The appellant was convicted of murder in the second degree, and given five years in the penitentiary. He prosecuted an appeal, and the case was affirmed at the Tyler term of this court, and it now comes before us on motion for a rehearing. Counsel for appellant has filed an able brief, presenting a number of questions, and insisting that in the affirmance of the case this court committed several errors, and urging upon us a careful review of the same in order that correct conclusions may be reached. He has also presented the same matters in a clear and forcible argument before this court. Aided by his lucid exposition of the matters involved in the case, we have again gone over it, and in the light of the argument and authorities cited have reconsidered all of the assignments, but we will content ourselves with presenting and discussing only such as are necessary to a proper disposition of the case, and such as are likely to occur again on another trial. The appellant again urges that this court erred in holding that the lower court acted properly in overruling the motion for a continuance and in refusing a new trial based on the action of the court in overruling said motion. The motion for continuance was based on the absence of the following witnesses: McNeal, Harvey, King and Johnnie Williams, all residents of Fort Bend County; and of Bland, Mayfield Williams, and Chancery, all residents of Harris County. We will first consider the question of diligence as to these witnesses. The indictment was returned into court on the 27th of September. Subpœnas were not issued for the witnesses who lived in Fort Bend County until the 1st of October, and were made returnable on the 9th. The case was set down for trial on the 9th of October. The subpœna was served on Williams, but was returned as to McNeal, Harvey, and King, "Not found." No reason is shown in the application why process for these witnesses was not issued earlier. For aught that appears, if the subpœna had been issued at the earliest moment when appellant could have sued out process, these three witnesses could have been found and served. On the 30th day of September an attachment was issued to Harris County for Steve Bland and Mayfield Williams, and on October 2nd an attachment was issued for Chancery, also to Harris County. The application shows that the process for these three witnesses was not placed in the hands of the officer of Harris County until October 2nd. The application *Page 306 shows no reason why process was not sued out earlier for these witnesses, and certainly it should have been shown why the attachment was not issued for Chancery on the 30th of September; and some excuse should have been shown why the attachment to Harris County for Bland and Mayfield Williams was not delivered to the officer until October 2nd. For aught that appears, this process could all have been issued earlier, and have been delivered to the sheriff of Harris County two or three days before it was, and might have been served upon said witnesses, and their attendance secured. In our opinion, there was a lack of diligence as to all the witnesses, both those residing in Fort Bend County and those alleged to live in Harris County. But it is insisted that, although due diligence may not have been used to procure the attendance of these witnesses, if on the motion for a new trial it appears that the testimony of the said absent witnesses is material, and probably true, a new trial should have been granted; and this appears to be the rule in accordance with the authorities in this State. See, Willson's Crim. Stat., § 2186, and authorities there cited. The State's case mainly rested upon the testimony of Sophia Hunter and Annie Collins, in connection with the testimony of Kane Neal, an accomplice; the first two of whom testified that on the night of the shooting they were present, and saw it, and that the defendant, and not Kane Neal, did the shooting. This was a material issue in the case. The defendant introduced three witnesses who testified that they were in view when the shooting occurred, and that it was the taller man of the two who did the shooting. The evidence showed that Kane Neal was much taller than the appellant. Appellant himself testified that Kane Neal did the shooting. Appellant proposed to prove by Bland and Mayfield Williams that they saw the shooting; that Kane Neal did it, and not the defendant. By the witness, McNeal, that he heard the fatal shot, and at the time he saw Sophie Hunter, and she was in such position that she could not have seen it. By King and Harvey that they heard the shot, and at the same time Annie Collins was in their view, and that she could not have seen it. By Johnnie Williams that both Hunter and Collins were mad with the defendant, and he had heard them say they were going to swear against him to get even with him. This witness was served, but was not present. All of this testimony appears to be material — that is, upon a vital issue in the case — and it is in direct conflict with the State's theory and the evidence produced by the State on the subject; and the rule in this regard is, there must not only be such a conflict, but the inculpatory facts should be so strong and convincing as to render the truth of the facts set forth in the application improbable. See, McAdams v. State, 24 Tex.Crim. App., 86. Under the circumstances of this case, we cannot say that the truth of the facts set forth in the application is improbable. But before we leave this branch of the case we would make some further observations on the question of diligence. The record shows that before the argument began the witness, Chancery, was brought into court. Appellant was apprised of the *Page 307 fact, for his counsel manifested some anxiety to have the account of the witness approved, so he could return to his home. Appellant made no effort to introduce this witness, and according to the application for continuance this witness saw the shooting, and would have testified that Kane Neal did it, and not the defendant. Appellant attempts to excuse himself on the ground that the