Habel v. State

White, Presiding Judge.

Appellant was convicted in the lower court of manslaughter, and given two years in the penitentiary.

Appellant was indicted and put upon his trial for murder. The record sufficiently shows that the court ordered the summoning of the special venire out of which the jury was to be selected for the trial of the case, and the objection to the transcript in that particular based upon the rulings in Steagald's case, 22 Texas Court of Appeals, 486, is not maintainable.

As to other objections to the special venires for talesmen, it is first-urgently insisted that the same should have been quashed because the court declined and refused to administer to the sheriff and each of his deputies the oath prescribed by article 3056 of the Revised Statutes before they executed said writs. That statute reads: “Whenever it may be necessary to summon jurors who have not been selected by jury commissioners under the provisions of this title, the court shall administer to the sheriff and each of his deputies the following oath: You do solemnly swear that you will, to the best of your skill and ability, and without bias or favor toward any party, summon such jurors as may be ordered by the court; that you will select none but impartial, sensible, and sober men, having the qualifications of jurors under the law; that you will not, directly or indirectly, converse or communicate with any juryman touching any case pending for trial; and that you will not by any means attempt to influence, advise, or control any juryman in his opinion in any case which may be tried by him, so help you God. ’ ” This statute has been held applicable in criminal as well as in civil cases. Wyers v. The State, 22 Texas Ct. App., 258.

When this statute was originally passed it expressly provided in terms that the oath should be administered “ at the commencement of each term of the court at which jury cases may be tried.” Hicks v. The State, 5 Texas Ct. App., 488. In the revision, as shown in article 3056, supra, it is not stated in terms at what particular time the oath should be administered, but we think it is apparent from the language used that if it has once been administered that will suffice thereafter at the same term for the summoning of all “such jurors as maybe ordered by the court,” and that it is not necessary to have the oath repeated every time new or additional talesmen are be summoned. In explaining the bills of exception on this point the learned trial judge states that the said oath was duly administered to the sheriff and deputies on the first day that the criminal docket was taken up, and that none but the officers so qualified took part in summoning the talesman in this case. He also certifies that in each instance before the said talesmen were summoned he cautioned the sheriff as to his duty in summoning them, as provided shall be done by article 615 of the Code of Criminal Procedure. This was the necessary and proper-practice. Defendant’s objections to the action of the court in this matter are without merit.

Perhaps we should have first noticed the defendant’s objections to the issuance of venires for talesmen until certain of the original veniremen who had been summoned, and who were absent, had been attached and brought into court to be passed upon. He also asked a postponement of the trial until this could be done. Attachments were promptly issued for these absentees as soon as demanded, but a defendant can not unreasonably delay the trial on account of the absence of such summoned jurors. Code Crim. Proc., art. 640. The questions here raised were fully discussed in Hudson’s case, ante, 333. Ho error is made to appear in relation to this matter.

Many objections are made and criticisms indulged in with regard to the charge of the court.

In so far as murder of the first or the second degree is concerned, all such questions are eliminated by the fact that defendant has been convicted of manslaughter and not murder. As to manslaughter, the charge embraced all the statutory rules with regard to that crime. Had defendant not been found guilty of manslaughter the charge might have been held insufficient as not pertinently applying the law of that grade of crime to the particular facts of the case, and defendant, in a special requested instruction which was refused, attempted to call the attention of the court to the omission. The instruction was not itself the law, but was sufficient to call the attention of the court to the necessity of an instruction directly applicable to the facts. An instruction was given by the court with regard to mutual combat entered into where death or serious bodily injury likely to result in death might ensue, and properly instructed the jury that in such state of case self-defense would not apply. King v. The State, 4 Texas Ct. App., 54; Crist v. The State, 21 Texas Ct. App., 361; Thumm v. The State, 24 Texas Ct. App., 667; Williams v. The State, 25 Texas Ct. App., 816; Willson’s Crim. Stats., sec. 982. But the court did not instruct as to what the law would be if defendant went out to engage in a fisticuff with deceased, and with no intention of having a deadly contest or using a deadly weapon, and that his deadly weapon was only used after deceased was apparently about using a deadly weapon upon him. The facts perhaps called for some such instruction. But in such case the defendant’s right of self-defense would not have been, as is insisted by counsel, a perfect one and entirely justifiable in law, but would have been imperfect to the extent of the gravity of the offense which he intended to commit originally. He went out to engage in an affray, which is a misdemeanor. Penal Code, art. 313. “A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong, if he was himself violating or in the act of violating the law, and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong.” Reed v. The State, 11 Texas Ct. App., 509; Willson’s Crim. Stats., sec. 988. If the original wrong of defendant was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defense from an assault made upon him, would be manslaughter if committed under the immediate influence of sudden passion arising from an adequate cause, such for instance as anger, rage, terror, or resentmeht. Spearman v. The State, 23 Texas Ct. App., 224.

The court did not err in refusing defendant’s second special requested instruction on this subject, because it did not state correctly the law applicable to the facts; and whilst the court omitted to charge at all on that phase of the case, the error was harmless, because defendant was found guilty of manslaughter, and that would have been the finding under the charge had it have been given correctly and' adopted as the basis of the verdict.

A bill of exceptions was taken to the following language used by the county attorney in his closing argument to the jury: “Gentlemen of "the jury, I tell you as an honest man and citizen, that it is my candid and honest belief that this defendant is guilty of murder of the first degree, and you ought to find him guilty as such.” Defendant did not request the court in writing to instruct the jury that they should not be influenced by the attorney’s individual opinion as to the defendant’s guilt. This should have been done, and if the court had then refused to give such instruction the question would then have been properly presented for adjudication. “ While it is true that authors treating upon the subject say that counsel either for or against the prisoner should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment on account of a violation of this rule.” Young v. The State, 19 Texas Ct. App., 536; Kennedy v. The State, Id., 618. There are, however, recent instances where the mode and manner of expressing such an opinion on the part of prosecuting officers has been held sufficient ground for reversing a judgment of conviction. The People v. Quick, Mich. Sup. Ct. (reported in full in 7 Crim. Law Mag., p. 81). “The impropriety of expressing a personal opinion to the jury upon disputed facts has always been regarded as great, and has in some notable instances led to unpleasant strictures on the character of celebrated counsel.” Id.

Defendant testified as a witness in his own behalf. The county attorney commented upon his testimony, which he had the right to do as in the case of any other witness; but he also indulged in some very harsh reflections as to the credibility of those defendants who would testify in their own cases, and warned the jury that “so long as defendants are to be believed when testifying in their own behalf no man will ever be convicted in this State.” This language was excepted to and special instructions were asked in regard to how the testimony of a defendant in his own behalf should be considered, which were refused. The court, however, charged the jury: “You are by law made the exclusive judges of the credibility of all the witnesses before you in this case, and of the weight jou should give to their testimony, and after, you have considered all the evidence before you, if you have in your minds a reasonable doubt as to the guilt of this defendant, you should acquit him.”

“We are not disposed to reverse judgments for merely indiscreet ebullitions of counsel which may be allowed for and are neutralized by the effect •of the charge.” In this instance the charge of the court, we think, fully neutralized whatever unwarranted expression of opinion the prosecuting officer had indulged in, and we can not think that such idle declamation could or would have the same weight with the jury as the charge of the court. Defendant’s special requested instruction was obnoxious to the objection that it was a charge upon the weight of evidence, and it was properly refused.

We have considered all the material questions in the case, and having found no reversible error, the judgment is affirmed.

Affirmed.

Hurt, J., absent.