Ho error is seen in the action of of the court in standing aside several of the talesmen who, in answer to the interrogatory whether, from hearsay or otherwise, there was established in their minds such a conclusion of the *584guilt or innocence of the defendant as would influence them in finding a verdict, and to which each of the jurymen replied, “ I have.” The statute expressly declares that “if he (the juror) answer (this question) in the affirmative, he shall be discharged.” (Code Crim. Proc., Art. 636, subdiv. 13.) It is only when he answers it in the negative that he is required to be further examined as to how his conclusion was formed, and the extent to which it will affect his action. (Id.)
We are not prepared to say that the cross-examination of the witness Cook with regard to the relations subsisting between Mrs. Wiseman and the defendant was either irrelevant or illegal, when considered in connection with the other' evidence. Mrs. Wiseman was at the deceased’s house; the defendant went there to see her; they had an interview outside of the house; she was crying, and said that she was afraid the defendant would kill her husband. The defendant said that he thought “her husband, Henry Wiseman, had imposed upon her long enough.” The deceased took offense at this, and some sharp words ensued between the parties, and the deceased asked the defendant to leave his house. Inasmuch, then, as the difficulty originated on account of the trouble between Wiseman and his wife, the defendant’s interest in, and connection with, the matter, it seems, might be proper in shedding light upon the motives which induced his conduct and actions on the night of the homicide.
In support of the motion for a new trial, the defendant produced the affidavit of one of the jurors as to what was the construction placed by the jury upon the charge of the court. Such affidavit was inadmissible for any purpose. A verdict cannot be impeached in that manner. “That the jury misunderstood the charge of the court, and were thereby misled in finding their verdict, is not recognized by the Code as cause for new trial. Ho case has yet occurred in this State wherein the courts have tolerated affidavits of jurors made to impeach their verdicts. If ever admissible, they can only be allowed in an extreme case, and under an imperative necessity for the accomplishment of justice.” (Johnson v. The State, 27 Texas, 759.) In Davis v. The State, 43 Texas, 139, it was said: “Thére was no error in the refusal of the judge to permit, on the hearing of the defendant’s motion for new trial, several of the jurors to be sworn to prove their misconstruction of the charge of the court. The permitting such a practice would result in greater evils than those that might possibly be removed by such action; and in *585this case, when the life of the defendant was dependent upon their verdict, if any portion of the jury entertained any doubts as to the meaning of any part of the charge, the Code authorized, and it was certainly their duty to return to the court and obtain from the judge, such additional charge or explanation as the question required.”
As part of the thirteenth paragraph of the charge by the court, the jury were instructed, in connection with the law of self-defense, as follows, viz: “ But while the defendant had the legal right to protect himself from such actual or supposed attack without retreating, and to use all the force necessary for that purpose, even to the extent of slaying his adversary, and he may continue to use force until all danger, actual or apparent, has passed, he cannot use any more force than was necessary for that purpose, and should you believe beyond a reasonable doubt that the deceased did assault the defendant, but that he had abandoned said assault, and it reasonably appeared to the defendant that he had ceased all violence toward him, and that afterwards the defendant shot the deceased, he would be guilty of manslaughter.” We have italicized the objectionable portion of this instruction.
In our opinion the instruction was calculated to mislead, if in fact it did not mislead, the jury into the belief that they must first find or believe beyond a reasonable doubt that the deceased did assault the defendant, before they could find the defendant guilty of manslaughter. In other words, the charge reverses the rule which should govern the action of juries in criminal cases. It is not necessary that they should believe beyond a reasonable doubt any fact essential to the establishment of a defense or a lower grade of crime. On the contrary, if they have a reasonable doubt of the existence of the facts essential to establish guilt, or to establish the higher grade of offense, the defendant is entitled to the benefit of such doubt. The jury should never be required to apply the reasonable doubt to the existence or non-existence of a defense before they should give the defendant the benefit of such defense. The reasonable doubt should be applied to the facts or to the case as sought to be establishet by the State.
To make the case one of manslaughter, under the supposed state of facts upon which the court was charging, the jury might have entertained a belief that deceased assaulted defendant, and yet that belief not be beyond a reasonable doubt. If *586they did believe it, or if they had a reasonable doubt about it, in either event the defendant should have had the benefit of it to the extent to which they either believed or doubted the fact.
Because of this error in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 25, 1884.