John Heilman and appellant P. M. Wilson were jointly indicted for the murder of John Scott. At the April term of the district court of Bandera county Wilson was tried and convicted of murder in the second degree, his punishment being assessed at confinement in the penitentiary for eight years.
The wife and sister of Scott, the deceased, were some sixty yards from the place of the killing, and not in a very favorable position to see just what occurred at the time. They saw, however, that Scott seemed to be talking to Heilman when Wilson shot him from the rear in the back of the head. These witnesses were not in ear-shot of the parties, and could not hear what passed between them. Scott fell -when shot, and by his side a dirk hunting knife was found.
There was no other witness to the homicide except Heilman. The indictment, as against him, we suppose, was nolle 2^'ossed, for he was introduced as a witness for defendant, and testified, in substance, that he was in the field at work and heard talking, went to the parties, and just after getting to them Scott ran his hand under his coat, and Wilson put his hand in his pocket and told Scott to stop. Scott took his hand from under his coat, and Wilson took his hand out of his pocket. The parties then commenced to quarrel again, and Scott ran his hand under his coat again, and Wilson ran his hand into his pocket again. The witness turned his head away, and immediately the pistol fired. Heilman was about fifteen or twenty feet from the parties. Scott fell towards Wilson, and while falling Wilson struck him with his pistol. Scott weighed about one hundred and seventy pounds, and Wilson about one hundred and thirty.
Defendant proved threats by Scott to kill him, etc., which were communicated to him. Upon this phase of the case the court charged the jury as follows: “And you are further instructed that you will not consider the testimony of such threats as the witness stated were not communicated to Wilson, and the questions for you to determine are these: Did Scott seriously make a threat to take Wilson’s life. 2d. Was such threat communicated to Wilson before the killing; and 3d, was Scott at the time of the killing manifesting by some act then done an intention to execute the threats. If you are satisfied of these facts you will acquit.”
How, whether the threats were seriously made or not has nothing whatever to do with defendant’s right to act under them if some act was done, viewed in the light of the threats, which rendered it reasonable for defendant to infer that Scott was about to execute *585his threats. This proposition is correct unless Wilson knew that the threats were not seriously made. There is no evidence that the witnesses who informed him of the threats also informed him that they were not made seriously, and the natural presumption would be that they were seriously made. This would arise from the nature of the threats themselves, and the further fact that his neighbors thought it prudent that he should be aware of them.
Appellant moved that the cause be continued for the want of the testimony of several witnesses by whom he states that he can prove other threats made by Scott to take his life, and that they were communicated to him before the homicide. This was his first application. There is no question as to diligence. The court denied the motion and he excepted.
The reason assigned by the learned judge below for refusing the application was that the evidence is cumulative. This reason can never apply to the first application for a continuance. The defendant has the right to prove a material fact by any number of witnesses, within the bounds of reason. And again, these threats were not made at the same time and place, and in the presence of the same persons. We think a new trial should have been granted because this evidence was material and probably true.
Pending the trial, and after the case had been submitted to the jury, it appears from the record that a dramatic performance came off in the town of Bandera; that it was agreed by defendant that a certain juror should attend and take part as an actor in this performance; and that said juror did, in pursuance of this agreement, leave the panel for one or one and a half hours; that no person, as is sworn to by the juror, spoke to him of the case. Counsel for the defendant consented to this matter upon the express agreement that the sheriff should accompany the juror, which was not done.
Appellant brought this matter forward in his motion for a new trial, and now insists that the court should have granted his motion because of the same. It will be borne in mind that the defendant consented to this separation upon the express condition that the sheriff should attend the juror. This being the case, and this part of the agreement being violated by the sheriff, this separation will be treated as without the consent of the defendant, and, viewing it in that light, we have no hesitation, in view of the authoriti es, in holding that it was such irregularity as will vitiate the verdict. (See these authorities: Code Crim. Proc., arts. 687 and 689; Early v. The State, 1 Texas Ct. App., 248; Wright v. The State, 17 Texas Ct. App., 152; Jones v. The State, 68 Mich., 760; Connor v. Worms*586ley, 8 Gratt. (Va.), 712; Duval v. The State, 56 Ga., 653; Wood v. The State, 34 Ark., 311; 40 Ala., 454.)
For the errors above indicated the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 24, 1885.]