This case was submitted for decision on February 18, 1914. At the time it was ably argued by two of appellant's eminent attorneys. They each then presented and urged the claimed errors and only those discussed and passed upon by the original opinion herein, and cited the same four cases hereinafter discussed. The full court was present and heard all this.
In addition, appellant, through his same attorneys, by their written brief, urged and presented the same claimed errors and only those, and cited said four cases.
The original opinion was considered in consultation by the full court on May 5, 1914, when it was read and the case passed upon. There was no intimation of dissent by either of the judges of this court at that time.
The original opinion was handed down the next day with the full court present. No murmur of dissent was then heard.
On May 27, 1914, the case was again resubmitted to the whole court on appellant's motion for a rehearing. It was again considered by the whole court in consultation on June 23, 1914, when it was again determined by the court that there was no error whatever in the trial of the case and that the motion for rehearing should be overruled without any written opinion. At that time, for the first time, Judge Davidson announced that he would not delay the handing down of the decision *Page 539 the next day overruling the motion for rehearing, but said "some matters have been called to my attention and I desire to look into them." The decision of the court overruling the motion for rehearing without any written opinion was announced the next day in open court with a full court. For the first time, on June 24th, as this decision was announced on the motion for rehearing, we saw this endorsement on the original opinion: "The rehearing ought to be granted. Davidson, Judge." Nothing else was heard or said about the decision or the case until after this court, under the Constitution, had terminated for the term and the court had actually been adjourned for the term, which occurred Friday, June 26, just after 12 o'clock noon.
No dissenting opinion had at that time been filed and none was filed until after the court had adjourned for the term and the case had absolutely passed from the control of the court, so far as any question raised on the appeal was concerned.
In the evening of the next day, June 27, 1914, for the first time, was our attention called to the fact that a dissenting opinion had been filed. Our attention was then called thereto, and we were furnished a carbon copy thereof by one of the court stenographers.
In this dissenting opinion, after discussing only two questions that were raised and fully considered by the court when the original opinion was handed down, it is said: "There are other questions in the case, but I deem it unnecessary to discuss them. Some of them, I think, show error. . . ." If that was true, or thought to be true, it seems to us that our attention should have been called thereto before the court adjourned for the term and the case had absolutely passed beyond our control as to any question raised on the appeal. It seems to us also that in justice to the State, and especially to the appellant, should our attention have been called thereto, before the case passed beyond our control as stated.
We purposely refrained from stating the facts of this case in the original opinion. Under the circumstances we now think it advisable, if not necessary, to state the material facts. Most of them were uncontroverted. They are:
In November, 1909, Col. and Mrs. W.L. McGaughey were old and somewhat feeble, — especially Mrs. McGaughey. They were then living on their small farm of about sixty acres in the edge of the village of Tolar, in Hood County. They advertised for a housekeeper — for someone to take care of them. Appellant was their only son, — their only child. He was living at Austin, Texas, holding down a job, a clerkship, in the General Land Office. He was about forty years old and unmarried. He only occasionally visited his parents. He knew their condition. Mrs. Tucker, a young widow, with one small child and with very limited means of support, perhaps none other than her own services, saw the advertisement and got in communication with Col. McGaughey, which resulted in her going to Tolar and making arrangements with Col. and Mrs. McGaughey to stay with them, — keep house for them, do all their work, cooking, ironing, washing, etc. This was *Page 540 early in November, 1909. Mrs. McGaughey was then in very feeble health and quite old. Col. McGaughey was also quite old and somewhat feeble. Mrs. McGaughey's condition continued to grow worse until in February, 1910, when she died. Prior to her death she besought Mrs. Tucker to promise to stay with and take care of Col. McGaughey after her departure until he died. Mrs. Tucker so promised the dying Mrs. McGaughey and she faithfully kept her vow.
Col. McGaughey survived until March 28, 1912, when he died. Meantime from the death of his wife he also became more feeble. Appellant knew all this, but continued to hold down his job at the Land Office, or elsewhere, only occasionally visiting Tolar.
