Appellant was indicted, tried and convicted for the murder of one Otto Smith, and his punishment fixed at thirty years in the penitentiary.
When the case was called for trial, an application was presented for a change of venue, the ground of which was that there existed in that county so great a prejudice against appellant that he could not obtain there a fair and impartial trial, this application being supported by the affidavits of two persons. The State controverted said application upon statutory grounds, and the court heard evidence, consisting of about a dozen witnesses, on behalf of appellant, and a number for the State. An examination of their testimony shows that several witnesses for appellant testified that there existed prejudice against him, but most of these showed a limited acquaintance in the different communities of the county and confined their testimony to the statements heard in those communities, there being only one of said witnesses who testified that in his opinion appellant could not obtain a fair and impartial trial in Jones County. It was shown that Jones County was a large and populous county, having in it about twenty-five thousand people. The burden of proof to establish the existence of the alleged prejudice in said county against him, was upon appellant in view of the State's contest and the State having shown by a number of witnesses who testified that they were acquainted throughout the county, and that in their opinion he could obtain a fair and impartial trial in said county, it would be the duty of this court to uphold the action of the trial court, unless satisfied that the judgment of the lower court was not the result of a fair and impartial decision of said question. The only witness for appellant *Page 210 who testified that he did not believe he could obtain a fair and impartial trial in Jones County, was related to appellant. We are unable to say that the trial court incorrectly decided this issue against appellant.
Appellant's second objection and assignment of error is to the eighth paragraph of the court's charge, which is as follows:
"You are charged that when an act committed is the unlawful intentional homicide of a different person from the one intended and is without malice aforethought, and is done while the mind is under the immediate influence of sudden passion, arising from an adequate cause, as adequate cause has been hereinbefore defined to you, and renders the mind at the time incapable of cool reflection, the act, if a crime, would be of no higher grade than manslaughter."
We are unable to see under any construction of said charge, how injury was possible to appellant. The purpose of the paragraph is manifest, and if the word "intentional" be omitted, it would be a very fair statement of a correct legal proposition, and the inadvertent insertion of the word "intentional" does not in any conceivable way affect the sense of said charge, so as to make it injurious to appellant.
Appellant complains at paragraph 14 of the court's charge, which is as follows:
"You are charged that if you believe from the evidence that at the time Otto Smith, the deceased, was shot by Ray Anderson, if he was so shot, the said Will Smith made an attack upon Ray Anderson and F.W. Anderson, or either Ray Anderson or F.W. Anderson, or was about to make an attack upon the said Ray Anderson and F.W. Anderson, or either Ray Anderson or F.W. Anderson, with a gun capable of producing death or serious bodily injury, then in that event the law presumes that Will Smith intended to kill Ray Anderson or F.W. Anderson, or both."
An inspection of the record will show that appellant claimed justification for his act in shooting and killing the deceased on the ground that the brother of the deceased had a shotgun at and just prior to the shooting, which appellant claimed was raised in a threatening manner by the brother of deceased before he, appellant, had made any demonstration at all, and that his own action in firing his gun was in self-defense against the purported attack of the brother of deceased. His proposition, as stated, is that if appellant believed from his standpoint, that the brother of deceased was making an attack, or about to make an attack upon him or his father, with a gun, he would have the right to shoot in self-defense regardless of whether the gun was a deadly weapon or not. Appellant's view of the law is substantially correct, and if paragraph 14, at which his complaint is directed, was all that was said by the trial court, there might be just grounds for his criticism, but an inspection of paragraph 13 of said charge discloses that the court therein charged the jury as follows: *Page 211
"You are charged that if you believe from the evidence that the defendant Ray Anderson, and F.W. Anderson, on the day of the killing of the deceased, Otto Smith, were traveling along the Anson and Tuxedo public road and approached deceased, Will Smith and Tom Smith as they were seated in a buggy in front of the residence of John Gooding, and that Will Smith shot at the defendant and F.W. Anderson, or either of them, or that Will Smith raised a gun as if to shoot the defendant and F.W. Anderson, or either of them, or that Will Smith shot the car in which the defendant and F.W. Anderson were seated, and you further believe that by reason of said acts, if any, on the part of Will Smith, or by reason of any or all of said acts on the part of Will Smith, if any, either when taken alone or in connection with all or any of the relevant facts and circumstances in evidence, you believe that there was created in the mind of the defendant Ray Anderson, or F.W. Anderson, a reasonable expectation or fear of death or serious bodily injury at the hands of Will Smith or Tom Smith or the deceased, or either of them, viewed from the standpoint of the defendant or F.W. Anderson at the time, and you believe that Ray Anderson, acting upon such reasonable expectation or fear of death or serious bodily injury of himself or F.W. Anderson, at the hands of Will Smith or Tom Smith or deceased, or either of them, shot and thereby killed the deceased, or if you have a reasonable doubt thereof, then you will find the defendant not guilty."
