Appellant was convicted of murder in the second degree and his punishment assessed at twelve years confinement in the penitentiary; and prosecutes this appeal.
This is the second appeal of this case, it having been previously reversed and remanded at the fall term of this court in 1906. See 97 S.W. Rep., 82. The facts developed on this trial are substantially the *Page 384 same as those on the former, and we refer to the statement of facts contained in that opinion.
Briefly summarized, the deceased was a policeman in the town of Mt. Calm in Hill County, and appellant and his companion Harmie Horn, who were related to each other, were on the way from a livery stable in said town to the boarding place of appellant some time about midnight, both being under the influence of liquor, Horn it seems was more under its influence than appellant; that the deceased had been out in the country that night and returned to the stable with the team shortly after appellant and his companion left the stable. As soon as deceased turned his team in, he left going in the same direction that appellant and his companion had gone. It appears that after overtaking the parties that he attempted to arrest Horn for drunkenness, when a fight ensued, in which the deceased lost his life. The testimony tends to show that Horn used a knife and deceased had a whip handle which he used as a club, and also a pistol. There is some evidence that besides the wounds inflicted on deceased with a knife that a contused wound was inflicted on deceased's head; and the State's theory is that this may have been done by appellant with a pistol. There is also some evidence to the effect that a grudge existed between deceased and appellant, beginning some weeks prior to the homicide. In this connection there is also evidence that the parties had made friends after the former altercation. This is a sufficient statement in order to discuss the assignments of error.
Appellant made a motion for continuance, which the court overruled, and this is assigned as error. The application was based on the absence of the witnesses Hamp James and George Robertson. The court, in approving the bill of exceptions, as to the witness James, states that, as to him, "It was developed by sworn testimony during the progress of the trial that he had left Hill County two or three months before the case was called for trial and that it was generally known in the community of Mt. Calm that he had gone to Oklahoma Territory and it was so known at the time he left, and there was no effort made to procure his testimony, and consequently no diligence was used." In view of this explanation, it would seem that there was a lack of diligence to get the testimony of this witness. However, it is said that this witness would testify that Harmie Horn was not drunk. It does not occur to us that the testimony of this witness, if he would so swear, would have had any material influence as to the verdict of the jury in the light of all the other evidence in the case.
As to the witness George Robertson, it does not seem that diligence was used for him. Appellant seeks, however, to excuse his lack of diligence by saying that he did not discover the testimony of said witness before he had process issued for him. The testimony of this witness would be merely contradictory evidence; that is, testimony to impeach the State's witness Will Harriss; that is, he proposed to prove a different statement made by the State's witness Harriss a short time *Page 385 after the homicide, which he states said witness would testify to on the trial. If it be conceded that the testimony of said witness would contradict the testimony of the State's witness Harriss, a new trial will not ordinarily be granted on account of impeaching testimony. We do not think the court erred in overruling the motion for continuance, or in overruling the motion for a new trial based on overruling the motion for continuance.
A bill of exceptions was reserved to the action of the court in the selection of the jury. A number of jurors answered that they had heard of the case against appellant and his codefendant Harmie Horn; that they had heard of the previous trials of said parties, and of their conviction and term of punishment, but that same would not influence them in finding a verdict; that among the jurors who sat on the trial of the case were J.B. Orenbaum, O. Bratcher, A.M. Johnson, J.C. Gunn, J.T. Mitchell, and W.E. Hayes who knew of the former conviction of appellant, and that appellant had in the meantime, before the taking of these jurors, exhausted his peremptory challenges, and the court overruled his challenge for cause on the ground assigned, and he was compelled to take said named jurors. In this action of the court there was no error. There is no contention, as we understand, that either of said jurors had any opinion formed as to the guilt or innocence of appellant caused from having heard of the previous trial and conviction, and the mere fact that they had heard of same did not disqualify them from trying this case.
