The appellant was convicted in Burleson County for the murder of A. C. Walton with malice, by shooting him with a gun, and his punishment was assessed at twenty years in the penitentiary.
The offense is alleged to have been committed on the 20th day of May, 1938.
This is the second appeal. The opinion in the former appeal will be found in 137 Texas Crim. Rep., 23, 127 S. W. (2d) 908. The facts therein stated will not be repeated.
Both parties were negroes. The deceased was a merchant, and the appellant’s wife had worked for him. Jealousy had arisen on the part of the appellant and the contention is made that he killed the deceased because of his conduct with his wife. He also details circumstances under which he claims the right- of self-defense. Appellant had attempted to talk with the deceased but it seems that for some reason the deceased evaded him. The reason for his doing so is immaterial. At the time of the killing appellant waylaid the deceased, placed an obstruction on the highway to stop his car, and having armed himself, he approached the deceased and demanded a conversation. If deceased had, under such circumstances, attempted to shoot the appellant and had succeeded in doing so, he would appear to have an issue of self-defense behind which would be more forceful circumstances than those supporting the appellant. Both parties could not have that right. If the jury so viewed it in finding the appellant guilty, they were warranted by the evidence in reaching that conclusion.
Among the principal contentions in this appeal is that raised by Bills of Exception Nos. 1 and 2 which complain that the appellant has been discriminated against in that he is a man of the colored race; that he was indicted by a grand jury from which men of his race had been excluded and that he was tried by a jury exclusively of white men. The complaint is that the appellant had been discriminated against and not that his race was so treated. The grand jury returning the in*164dictment had been selected before the commission of the crime, and there could have been nothing personal in selecting the grand jury. Assuming that it was meant to complain that the negro race had been discriminated against, we have carefully examined the record and are unable to find any evidence of such discrimination. The jury commissioners testified that in selecting the jury they were concerned only with following the court’s instruction to get good and capable grand jurors and that they did so without any thought of race, color or class of individuals; that they picked men from various sections of the county, taking from each community the best man for service whom they knew. One commissioner said that he did not know a negro would be qualified under the law to serve on the jury, otherwise he would have given consideration to selecting one. This gives rise to the suggestion that commissioners charged with the duty of selecting both the grand jurors and petit jurors may need to have instructions from the court as to who are qualified. A misconception of the law might, under frequent circumstances, result in wastful litigation.
It is presented in these bills that about fourteen per cent of the poll taxes paid in Burleson County are by negroes, but there is nothing to show how many of these are qualified jurors. Neither is there any intimation in the record that any influence was exercised, that any device was used, or any particular precaution taken, to exclude negroes from jury service. The testimony which the appellant produces, in fact, affirmatively shows that the subject was not in the minds of the jury commissioners who, under the facts of this case, appear to have been wholly responsible for the jurors selected. Each one asserts that the subject was not discussed or considered by either of them; that they had no prejudice against jury service by negroes or any class of persons, and that their object and intentions were to follow the law as they understood it.
This question has been frequently before this court, and it has been considered by the Supreme Court of the United States in recent decisions, namely, Pierre v. Louisiana, 306 U. S. 354-362, 83 Law Ed. 757; Norris v. Alabama, 294 U. S. 587-599, 79 Law Ed. 1074. On such authorities, we have concluded that no discrimination is shown. Langrum v. State, 78 S. W. (2d) 973; Brown v. State, 94 S. W. (2d) 169; Mitchell v. State, 105 S. W. (2d) 246; Ryan v. State, 123 S. W. (2d) 659; Lugo v. State, 124 S. W. (2d) 344; Hamilton v. State, 135 S. W. (2d) 476.
*165The various bills of exception are overruled with the exception of Bill No. 6, which complains of the refusal to admit the testimony of Francis Potts to the effect that the deceased had come to his home at 5105 Eleventh Street, Houston, Texas, on Sunday night previous to the homicide and visited the appellant’s wife in her room from two o’clock in the morning and through the rest of the night. Appellant had testified that Jack Liston had given him information prior to the tragedy that the deceased had spent the Sunday night with appellant’s wife in Houston and this evidence from Francis Potts was for the purpose of corroborating the appellant in such statement. Subsequent to the trial of this case, the exact question was before this court in Stewart v. State, 135 S. W. (2d) 103. The question was there raised under identical circumstances to those before us. The evidence was held to be admissible. For the reasons there stated, we think that appellant’s Bill of Exception No. 6 should be sustained. Accordingly, this case is reversed and remanded for a new trial.