court stated, when the testimony was closed, that he would hear no more testimony, except on some unforeseen contingency. This announcement was no excuse for the failure to tender the witness. Counsel should have proposed to place him on the stand, and, if the court refused to admit his testimony, he should then have reserved his bill of exceptions. It will be further observed that, although the trial in this case lasted four or five days, no effort was made to procure the attendance of any of the absent witnesses after the trial began. For aught that appears, by the use of reasonable diligence they could have been obtained in time to have testified in the case. Counsel, however, insist that on the overruling of his motion for a continuance he was not able to do any more in the way of diligence, and, no matter if said witnesses were accessible, and could have been produced, that upon the overruling of his motion for a continuance the case was, as to that matter, in statu quo, and this court could not look beyond the time of the overruling of the application for a continuance, as to the question of diligence. The statute places it in the discretion of the court to overrule a motion for a continuance, and then to re-examine the question on motion for a new trial, and to refuse a new trial, unless it should appear that the absent testimony was material, and probably true. And we hold that it is perfectly competent for the court to look to the action of the appellant and his counsel after the overruling of a motion for continuance, in passing upon the materiality or probable truth of the absent testimony. Suppose, in a trial of this character, counsel were informed by the court that the witness was in town, and could be had, and counsel should decline to ask for process to bring the witness before the court, or suppose that afterwards (as in the case of the witness, Chancery,) he should actually come into court, and appellant should decline to use him, would not the court be compelled to hold in such case that appellant was trifling with the court, that the witness would not swear what was alleged, or else appellant did not regard the testimony as probably true? Such occurs to us to be the inevitable conclusion. And thus considering the action of the appellant with reference to these witnesess, we would hesitate to accord a new hearing upon this ground.
Appellant objects to the charge of the court defining the extent of Mitchell's responsibility for the act of Neal, which charge is predicated upon the theory that Neal actually fired the fatal shot. The charge of the court on this subject is as follows: "All persons are principals who are guilty of acting together in the commission of an offense, having a common purpose or agreement to commit such offense. If an offense is committed by one person, and others are present, and, knowing the intent of such person to commit such offense, aid him by acts, or encourage *Page 308 him by words or gestures in the commission of such offense, all persons so present and aiding and encouraging or assisting, are principal offenders, and may be prosecuted as such. You are instructed, that if the defendant and Kane Neal agreed together to commit an assault and battery upon the deceased, or, in the language of the witnesses, to give him a beating, and went to the place where deceased was for that purpose, and did commit an assault and battery upon deceased, and that deceased escaped from them and ran, and the defendant and Kane Neal pursued him, acting together and of common purpose in such pursuit, to overtake the deceased and to give him a beating; and if, while the defendant and said Neal were so engaged in such pursuit, the said Neal drew his pistol, and intentionally shot and killed deceased, and that such act of shooting and killing by Neal was the natural and reasonable result to be arrived at from all of the evidence in the case, of the agreement or common purpose aforesaid between defendant and Neal to give the deceased a beating, or was such an act as might be reasonably anticipated by the defendant as likely or probable to happen in the accomplishment of such purpose aforesaid — then, and in such case, the defendant would be guilty of murder in the second degree. If, however, all the facts existed, as detailed in the foregoing paragraph of this charge, as to the agreement or purpose between the defendant and Neal to give the deceased a beating, or to commit an assault and battery upon him, and if such agreement or purpose on the part of defendant did not contemplate or embrace the killing of deceased, or the infliction upon him of serious bodily injury, which might reasonably result in his death; and if, while engaged in such pursuit of deceased by defendant and said Neal, the said Neal drew his pistol, and intentionally shot and killed deceased; and if, further, such shooting and killing by Neal did not result reasonably, naturally and probably from the agreement and purpose aforesaid, to give the deceased a beating, and was not reasonably to be anticipated by Mitchell as the likely, probable, and reasonable result which would occur in the accomplishment of such purpose; and, further, if the defendant did not in any way aid, assist, or encourage said Neal in such act of shooting, knowing his intent to shoot — then, in such case the defendant would not be guilty of any offense, and should be acquitted. If the death of deceased was caused by a shot fired from a pistol in the hands of said Kane Neal, and if such shot was fired accidentally — that is, if the said Neal struck, or struck at the defendant with the pistol, and the pistol was accidentally and without intention on the part of Neal discharged — causing the death of deceased, defendant would not be guilty of any offense, and should be acquitted. Now, therefore, applying the law as herein given you to the facts in evidence, you are instructed that if you are satisfied by the evidence, beyond a reasonable doubt, that the defendant and Kane Neal sought the deceased for the purpose of committing an assault and battery upon the deceased, both agreeing