Appellant complains at the action of the court in refusing to permit defendant to prove by Charlie Shaw that some time prior to the homicide and after the altercation in Shaw's barber-shop between appellant and deceased, that deceased stated to the witness Shaw that "it was a good thing he (Shaw) interfered in the difficulty when he did, because if he had not deceased would have knocked Early down with his pistol." In order to sustain his contention appellant refers us to a number of cases, but it does not occur to us that any of them sustain his contention. This was not a threat. It was a mere relation connected with a previous altercation of what the deceased said he would have done after the difficulty if he had not been interfered with; nor was it a part of the res gestæ of this difficulty. This difficulty did not grow out of that difficulty, nor, in our opinion, was the character of statement attributed to deceased of that kind which would tend to show who was the actual aggressor in the subsequent difficulty. If the altercation at the barber-shop had been a part of this difficulty, or if it had been even on the same day, the particulars of that former difficulty or what was said afterwards might serve to shed some light upon the homicide. In Everett v. State, 30 Texas Crim. App., 682; Nelson v. State, 58 S.W. Rep., 107, and Poole v. State, 45 Tex.Crim. Rep., referred to by counsel, the question did not come up at all as here presented. In all of said cases the testimony admitted was part of the res gestæ and showed appellant's state of mind towards deceased, *Page 386 and same was held admissible. In Poole's case the question was as to the state of mind and apprehension of appellant on the day of the difficulty and a very few minutes prior thereto, and what Poole said when he was informed that deceased was seeking him or was at a certain place waiting for him, was held admissible as showing Poole's state of mind and his desire to avoid a difficulty with the deceased. There was no such question here. We would further add that the testimony offered was no part of the details of the former difficulty; as heretofore stated it was not a threat, but merely a statement of deceased of what he might have done in the difficulty if he had not been interfered with. We fail to see how this testimony would have served the purpose of shedding any light on the subsequent difficulty in which the homicide occurred.
Appellant contends that the court committed an error in allowing the State to show that when appellant came back to the livery stable, he left the stable in a buggy with a couple of negro women and was gone some half an hour. The contention is that this sort of evidence was inadmissible and went to the character of appellant. We think it was permissible to show the movements of appellant during that entire night, not only his visit to Axtell to get whisky, and his drinking whisky, and his return to Mt. Calm, but what he did after he arrived there. If his conduct and movements brought him in contact with circumstances calculated to bring him into disrepute before the jury, that was his own fault. It was part of the res gestæ; showed appellant's surroundings, and, however, such surroundings might reflect on him, he could not escape his environments, especially of his own choosing, nor could he complain that reference was made as to what he was doing that night, and as to his movements immediately preceding the homicide.
Appellant assigns as error the tenth paragraph of the court's charge, which is as follows: "The instrument or means by which the homicide is committed is to be taken into consideration in judging the intent of the party offending; if the instrument be one not likely to produce death it is not to be presumed that death was designed unless from the manner in which it was used such intent evidently appeared." Appellant contends that there is no pretext here that appellant himself slew deceased, but that his companion Harmie Horn did the killing, and if it be conceded that Harmie Horn committed the homicide with a knife, which was a deadly weapon, the effect of the charge was to fasten the act of Harmie Horn, together with the presumption flowing from that act upon appellant. Evidently from the character of the wounds and the weapon Horn was shown to have owned, it was a deadly weapon, and the court's charge, if appellant himself had used the weapon, while not called for, would not be erroneous; and we believe that the other portions of the charge sufficiently safeguarded the appellant's rights in the premises; because when the court came to apply the law to the facts the jury were distinctly told that if Harmie *Page 387 Horn committed the homicide, that appellant must have acted with him and must have been actuated with the same intent which actuated Horn, before they could convict him. As we understand the cases, a charge of article 717 is not called for unless the weapon is of a non-deadly character; but if the weapon used in the homicide is unquestionably of a deadly character, then it is not error ordinarily to give said article in the charge. In some cases where the weapon is deadly and the defense is insanity or accident, it has been held that it might be error to give this article in the charge, but this was not such case.