This paragraph of the charge fully covers the matter of appellant's complaint and objection, and instructs the jury that appellant would be justified in acting upon a reasonable apprehension of danger, as viewed from his standpoint, regardless of whether the gun was or was not a deadly weapon, and regardless of whether he shot before, at the time of, or after the brother of deceased fired his gun and regardless of whether Will Smith shot at all or not, and said paragraph 13 of the charge is a concrete application of the law of the case to its facts. The well recognized rule of construction is that the charge as a whole must be looked to, and not isolated paragraphs thereof.
Objection is further made to paragraph 16 of the charge, as being too restrictive of appellant's right to arm himself and seek his assailant for an interview. That portion of the charge complained of is as follows:
"You are charged that the defendant had the right, together with his father, F.W. Anderson, to seek the deceased or to seek Will Smith, or either of them, for the purpose of having an interview with them in regard to any difference that might have arisen between them as to a division of the feed crop raised by Otto Smith on the farm of F.W. Anderson in the year 1918, and also had the right to arm himself against any attacks the deceased or Will Smith or Tom Smith might make upon him or might make upon F.W. Anderson *Page 212 had he reasonably feared they or either of them would make upon him or F.W. Anderson while doing so."
If we examine the evidence in the record, we find that only one difference existed between the parties to this unfortunate tragedy, and that difference grew out of the division of the feed crop raised by Otto Smith upon the land of F.W. Anderson, the father of appellant. It is Well settled that any instruction must be pertinent to the issues and evidence of the particular case, and this applies to any instruction given by the trial court in the instant case to the effect that one accused of homicide has the right to arm himself, or to arm himself and seek his assailant for any purpose. An inspection of the record in this case shows that after the difference arose between the deceased and the father of appellant over the division of the feed crop that appellant's father told him of the difficulty, and also told him that he was going up to the Swenson ranch and get another brother of appellant's to come home and help him cut and take care of this feed crop. Appellant testified that his father did not know the way to the Swenson ranch, and that he went with him to show him, and inasmuch as he knew they were coming back by the house of Otto Smith, that he procured the gun with which the killing took place. His own account as to why he got the gun, is given as follows in both his direct and cross-examination statements relative thereto. On direct examination he said: "That was a sixteen guage pump gun belonging to me. I got the gun — I knew that he had to come back right by Mr. Otto Smith's house, and I got the gun, if we might come in contact with them. I could see from the way they acted here in town that they wanted trouble, and there was three of them, and I got the gun simply to protect my life and my father's life, to bar them off, to have a talk with them if I could and have them settle that matter without any trouble at all. I thought I could get it settled if I could have a peaceable talk with them, I felt like I could."
On cross examination, with reference to this matter, appellant says: "I stated that I got the gun when I got back home. I knew we had come by Otto Smith's and if we did come in contact with them I could possibly reason the thing with them and keep them barred off of us; I got the gun for protection only, to have a reasonable talk if we could, a peaceable talk."
It thus appears that according to his own version of the matter, appellant took the gun because he feared a clash with the three Smiths, and that at most, he thought by the use or possession of the gun he might keep them barred off and have a conversation with them, and have them "settle that matter," evidently referring to the trouble over the feed crop. These were the most favorable constructions of which the evidence was susceptible, and they were fully covered by the charge of the court, which told the jury that appellant had the right to arm himself against any attack which he might *Page 213 fear the Smiths would make upon him or his father, and that he had the right to arm himself and seek his assailant to have an interview in regard to any difference over the feed crop.
As intimated above, no other trouble, or cause for trouble, between the Smiths on the one hand, and appellant and his father on the other, is suggested by any evidence except that of the division of the feed crop. We think the charge applicable and not too restrictive.
We are unable to agree with the contention that the verdict is unsupported by the evidence. Deceased was a tenant on the land of appellant's father, and a dispute had arisen over the division of the feed crop, and according to the State's evidence, very harsh language was indulged in by the father of appellant, and threats made by him. The State's evidence shows that the next day after the beginning of the trouble between the deceased and appellant's father, that the Smiths met appellant and his father, the former being armed with a gun and the latter with a club, and that the Smith boys turned back and avoided an actual meeting with them. It was asserted by the State's witnesses that on that day, and in the presence of the appellant, his father again threatened the Smith boys, calling them opprobrious names. On the occasion of the homicide the three Smiths were in a buggy in the road in front of the house of one John Gooding, talking to Gooding, when a car approached, in which were appellant and his, father, the latter driving the car. As the car passed the buggy, according to the State's witnesses, appellant raised a gun quickly and fired, killing the deceased. A sharp conflict appears in the evidence as to which of the parties made the first demonstration on that occasion. Both the Smiths and John Gooding swear that their party made no demonstration or hostile movement at all until after appellant had shot. Appellant swears that Will Smith raised his gun as if to shoot before he, appellant, raised and fired his, and that he acted entirely in his self-defense.
In view of this conflict in the evidence, it is the province of the jury, under our practice, to settle such matters, and we are unable, as stated, to agree with the contention of appellant that their decision against appellant is without support in the evidence.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. January 14, 1920.