and concurring in such common purpose, and that they together pursued the deceased for such purpose, and that while so pursuing the deceased the said Kane *Page 309 Neal drew his pistol, and intentionally shot and killed deceased; and if you further so find that such act of shooting and killing deceased by Neal was the reasonable and probable result of the purpose and agreement aforesaid on the part of defendant and Neal to give the deceased a beating, and was to be reasonably anticipated by defendant as likely and probable to result in the accomplishment of such purpose to assault the deceased, but was not participated in by defendant further than as it might be such probable and reasonable result of such purpose; and if you further find that this occurred in Fort Bend County, Texas, and at the time charged, then in such case you will find the defendant guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any term not less than five years. If you find that the shot was fired by the accidental and unintentional discharge of the pistol in the hands of Neal, as herein indicated, or if you have a reasonable doubt on this point, you will acquit the defendant." Appellant insists that the facts of this case do not warrant such a charge, and that the most that can be said is, that the appellant combined with Neal to inflict on the deceased an assault and battery merely, and that the charge in question should not have been given, and, if given, certainly a clean-cut charge, predicated upon the agreement to inflict a mere assault and battery on the deceased should have been given. Appellant insists that the language used by this court in the former opinion on this subject is not the law. Said language is as follows: "If Neal and this appellant agreed and combined to do an unlawful act, such as to beat the deceased, and the deceased was killed by Neal in an attempt to execute the common purpose, the appellant would be guilty of murder, and nothing less, though he had not contemplated the death of the deceased." In this connection, appellant cites us to Blain v. State, 30 Tex.Crim. App., 703, and quotes therefrom as follows: "If two persons combine to assault another with their fists, and one resorts to a deadly weapon and kills, without the other's knowledge or consent, would both be guilty of homicide? would both be guilty of murder? By no means." He also cites us to Stevenson v. State, 17 Tex.Crim. App., 618; Woodworth v. State, 20 Tex.Crim. App., 380; Mercersmith v. State, 8 Tex.Crim. App., 212; Welsh v. State, 3 Tex.Crim. App., 420. These authorities support the contention of the appellant. This question of joint intent in the commission of offenses has frequently been before this court, but inasmuch as perhaps the precise question which the record seems to raise in this case has not been previously decided, we will examine and discuss the authorities on the subject. In Guffee v. State, 8 Tex.Crim. App., 187, it is held: "If one, knowing the unlawful intent of another, joins him in the commission of an offense, both are principal offenders. If one, finding another engaged in an affray, comes to his aid, and takes part in the conflict, his amenability to the law is dependent upon his own acts and intent, and not upon the intent of the other, who, without his knowledge, engaged in or prosecuted the difficulty." To the same effect, see, Foster v. State, 8 Tex.Crim. App., 248, and Snell v. State, 29 Tex.Crim. App., 236. *Page 310 Mr. Roscoe says, "Although the criminal intent of a single person, who, without the knowledge or assent of his companions, is guilty of homicide, will not involve them in his guilt, yet it is otherwise where all the parties proceed with the intention to do an unlawful act, and with the resolution at the same time to overcome all opposition by force; for if, in pursuance of such resolution, one of the party be guilty of homicide, his companions will be liable to the penalty which he has incurred." See, Rosc. Crim. Ev., p. 713, citing, Fost. Crown Law, 352, and Hawk, P. C., book 2, Chap. 29, § 8. We quote Mr. Bishop on this subject as follows: "Whenever one without legal excuse or palliation does what is directly and immediately dangerous to life, any homicide which results therefrom, whether intended or not, is deemed by the law to have proceeded from malice aforethought, and is murder, not manslaughter." See, 2 Bishop's New Crim. Law, § 679. "Ordinarily, when one without legal excuse so uses a deadly weapon that the death of a human being results therefrom, the law, either conclusively or as a violent presumption of fact, infers malice aforethought, and adjudges the act to be murder." Id., § 680. "Where the intent was commit only a trespass or a misdemeanor, an accidental killing would be only manslaughter." Id., § 682; citing, State v. Smith, 2 Strob., 77. Mr. Bishop appears to draw a distinction between chastisment or beating where one has the right to inflict punishment and where one has not. " 'Wherever,' says Hawkins, speaking of cases other than parents and the like, 'a person in cool blood, by way of revenge, unlawfully and deliberately beats another in such a manner that he afterwards dies thereof, he is guilty of murder, however unwilling he might have been to have gone so far;' because here, the reader perceives, there is no right of correction, even with a proper instrument. Yet this doctrine of Hawkins is stated a little too broadly, for if the beating, however wrongful, was neither with a deadly weapon, nor carried to a degree evidently dangerous, and there was no intent to kill, but unfortunately death followed, the offense would be only manslaughter." 2 Bishop's New Crim. Law, § 690, Subdiv. 2. "One unintentionally taking life in committing a mere criminal misdemeanor of a sort dangerous to life, so that the element of danger concurs with the unlawfulness of the act, commits murder." Id., § 691. "Hawkins says, 'If a man happen to kill another in the execution of a malicious and deliberate purpose to do him a personal hurt, by wounding or beating him, or in the willful commission of any unlawful act which necessarily tends to raise tumults and quarrels, and consequently cannot but be attended with the danger of personal hurt to some one or other, * * * he shall be guilty of murder.' " Id., § 691, Subdiv. 