In motion for a new trial appellant alleges misconduct of the jury. It was alleged in this wise, that the following jurors, to wit: O. Bratcher, R.L. Utley, J.M. London, Burt Mitchell, and G.E. Vessel, and other members of the jury, while they had the case under consideration, talked over the long distance telephones to their families and others without leave of the court or the consent of appellant or his counsel. As to these jurors the evidence shows substantially that five or six of the jurors, to wit: those named, and perhaps others, lived several miles from the county seat in the country; and in the presence of the deputy sheriff who had them in charge they were permitted to call their wives, and in one instance one of the jurors was permitted to call a lady who lived near his wife and talk to her over the phone. The talk was simply an inquiry after the condition of their families, and nothing was said with reference to the case on trial, and no allusion thereto was made. These conversations were by permission of the officer in charge of the jury; he heard in almost every instance what was said at that end of the line, but not what was said at the other end of the line. The jurors themselves testified as to what their conversations concerned, and each and all testified that it was merely with reference to something at home and nothing in regard to the case. Appellant contends that this was such a separation of the jury, and conversing with other persons in regard to the case, as comes under article 817, Code Criminal Procedure, subdivisions 7 and 8, and article 725 relating to the separation of the jury. Article 725, relating to the separation of the jury has often been construed, and the rule adopted is that where an actual separation has been shown, the court will not speculate as to the effect of such separation, or that any undue influence was exercised on the jury while so separated, but will reverse the case because of such actual separation. See McCampbell v. State, 37 Tex.Crim. Rep.; Lamar v. State, 39 S.W. Rep., 677; Walker v. State, 51 S.W. Rep., 234, and Neal v. State, Dallas Term 1907. This, however, was not an actual separation, as the jurors were altogether at the time, and were in the immediate custody of the sheriff. Subdivision 7 of article 817 provides for a new trial where a juror has conversed with some person in regard to the case. The examination developed that no conversation was had in regard to the case. Was it such misconduct as comes under subdivision 8? This article would seem to cover any character of misconduct calculated to *Page 388 prejudice the rights of appellant and not provided for specially by other statutes. When these articles of the Code of Criminal Procedure were enacted there was no such thing as a telephone, and evidently the law makers did not provide against the use of such an instrument by a jury, as they could not have foreseen this modern improvement in the development of our civilization. However, it must obviously appear that by the use of this means a juror might be tampered with and in the very presence of the officer who has him in charge, and there ought to be some special legislation on the subject. The question, as it here presents itself to us, is: was any injury shown or suggested in the testimony in regard to the conduct of these jurors in talking over the phone to members of their respective families? The jurors were critically examined and nothing was disclosed calculated to injure appellant. We accordingly hold the court did not err in overruling the application for a new trial predicated on this ground.
Appellant objected to the charge of the court on arrest, insisting that it was a charge on the weight of testimony. We have examined said charge, and in our opinion it is not subject to the criticism of appellant. We do not believe the charge assumes that appellant assisted Harmie Horn in resisting the officer in the exercise of his duties, nor did it authorize the jury to conclude from the charge that it was not even necessary for Horn to be drunk in a public place in order that Calloway should have the right to arrest him. This particular charge does not treat of the use of force required to make the arrest, or the use of more force that was necessary to consummate the arrest. As far as the charge went, it was, in our opinion, a proper charge. Other portions of the charge related to the question of force and the use of more force on the part of Calloway than was necessary to accomplish the arrest and to define appellant's rights under such circumstances. Of course, the officer had no right to make the arrest in a wanton or violent manner, or to use more force than was reasonably necessary, but we think a review of the whole charge will show that appellant's rights were sufficiently safeguarded on this subject.