Soon after Mrs. Tucker began her services and devotion to Col. and Mrs. McGaughey, Mr. Hardy Beauchamp, himself a young widower with one child, wooed and won her for his bride. She, however, told him of her vow and promise to the dying Mrs. McGaughey and to Col. McGaughey to stay with and take care of Col. McGaughey until he should likewise depart and that she would keep that vow if it went to the extent of declining to become his bride. Mr. Beauchamp did not seek to have her break her vow but instead did not press his suit further than to exact a promise from her that as soon as Col. McGaughey did depart she would at once become his bride. She faithfully, as stated, kept her vow, devoted her whole time and attention to the care and comfort of Col. McGaughey for more than two years after the death of Mrs. McGaughey, and until he died.
Col. McGaughey knew of the sacrifices and daily was made aware of the care Mrs. Tucker gave him in response to the vow that she had made to his dying wife, and in gratitude for her devotion and sacrifices he determined, in January, 1912, before he died on March 28th following, to modestly recompense her. He thereupon executed a will by which he gave her a one-half interest in said little farm. He wrote out this will in his own hand, took it to his banker friend, Mr. Jones, in Tolar, and had Mr. Jones to typewrite it for him, making one original and two copies. He signed and acknowledged each of these three copies before his banker friend, Mr. Jones, who was also a notary public, telling him that he would keep one of the copies as the original and wanted the other two, — one for Mrs. Tucker and the other for appellant. He kept one of these copies himself and at the time delivered the other two to Mrs. Tucker. She placed these two copies in the writing desk which had formerly been the writing desk of Mrs. McGaughey. While Col. McGaughey, two months later, wan lying on his dying bed, the appellant visited him. He then heard of the will his father had made. He went to the banker and the banker told him all about it. This information, it seems, was communicated to him while Col. McGaughey was yet alive but just before he died. While his father was lying a corpse in his home and before he was interred, appellant hunted for and found these two copies of his father's will and at once took possession of them and secreted them on his person. Just after his father was interred he saw and talked to Mrs. Tucker about having heard something of a will, *Page 541 but we give Mrs. Tucker's language: "John (appellant) stated that he had heard that his father had made a will and he asked me if he had, and I told him that he had and John asked me to burn them. I told him I wouldn't do it. . . . He said, `let's burn them, they are no account.' He said he didn't know anything about them and they were no account. He said he had looked after me and would provide for me and never turn me out of home. I told him I wouldn't burn the wills. He said they were no good, he didn't know anything about it, and I told him I wouldn't burn them. John told me, in that conversation, to go get the wills, and I told him that he got them. He said he didn't know anything about them. He said Jack Hufstetler was the first one that told him about his father's making a will. I told John he had the wills, I never told him about seeing him get them. . . . John cried. I don't know what he was crying about, unless it was because I wouldn't burn the wills. John was walking up and down the hall crying — I was sitting in the room." Mrs. Tucker (Beauchamp) further testified that while Col. McGaughey was lying a corpse in his home she saw appellant go to his mother's writing desk where she had placed these two copies of the will, hunt for and find them, take them out and secrete them about his person.
Appellant's drunken witness, Jim Click, swore before the grand jury, which was taken down in writing and signed by him at the time and which he did not entirely deny on the trial of the case, that: "John said he had heard that his father had willed Mrs. B. the property but had never seen the will. He said this about the time his father died. I heard that Col. McGaughey had made a will right at the time Colonel was a corpse. John never told me he stole the will from Mrs. Beauchamp, but I may have told when I was drunk that John had told me he stole the will from Mrs. Beauchamp, or out of the desk when the Colonel was a corpse."
Mrs. Tucker (Beauchamp) further swore: "When John McGaughey asked me to burn those wills or copies of the will, he said that if I would burn them up, he would let me stay there as long as I wanted to, it didn't matter how long it was, and that he would educate the boy and give me a set of silver knives and forks, and in the fall he would give me $100, and I don't know what all. He said I could stay there as long as I wanted to. He also said he would give me a nice diamond ring. He offered me these to burn the wills. I told him I wouldn't burn them."