4. "Where the misdemeanor intended and act done to perpetrate it are of a sort not thus directly dangerous to life, if accidentally a homicide results therefrom it is manslaughter." Id., § 692. "If several conspire to invade a man's household, and go to it, armed with deadly weapons, to attack and beat him, whereupon one gets into difficulty with him and kills him, the rest are guilty also of murder, though they did not mean it." 1 Bishop's New *Page 311 Crim. Law, § 633, Subdiv. 5; citing, Williams v. State,81 Ala. 1; 1 So. 179. "Where two combine to fight a third with fists, if death accidentally results from a blow inflicted by one, the other also is answerable for the homicide. But if the one resorts to a deadly weapon without the other's knowledge or consent, he only is thus liable." 1 Bishop's New Crim. Law, § 637, Subdiv. 5. Mr. Bishop deduces the following rules on the subject: "The rules to determine responsibility are, in reason, and fairly well deducible from the modern authorities, substantially as follows. One is responsible for what of wrong flows directly from his corrupt intentions, but not, though intending wrong, for the product of another's independent act. If he set in motion the physical power of another, he is liable for its result. If he contemplated the result, he is answerable though it is produced in a manner he did not contemplate. If he did not intend it in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into active and indiscriminate power, he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what he might have foreseen would be the understanding, he is responsible. But if the wrong done was a fresh and independent product of the mind of the doer, the other is not criminal therein merely because, when it was done, he meant to be a partaker with the doer in a different wrong." Id., § 641. It follows, then, if the authorities cited enunciated the correct doctrine on this subject, that if the defendant and Kane Neal combined together to whip or beat the deceased, and to do so at all hazards, and, if necessary to that end, to take his life, in case he resisted it or fled from it, that one would be responsible for the act of the other. If, in such case, they came upon him, and he resisted being beaten, and, in order to accomplish their common purpose, they either killed him with a picket or a pistol, it would be murder. If he fled from them to avoid being whipped, and they killed him with a picket or a pistol in his flight, it would be murder — that is, if the picket was in its nature, as used, a dangerous and deadly weapon, and what was done with it or with the pistol was directly and immediately dangerous to the life of the deceased; and so, if he submitted, and they beat him with a picket or a pistol, in a manner directly and immediately dangerous to his life, and death resulted, both would have been guilty of murder — that is, if the parties in their joint agreement contemplated the result, the defendant would be answerable, though it was produced in a manner he did not contemplate. If he did not intend it in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into action an indiscriminate power, he is responsible. If, on the other hand, no more was contemplated than a mere misdemeanor, as an assault and battery with the hands and fists, not dangerous to life, and one of the parties, besides the intention of the other, drew a deadly weapon, and stabbed or shot the deceased, then such other is not liable for murder; and such was the idea intended to be conveyed by the language used in the former *Page 312 opinion of this court. As to the intention of the parties on this subject, we refer to the testimony of the witnesses. Sophia Hunter states in substance, that Lucy and Frank Williams, deceased, were having an altercation in the street, and defendant, Mitchell, came by, and asked what was the matter, and was told that Frank was drunk, and Lucy wanted to tear his clothes off of him, and beat him in the face, and witness was not going to see it done. Defendant told her to turn Lucy loose, and if witness did not he would put her in jail. Frank was cursing. Defendant told him if he did not hush he would have him arrested. It then appears that they went into one Mrs. Longtine's store, and that the row continued between Frank and Lucy. Defendant told Frank to quit cursing. He replied, "I am not bothering you or nobody else. If you want to shoot me you can do it." Defendant left; told deceased to wait until he came back. Witness then hurried the deceased to one Granny Mary's house near by, and shut the door. As she came out she met the defendant and Kane Neal. Defendant asked where Frank was. Witness told him she did not know; that he was not there. He told her to go back and open the door, and witness refused. Then he went to the door, and called Granny Mary, and said if she did not open the door he would shoot it down, and then broke the door open. He called to Frank to come out of there. Frank jumped out of the window. Kane Neal said, as Frank ran around the back part of the house, "Where is the son-of-a-bitch?" Frank ran to the back of the fence, and tried to get over, when Neal ran there, and hit him with the picket, and defendant also ran there and hit him with a picket. They hit two or three licks with pickets, and he got loose from them, and ran out of the gate, to where witness was, and said, "The white folks are trying to kill me." He said he didn't know what to do; that he was drunk. Witness told him to go to Mr. Darst. After Frank started to run, defendant asked Kane for his gun, and said, "I allowed to beat the son-of-a-bitch, but I can't catch him, so I will kill him," and just as Frank turned the corner defendant shot him. To the same effect is the testimony of Annie Collins. Maggie Longtine testified as to what occurred at her house. She said that Frank was cursing in the house; that he did