Appellant says there was no testimony authorizing the court to give a charge on self-defense. The case is one of circumstantial evidence, and appellant's complicity in the offense, or his want of complicity, is to be measured by the circumstances as they were developed in the testimony. Appellant claims that he had nothing whatever to do with the killing of Calloway, but the State introduced testimony more or less inculpating appellant, and he might have just ground to complain had the court failed to give a charge on self-defense. At any rate, we fail to see how it could have injured him. It was not like the case where the claim is that defendant was not present at the homicide at all; in other words, where his defense is an alibi.
Appellant complains at subdivision 21 of the court's charge, which is as follows: "Now, if you have a reasonable doubt from all the evidence *Page 389 as to whether the said Harmie Horn was drunk in a public place and as to whether if he was drunk, the deceased, Terrell Calloway, was attempting to arrest him, or even if you should believe beyond a reasonable doubt that said Harmie Horn was drunk and that said Terrell Calloway was trying to arrest him, in the event you should have a reasonable doubt from the testimony as to whether the said Terrell Calloway attempted to use or was using more force than was necessary to make said arrest and that the said Terrell Calloway struck the said Harmie Horn with an instrument reasonably calculated to produce death or serious bodily injury, and the said Terrell Calloway and the said Harmie Horn engaged in a struggle and in the night-time, and that while they were so engaged in a struggle and the contest was going on between the said Terrell Calloway and the said Harmie Horn under such circumstances as that it reasonably appeared to the defendant that the said Terrell Calloway had unlawfully assaulted and was about to kill the said Harmie Horn or inflict upon the said Horn serious bodily injury, then you will acquit the defendant. In this connection, however, you are charged that the law which justifies a homicide by one to prevent the infliction of serious bodily harm or death, by the deceased upon another applies to a defensive and not an offensive act, and is limited to necessity or apparent necessity and cannot exceed the bounds of mere defense and prevention. If therefore you believe from the evidence beyond a reasonable doubt that the defendant interfered in the combat between the deceased and Harmie Horn for the purpose of preventing the deceased from killing Harmie Horn or inflicting upon him some serious bodily harm, but you should believe beyond a reasonable doubt that the defendant engaged in said combat knowing that the said Harmie Horn was drunk, and that the said Terrell Calloway was trying to arrest him on account of his being drunk, and to assist the said Harmie Horn in an unlawful assault upon the deceased, then the doctrine of defense of another would not apply and he would not be justifiable and this would be the case no matter to what extremity he may have been reduced in the course of the difficulty." This was a charge which, in the first portion thereof, instructed the jury as to appellant's right to interfere in case his friend Harmie Horn was put in danger of his life or serious bodily injury from an assault by Terrell Calloway. We think this portion of the charge very properly instructed the jury that appellant had a right to interfere if they had a reasonable doubt whether Harmie Horn was drunk in a public place and Terrell Calloway was attempting to arrest him, or if Calloway attempted to use more force to make said arrest. In the latter portion of the charge the jury were instructed that if appellant knew Harmie Horn was drunk and deceased was trying to arrest him, he had no right to interfere to keep him from being arrested, and in such case the doctrine of defense of another would not apply. In the twentyieth paragraph of the court's charge, just preceding the above charge, the jury were fully instructed in regard to the arrest or attempted arrest of Harmie Horn by deceased Calloway, *Page 390 and appellant's right to interfere on behalf of Horn in case the jury believed the arrest of Horn illegal; that is, if it was illegal either by reason of Horn not being drunk, or was rendered illegal by Calloway using more force than was necessary and appellant interfered; under such circumstances he was authorized to repel force by force to prevent said arrest. Of course, the jury took this charge, and all the court's charges on this subject, and considered them in connection with one another, and so considered we do not believe the court's charge was erroneous; certainly not to the extent of constituting reversible error.
Appellant insists that the evidence does not sustain the verdict. We have carefully examined same, and in our opinion we believe it does.
There being no errors in the record, the judgment is affirmed.
Affirmed.
Brooks, Judge, absent.
ON MOTION FOR REHEARING. June 19, 1907.