipworth asked a Mr. Walker to go to the postoffice and get his mail, and the said Walker did so and brought the mail to him. This conversation between the juror and Walker took place in the presence of the officer in charge of the jury.
Bill of exceptions No. 3 complains of the action of the trial court in permitting the prosecuting attorney on cross-examination of the appellant to hand the appellant a written statement made by the appellant's son in the appellant's absence and ask the appellant to read such statement. Objection was made for the reason that the same was an ex parte statement made in appellant's absence. Appellant was requested to read the statement but not so that the jury could hear it and, after the same had been read by the appellant, the County Attorney asked him if the matter stated therein was true and appellant answered "No." Further questions were then asked appellant by the prosecuting attorney. Said statement was not offered in evidence nor were the jurors advised as to its contents.
We are unable to agree with appellant's contention as set out in this bill. The appellant's counsel had the right, on re-direct examination, to question appellant as to the matters brought out by the state on cross-examination. It does not appear that the appellant made any request of the state to see said statement and to read the same. Had the appellant demanded the right to see the written statement and to read the same and been refused that right, another question might have been before us for consideration.
The court in passing sentence, however, failed to recognize the statute with reference to the indeterminate sentence, the sentence being for fifteen years. The sentence will be reformed so as to conform to the indeterminate sentence statute, and made to read that the punishment shall not be more than fifteen years nor less than two years.
The facts are amply sufficient to support the verdict of the jury and, there being no errors in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been *Page 449 examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.