nothing to Mitchell, but said, "All that you can do is shoot me." Mitchell said he knew what he could do, and went out. Sophia Hunter then took Frank away. Mitchell testified in his own behalf: That he came to Frank and Lucy in the street, who were in a row. He told them that if they did not quit cursing and fighting they would be put in jail. "I passed, and went on up the street, and they ran up the street and into Mrs. Longtine's store." That he (defendant) then went in there. They were still rowing, and Frank was cursing; and witness told him that he must quit cursing in the white lady's house, and get out of there. Deceased said: "What is it to you, you damned white son-of-a-bitch? You put me out." Witness said, "I will put you out, and teach you a lesson." "I did not feel like taking my hands to him, and I went to Mr. Austin's saloon, a *Page 313 few doors west on Railroad street, to borrow a pistol. I told Mr. Austin what I wanted, and what I wanted to do; that I wanted to put the negro out of the lady's house; and he said he didn't have a pistol; and Kane Neal, who was sitting there, and heard me ask for the pistol, got up, and asked me what was the matter. I asked him if he had a gun. He said, 'No.' He asked me what I wanted with it. I told him a negro was drunk and cursing in a white lady's house, and I wanted to put him out, and give him a beating, to teach him how to behave himself. He said he would go with me, and we would put him out; and I told him to see that the negroes didn't double team on me, and I would throw him out of the house, and give him a good whipping. I intended to give him a good beating for his insolence. As we went from Mrs. Longtine's toward Granny Mary's, I broke a piece of a picket — a piece of a pine board — off of the fence, and carried it in my hand. We both went into the yard. I went to the door, and told Granny to open the door, and she said: 'Shove it open. It ain't locked.' I shoved it open, and it was not even locked. The light blew out. I told Granny to light the lamp, and she lit it with a match. Neal went to the window near the door on the same side the gate is on when we went into the yard, and looked into the room. I was standing with one foot on the step and the other on the ground. Neal called that Frank was getting out of the window, and he (Neal) ran out of the gate, and around to the rear of the yard on the outside. I went out of the gate and started around there, too, but I heard Neal say to deceased, 'Don't you try to get over here.' When the negro ran to the gate and ran out, Neal hollered to me to look out; he was coming. I struck at him with the piece of picket as he ran out. Neal had also run around towards the gate. He was on the outside of the back yard, and he ran past me after Frank, and I followed right after him. The negro ran on towards the corner, with Neal a little ways behind him, and I was behind Neal. Neal had told me he did not have a gun, and I did not know he had one until I saw him strike at the negro with it, just before he got to the corner. He kept the gun out of my sight, and, as he was ahead of me, I did not see him, when he got it out. Frank got further ahead when Neal struck at him, and he turned the corner ahead; and when he turned he seemed to hit the bench on Third street. Neal could out-ran me. Frank turned the corner into Third street, and just as he struck the bench was faced towards the railroad. Then Neal turned after him, and then I turned just behind Neal about two steps. Frank and Neal were both out at the outside edge of the sidewalk, and I was in next to the house. Just as I got about to where the steps are, and about two steps around the corner — I was still about two steps to the rear and left of Neal — Neal overtook Frank, who was in a stooping posture. Neal was right over and against Frank, and he struck at him again with the pistol, when it went off, and Neal turned around, and instantly said, 'I believe I have played hell.' I turned, too, and went with him, and asked 'Why?' and he said, 'I believe I have shot that negro.' " And they went off. Neal, who *Page 314 was introduced by the State, testified substantially to the same facts from the time when the defendant came to him that the defendant testified to, except as to the circumstances attending the shooting. He stated that the defendant, while they were in Mud Alley, ran by him, and grabbed his pistol from under his vest, and raised the pistol as if to strike, and it fired.
In our opinion, the circumstances here related, coming both from the State's witnesses and echoed by the defendant, indicate to our minds an ultimate purpose between the parties to inflict a severe beating upon the deceased at all hazards, and a beating, judged by the expressions of the defendant himself, of a dangerous character, and calculated to jeopardize the deceased's life, or to inflict upon him such serious bodily injury as might endanger his life. To use his own language, "He wouldn't take his hands to him;" I that he would teach him a lesson;" and he went immediately to get a pistol; and he declared his purpose to throw him out of the window, and give him a good beating; and on the way he pulled from the fence a picket, but its size and weight are not disclosed — evidently of such a kind as is commonly used for fencing, as it was pulled from a fence. Such an ordinary picket in the hands of an ordinary man, is calculated, when used as a weapon, to inflict serious bodily injury. And, moreover, the defendant himself relates that in the pursuit, and some little space before deceased was killed, he saw Kane Neal draw a pistol, and strike at the defendant, yet he makes no protestation against such use, but continues with him in the pursuit until the deceased is slain. In the face of this testimony of the defendant alone, to say nothing about the evidence given on the part of the State, the court was amply justified in giving the charge he did, and enunciated a correct rule of law. However, in addition to the charge given, the court should have presented a substantive charge to the effect that, if such was