The sufficiency of the evidence is questioned. According to his testimony, appellant was forty-three years of age, and a man of family. He was a farmer. The deceased was about the same age as the appellant and also a man of family. From the appellant's testimony we quote:
"I saw him there at the dance about the 20th of July, 1924. Me and my wife and my daughter went to the dance. * * * She is about seventeen years old. * * * I carried a pistol with me when I went over to the dance. I carried that pistol to protect my family."
The killing took place about five o'clock in the morning. Appellant said that he had been told by his wife a few minutes before the shooting that Manuel Granado, the deceased, wanted to dance with the daughter of the appellant; that she was told *Page 596 not to dance with him as he was drunk. Appellant further said that he came back out to the other side where there was a wagon, and was standing by the wheel when deceased came up. Appellant had been told that deceased wanted to have intimate relations with the daughter of the appellant. This information came to him in his field about three days before the homicide. The previous relations between appellant and deceased had been friendly. According to the appellant, on the occasion of the homicide, the deceased came and asked him for a drink and used an oath. Appellant said that both he and deceased had had two or three drinks that night, at least the deceased appeared to have been drinking. There had been no previous conversation between the two that night. Appellant said:
"He told me if I did not give him a drink he would jump on me once and three times on my family. When he said that he caught me by the jacket here on the shoulder as he said that. I unbuttoned my coat and turned around, he followed me, he pulled my coat off of me and I turned around and shot him. I shot him because I was afraid of him, because of what he had said about my family. I judged him to be angry by the way he took me by the shoulder when he caught me by the jacket."
In his cross-examination, appellant said that he saw no weapon upon Granado; that there had been no previous trouble between them; that Granado had been seen by him that night during the dance and passed through the crowd; that he saw him about two or three hours after the dance began.
In addition to his testimony, the written confession of the appellant was introduced, which coincided in the main with his testimony except that there was no reference therein to any threat to have intimate relations with the daughter of the appellant.
The state's testimony, coming from the son of the deceased, was to the effect that deceased and appellant were standing together; that deceased caught the arm of the appellant and was told to release him. From his testimony we quote:
"Pablo Guzman got his arm loose and when he got his arm loose my father turned him loose. Pablo Guzman pulled off his jacket and threw it up on a barrel. He went off a few steps pretty fast and turned around and shot him, my father."
The deceased was unarmed. He was in the habit of getting drunk whenever he went to a dance, and his son was with him, fearing he might have trouble.
There was testimony that appellant bore a good reputation for peace and quietude. The deceased had the reputation of a *Page 597 violent and quarrelsome man when he was drunk; that he was in the habit of drinking intoxicants.
The court submitted the issues of self-defense, and manslaughter in a charge which appears unexceptional and against which no exceptions were addressed. We would not be warranted in holding that the issue of murder was not raised by the evidence. The state of mind in which appellant fired the fatal shot whether rendered by passion incapable of cool reflection, was a matter necessarily for the jury to determine. Having decided the issue against him upon sufficient evidence and under a proper charge, the conclusion is binding upon this court. The penalty, while heavy, was under the law within the discretion of the jury.
The attack upon the verdict of the jury is upon the ground that new and material testimony prejudicial to the appellant was brought before the jury in its retirement. If we comprehend the record, this averment is based upon the claim that the foreman of the jury, Stanhope Henry, explained to the jury his version of the killing of one Maldonado, another Mexican in Atascosa County, a few weeks prior to the present homicide, and that he mentioned other killings; that these other homicides were used in argument as a reason for assessing the extreme penalty against the appellant. We have carefully re-examined the bills of exception in which there is embraced the testimony of the various men who composed the jury. From their testimony it is apparent that there had been other homicides in the county at various times. Some of the jurors claimed that these were mentioned by the foreman Henry. As we understand it, practically all of the jurors who gave testimony to that effect admitted that no remarks of that nature were made by anyone until after the jury had voted the appellant guilty of murder. The trial court was justified in concluding that if arguments along that line were made, they took place either after a verdict was agreed upon or while they were deliberating upon the penalty. From the testimony of the foreman, we quote as follows:
"My name is Stanhope Henry. I was foreman of the jury that tried Pablo Guzman at this term of court. I don't remember hearing any remarks made after we began discussing at the table and during our deliberations with reference to the fact that there had been too many killings in Atascosa County. I don't recall making any such remarks myself, and certainly not to influence anybody and I was not influenced in arriving at my verdict by anything other than the law and the evidence in *Page 598 this case. If it is admissible I don't mind telling how I stood in the case. There was no question about guilt in the mind of anybody; that was decided and the question then before the jury was the term of years, and I know that I cast a vote for the lowest term of years; that is the lowest term of anyone else, and I did that in view of the fact that this man was a very ignorant man and he seemed to try to tell the truth. I hadn't a doubt but that this man had committed a crime against the laws, for which the extreme penalty was hanging, but for his ignorance and truthfulness on the witness stand, this jury would have hung him."
The testimony of other jurors is very meagre and indefinite. One of the jurors testified that according to his best recollection, somebody stated that the county had a bad record during the past year in regard to homicides. This same juror and others disclaimed any knowledge of any argument unfavorable to the appellant, based upon references to other homicides. We gather from their testimony that the jury knew of other homicides, but are constrained to believe that the learned trial judge was well within his rights and within the record in concluding that there was no use of this knowledge made against the appellant. It was manifest from the testimony of Henry that the averments in the motion upon the subject were at least controverted. The rule which obtains in such a case is that when evidence of misconduct of the jury, or the receipt of other testimony heard upon the motion for rehearing, is conflicting, this court is bound by the decision of the trial court. In view of this rule, we are not prepared to say that the conclusion of the trial court that there was no new evidence and no prejudicial use of the knowledge within the minds of the jurors during their deliberations is not supported by sufficient evidence.
The motion for rehearing is overruled.
Overruled.