After Col. McGaughey had been buried Hardy Beauchamp, the deceased, then claimed of Mrs. Tucker the fulfillment of her plighted vow to him. Recognizing her vow to him and having faithfully and tenderly carried out her vow to Col. McGaughey and to his wife on her dying bed, she saw no further impediment or reason for delay in marrying Hardy Beauchamp, and she did marry him on April 3, five days after the death of Col. McGaughey. She and her husband continued to live at this McGaughey home from that time until the appellant murdered him on February 6, 1913, they claiming the right to live there *Page 542 and one-half of the property by virtue of Col. McGaughey's will. Appellant kept his room there which he had kept for years, though only there occasionally. He was in and out back and forth from time to time, as he had been in the years gone by, not staying at this home, except at intervals; but continued his employment and to hold down a job at Austin, or Dallas, or elsewhere than at Tolar. But he began to try to get possession of the whole of this little farm from the Beauchamps, becoming more persistent as the days went by. On January 3, 1913, before he murdered deceased on February 6, following, the Beauchamps began regular court proceedings to probate Col. McGaughey's will. They also brought suit at that time against appellant for a partition of said little farm, claiming one-half of it by virtue of said will. Appellant not only resisted these suits, but himself began proceedings against the Beauchamps for possession of the little sixty-acre farm. He sought in every way to get them out and to get exclusive possession himself, but failed. He tried to compromise with them, and there was some movement by both parties to this end, but the compromise was broken off just before noon, within an hour perhaps, from the time appellant murdered deceased. The compromise, it seems, was broken up and so understood by appellant just before noon when he and deceased had an interview at one of the stores in the little village of Tolar. They then separated, deceased going to the McGaughey home where his wife had prepared their dinner. Mrs. Beauchamp swore that her husband came into his dinner alone a short time before appellant came for his. Appellant still kept his room in the McGaughey home and at this time was not only sleeping there but was eating with the Beauchamps at their table. Mrs. Beauchamp had arranged, and told appellant in the morning that she was going to a church meeting in Tolar that evening early. Just after Beauchamp, deceased, had finished his dinner appellant came to the Beauchamps for his. He then claimed that he had scratched his finger in some way and asked Mrs. Beauchamp to tie it up for him, which she graciously did, deceased being present and assisting therein and furnishing a liniment which they used on his scratched finger. Mr. Beauchamp then left his room, perhaps the house, — his whereabouts are unaccounted for — for some half hour or longer until the very moment when he was murdered. Appellant again, while he was eating his dinner which she prepared and set for him, asked if she was going out as she had announced to him in the morning. She told him she was. He said to her just after he had sat down to his dinner that she ought to go to the church meeting. Just at this time he told her he wanted to see Jim Click. She swore: "He said Jim Click had two bottles of whisky and he was going down there to make him throw them away. I told him there was Jim Click and he didn't have to go down there. He holloed at Jim, — Jim was passing the gate and John holloed at him and they talked; I don't know what they said. After John talked to Jim Click he came back and sat down at the table. John said he was going to make Jim Click throw that whisky away, that he would get drunk and that he wasn't going to let him have it *Page 543 and he (John) said, `Miss Lula, don't you think I am plotting against you, because I am not doing it, — I am not plotting against you, Miss Lula.'" After seeing Jim Click out at the gate at this time appellant returned and resumed his dinner. Mrs. Beauchamp, while appellant was still eating dinner, left her home and walked a half mile with a neighbor to the church meeting. Very soon after her arrival there she was informed that her husband had been killed and immediately and as rapidly as she could, returned to her home, where she found all too true that her husband had been murdered by appellant.