not the purpose and intent of the defendant, but defendant acted in the matter merely to inflict upon the deceased an ordinary assault and battery, which is a misdemeanor, and that Neal, besides the intent and purpose of the defendant, shot and killed the deceased intentionally, the defendant could not be convicted of a greater offense than assault and battery. The court should have further instructed the jury, if Neal, under such circumstances, struck at the deceased with his pistol, not with the intention of killing him, and he fired, and accidentally killed the deceased, under such circumstances the appellant only could be found guilty of assault and battery. The court, on this last-mentioned subject, instructed the jury in such event to acquit the defendant if the killing was the result of an accidental shooting by Neal. That the charge to acquit under such circumstances, is more liberal to defendant is not the question. It is not the law of the case, and the jury, under a proper charge, might have been willing to have convicted the defendant of assault and battery, whereas they may not have been willing to acquit him entirely. The rule is, that it is the duty of the court to give in charge every phase of the case which the evidence establishes, or tends to establish. "If there is any *Page 315 evidence tending, though slightly, to establish a defense, the defendant is entitled to a charge directly upon that point, no matter what view the court may entertain of the weight and value of the testimony." See, Scott v. State, 10 Tex.Crim. App., 113; Guffee v. State, 8 Tex.Crim. App., 187. The court also omitted to charge the jury if the defendant did the shooting and killing, and it may have been accidental, as to his liability, as there was some testimony tending to establish this phase, a charge presenting this subject to the jury should have been given in a charge presenting negligent homicide of the second degree.
In the former opinion of this court we held that the misconduct of the jury in receiving other evidence after they had retired to the jury room was sufficiently met by counter affidavits to show that the jury were not influenced thereby, and that consequently it afforded no ground for the reversal of the case. On motion for rehearing, our attention has been directly drawn to the character of counter affidavits, and it occurs to us from a close inspection of said affidavits that the rebutting affidavits do not meet and controvert the more essential features of the affidavits introduced by appellant. Moreover, from the argument made, we have had our attention more pointedly attracted to the statute authorizing new trials on this ground, and the construction thereof, and we are inclined to the opinion that the terms of said statute are mandatory; and, where the jury have received new evidence after they have retired to the jury room, especially of a material character, that the right to a new trial is mandatory. The affidavit of the juror, Fanning, shows that he was on the jury that tried the defendant in this case. He says that after the jury had retired to consider their verdict, on the first vote taken, eight of the twelve jurymen voted to acquit the defendant; that after that one of the jurors — the foreman, Hubbard — stated to the jury that the defendant had shot a man in the back while he was sitting down on a gallery filing a gin saw, and killed him, because the man was a witness about some cattle. He also stated that he had seen the defendant playing a game of cards, and he had held out cards and played them in. And also stated that Jim Mitchell, brother of the defendant, went to Houston, provided himself with a pistol, and pretended to be waiting at the Central depot for his brother, the defendant; and waited until a man that he knew was coming, with a child in his arms, and commenced shooting him. The man fell, and drew his pistol, and that there were two or three men killed and several others shot in the difficulty. And affiant further stated that Wade Robinson, who was on the jury, said to the jury that, "We know these boys" (meaning the Mitchell boys), "and Neal, and that they were not liable to have any accidental shooting." Foreman Hubbard and Robinson said to affiant that, as he was a stranger in the land, they were telling him these things. This was openly talked in the jury room. And to the same effect is the affidavit of the jurors, Hagan and Carroll. These two jurors further stated: "That Hubbard and Robinson stated that if the jury did not return a verdict they would be carried around four or five counties *Page 316 of the district by the judge. They further stated that eight of the jurors were influenced in finding the verdict of conviction by the statements made by said Hubbard and Robinson. The juror, W.T. Carroll, further stated that said Hubbard and Robinson stated to the jury that the defendant, A.H. Mitchell, and his brother, were bad men, and that the jury ought to convict the defendant on his bad character, saying to the other jurors that they did not know the had character of the defendant, as they — Hubbard and Robinson — did; that said Hubbard and Robinson used these statements to other jurors, who, until almost the last moment of their deliberations, had uniformly voted to acquit the defendant, A.H. Mitchell, of the charge of which they were trying him, as arguments for the conviction of the defendant." The record also contains the affidavit of the counsel for the appellant, which recites that when they accepted the jurors, Hubbard and Robinson, when they were examined on their voir dire examination, they each disclaimed bias or prejudice, or any conclusion as to the guilt or innocence of the accused, and each qualified himself as a competent juror to sit upon and try said case, and was accepted by appellant as such, before his peremptory challenges were exhausted. The State met these affidavits with counter affidavits. The jurors, Hubbard, Robinson, Winer, Hagan, Horton, Walker, Smith, Lones, and Kageler, being nine of the jurors, stated in their affidavit that they tried and decided the above case under the law as given by the court, as they understood it upon a careful reading of the charge and the evidence as adduced during the trial; that each and every one rendered his verdict in accordance with the law and evidence sworn to by the witnesses, and that they were not influenced or persuaded by any outside pressure whatever; and that, so far as their knowledge and belief went, no attempt was made by any juror to influence any juror in his verdict by anything outside of the law and the evidence in the case. The jurors, Hubbard and Robinson, also made an affidavit from which the following is extracted, to-wit: They say that they have read the affidavit of Carroll, one of the jurors, "and they say under oath that in that part of said affidavit where said Carroll uses the following words, to-wit: 'And that the defendant, A.H. Mitchell, and his brother were bad men, and that the jury ought to convict the defendant on account of his bad character, saying to the other jurors that they did not know the bad character of the defendant, as he — Hubbard and Robinson — did; that said Robinson and Hubbard used these statements to the other jurors, who, until almost the last moment of their deliberations, had uniformly voted to acquit the defendant, A.H. Mitchell, of the charge of which they were trying him, as arguments for the conviction of the said defendant, Mitchell.' The said Hubbard and Robinson say that said language made and sworn to by said W.T. Carroll in his affidavit made and filed in motion for a new trial is wholly untrue and false, and that they pronounce it a fabrication, and so testify under their oath that no such language was used by them, or either of them on the trial of said case." To the same effect is the affidavit of *Page 317 the jurors, Bob Smith, W.P. Winer, D.M. Walker, J.H. Lones, A.J. Horton, and F. Kageler; and also the juror, W.T. Carroll, made an affidavit in which he stated that he is now satisfied, and was at the time said verdict was rendered, and that he rendered his verdict according to the law and the evidence as he understood it. It will be noticed here that the affidavits attending to controvert the facts alleged in the motion, as made by the jurors, Hubbard and Robinson, corroborated by the jurors, Winer, Smith, Walker, Lones, Horton, and Kageler, do not attempt to controvert the affidavits of the jurors furnished by the appellant as to the facts stated in the affidavits of Fanning, Hagan, and Carroll, as above stated. They only propose to question the last affidavit of W.T. Carroll, above set out, in which said Carroll stated that the jurors, Hubbard and Robinson, stated to the jury that the defendant and his brothers were bad men, and that the jury ought to convict him on account of his bad character, stating to the other jurors that they did not know the bad character of the defendant as they — Hubbard and Robinson — did; and the affidavits even meeting this question are couched in the most general terms, and do not state that language of similar import was not used, but simply state that no such language was ever used by them, or either of them, on the trial of said case. It is highly probable that the exact language could not be stated in this regard, and to have entirely met the question the affidavit should have stated that neither the language nor any of similar import was used. But it will be observed that these affidavits do not gainsay or controvert the fact that after the jury had retired to the jury room, and after eight had voted for acquittal and only four for conviction, that during the discussion of the evidence and the charge the juror, Hubbard, who was foreman, and the juror, Robinson, stated to the jury that the defendant had shot a man in the back while he was sitting on a gallery filing a gin saw, and killed him, because he was a witness against him about some cattle, and that they had seen the defendant playing at a game of cards, and saw him holding out cards; and the further statement that the brother of the defendant had killed a number of men at Houston by taking an unfair advantage of them, and that they were not men liable to shoot a man by accident. These facts stand uncontradicted by the State. No effort is made to controvert them, and that they were testimony of a most material character seems to be evident. As the defendant testified in the case, if he had been indicted for a previous homicide, there might have been permitted to be shown, as bearing upon his credit, the fact of such previous indictment. But in such case it would have been the bounden duty of the court to limit the testimony to its specific purpose, but this testimony went to the jury without limitation, and went to the jury when the defendant had no opportunity to meet it or cross-examine the witnesses, or to bring rebutting testimony. Moreover, it was an issue in the case whether or not the shooting was accidental. These witnesses in the jury room, after reciting the facts, speak as to the character of the defendant and his brother, and Neal, as *Page 318 men who were not liable to do accidental shooting, and that they were bad men, and ought to be convicted on that account. This testimony, coming in this shape, at a time when the defendant had no opportunity to meet it, was calculated to have a powerful effect against him, and evidently it must have had, because for no other assigned reason the jury changed from a majority of eight in number for acquittal to an unanimous verdict for conviction. It is no answer to this proposition to say that nine or ten of the jury made affidavits that they found their verdict upon the law and the evidence, and that they were not influenced by any outside pressure. Such an affidavit is to be expected from jurors seeking to justify themselves for their own misconduct, and to escape a responsibility imposed upon them by their oaths, which an admission that they were otherwise influenced would entail. The jurors by such means cannot escape the impeachment that their verdict was tainted by this improper evidence. At least, the record here before us, when critically examined, fails to disclose or show any other reason for the change in the status of the jury on the question of the guilt or innocence of the defendant. In our opinion, for the reason that the jury received evidence after their retirement into the jury room, this case should be reversed, if for no other reason. In respect to the question, which, so far as we know, is a new one in this State, as to whether this should be classed under the seventh or eighth subdivision of Art. 817, Code Crim. Proc., 1895. On an examination thereof, we are inclined to the opinion that, the reception of the testimony by the jury, after they had retired to their jury room, might be considered a species of misconduct of the jury, and so come under the eighth subdivision, if it were not specially provided for under the seventh subdivision. The subdivision relating to this matter reads as follows: "A new trial shall be granted: (7) Where the jury, after having retired to deliberate upon a case, have received other testimony; or where a juror has conversed with any person in regard to the case; or where any juror, at any time during the trial or after retiring, may have become so intoxicated as to render it, probable his verdict was influenced thereby. But the mere drinking of liquor by a juror shall not be sufficient ground for granting a new trial." It would appear from this, that if the jury received other testimony after having retired to deliberate upon a case, a new trial is mandatory. Certainly it would be so where the testimony is of a material character, and it makes no difference whether the jury received this testimony from one of their number, or from others. Prior to the adoption of the Code of 1879, there existed in the Code Crim. Proc, Art. 616 (1 Pasch. Dig., p. 528), the following provisions: "If any juror has knowledge of any fact connected with the case on trial, it is his duty to make it known before the case is finally submitted. Should he fail to do this, he may come into the court with the other jurors, after their retirement, and shall be sworn as a witness, and give his testimony." At that time there was no provision in the Code disqualifying a juror as a witness. In the *Page 319 adoption of the Code in 1879, this article, 616, was repealed by its omission, and a new disqualification of a juror was inserted, to-wit: "That he is a witness in the case." Code Crim. Proc. 1895, Art. 673. It would appear from this that it was the purpose and design of the legislature to get rid of all persons who might be witnesses from the jury, and to allow a person with knowledge of the facts to get upon the jury, and promulgate them in the jury room, would be a vain attempt to ignore the statute. Though the receiving of evidence by the jury, as in this case, after they had retired to their jury room, has been heretofore in cases termed "misconduct of the jury," in our opinion, while in a general sense, it is a misconduct, it falls under subdivision 7, and not subdivision 8, of Article 817; and for the reception of such evidence, where it is material, this court has invariably reversed the case. See, Wharton v. State, 45 Tex. 2; McKissick v. State, 26 Tex.Crim. App., 673; Anschicks v. State, 6 Tex.Crim. App., 524; Hargrove v. State, 33 Tex.Crim. Rep.; Ellis v. State, 33 Tex.Crim. Rep..
Another question presented is as to the bias and prejudice of the jurors, Hubbard and Robinson. We have previously observed that both of these jurors qualified themselves to try the case. Each answered that they had no bias or prejudice in favor of or against the defendant, and were taken on the jury by the appellant with that understanding, and he had no knowledge to the contrary until after the rendition of the verdict. And on this account, he was afforded no opportunity of challenging them. The statute is imperative on this subject, and if the juror answers, when he is being tested, that he has bias or prejudice in favor of or against the defendant, he is subject to a challenge for cause. The law does not stop to inquire as to the grounds of his bias or prejudice, but considers him disqualified to sit in the case. The evidence in this case establishes beyond question that, although these men may have answered (we may presume honestly, as the vice of prejudice or bias is that it renders its possessor blind to the fact of its possession) that they had no bias or prejudice, they were greatly prejudiced against the appellant. Mr. Webster defines "bias" as follows: "A leaning of the mind; propensity towards an object, not leaving the mind indifferent; inclination; prepossession; bent." He defines "prejudice" in this wise: "An opinion or decision of mind formed without due examination; prejudgment; a bias or leaning towards one side or the other of a question from other considerations than those belonging to it; an unreasonable predilection or prepossession for or against anything; especially an opinion or leaning adverse to anything, formed without proper grounds or before suitable knowledge." It is not necessary here to reiterate the facts stated by these jurors, Hubbard and Robinson, to the other members of the jury in the jury room. If they do not indicate prejudice against him, it would be difficult to find a case in which the English language would convey terms expressive of ill will and animosity against a person. See, Long v. State, 10 Tex.Crim. App., 186; Hanks v. State, *Page 320 21 Tex. 526; Henrie v. State, 41 Tex. 573 [41 Tex. 573]; Washburn v. State, 31 Tex.Crim. Rep.; Sewell v. State, 15 Tex.Crim. App., 56.
The views herein expressed do not accord with some of the views expressed in the opinion heretofore rendered in this case, but, as stated, we have given the questions here presented a more thorough and critical examination, and the points here decided are in accord, we believe, with correct principle, and in consonance with the decisions of our courts on the subject. For the errors pointed out, a new hearing is granted, and the judgment of the lower court is reversed, and the cause remanded. Rehearing granted and judgment reversed.
Reversed and Remanded.