While appellant was out interviewing his drunken witness, Jim Click, as shown above, Emmett Sellers passed by and saw them in earnest conversation. He heard Jim Click then say to appellant, "You had better not do that." Appellant had Jim Click in his testimony on this trial to swear that at the time this conversation was had it was just after he had killed the deceased. Sellers swore it was not, and all the other facts in the case show conclusively that it was not. Sellers at the time was passing the McGaughey house, and swore, in effect, that the body of the deceased was not lying where it was afterwards, in about a half hour, found. Sellers swore that he was going beyond the McGaughey home at the time to get a cow that he had bought from Mr. Jack Hufstedler; that he rode on to Mr. Hufstedler's, wrote a check for the cow, got the cow and Mr. Hufstedler helped him to start the cow off and that they drove her from there to the McGaughey home, when they discovered the dead body of the deceased. No one was there at the time, and Mr. Sellers swore that it was not at that time that he heard Jim Click say to appellant what he said as shown above, but that it was a half hour before that, when he was passing the McGaughey place to go get the cow.
Jake Hufstedler swore that just shortly before appellant murdered the deceased, appellant was telling him about the Beauchamps claiming that his father had made a will, giving Mrs. Beauchamp one-half of said little farm, and that, in effect, they were trying to hold half of it under the will; that appellant said to him in that conversation, "That he wasn't going to stand for it; wasn't going to put up with it — he would die first." Paul Hufstedler swore that about this same time appellant, in talking to him about the Beauchamps trying to hold half of said little farm and claiming under Col. McGaughey's will, said: "`There are people trying to beat me out of my property.' He said, `I will die before they will beat me out of my property. . . .' He said Mr. and Mrs. Beauchamp were trying to beat him out of his property."
Guy Hufstedtler swore that just shortly before the murder of deceased appellant was talking to him. "He said he was having some trouble about these people trying to take his estate away from him, and he said, `It seems like I could get along all right if it was not for Beauchamp — seems like Beauchamp is the whole cause of it.' And he said, `They are going to keep on monkeying around there till I will kill somebody.'" *Page 544
Mr. J.K. Bowman, a deputy sheriff, swore that just shortly prior to the murder he was on the train with appellant; that appellant called him over to sit down by him and began talking about the Beauchamps trying to hold half of this little farm. He swore appellant said he was "having, a heap of trouble with Beauchamp about the property, and he said it looked hard that he had worked hard at Austin and lived on two meals a day to pay that place out and for them to come in and set up a claim, and he said. `If Beauchamp was out of the way I could manage Miss Lula.'" (Miss Lula referred to above was Mrs. Beauchamp.)
When said witnesses Sellers and Jake Hufstedler first found the body of deceased just after appellant had murdered him, it was shown that appellant had shot him four times, — once in the face, the ball coming out near the car, three other wounds in his breast, — one near his right nipple, another near the left nipple, it passing entirely through his body and must have penetrated his heart. His body was found lying on a little uncovered platform extending from the house to the cistern. They found not only these pistol wounds in his body, as described by witnesses, but also, as described by the various witnesses, they found this:
Near the body of the deceased was an ax bloody all over. The ax was a chop ax, double bladed, the blade measuring ten inches from one edge to the other, weighing about five pounds, the handle about three feet in length, of hickory wood. One edge of the ax had been freshly ground. This ax was shown to have been returned by a borrowing neighbor that morning and was set down against a tree some little distance from the cistern. When found after the killing it was several feet from the body of the deceased, lying flat on the ground, with the handle towards deceased's body. After shooting the deceased as shown above and while his prostrate body was lying on said little platform, appellant put up his pistol, got the ax from the tree, went to the body of the deceased, and the witnesses swore there were four cuts on the back of the neck of the deceased with this ax. One witness said: "The first cut wound on the dead man was right about the hair of the head on the neck — it was a straight gash — cut wound about three inches deep and just the width of the ax, about four inches wide. The second wound was just back of the first wound down on the neck. That one was not probably over a half inch deep and about four inches wide. The next wound was lower down on the skin, cut, — looked like it was cut angling. That wound was very shallow and was lower down. There was another wound that hardly went through the skin. There were four cut wounds altogether on the neck."
The ax was identified, produced and introduced in evidence. Another witness swore of these ax wounds, "It looked like the licks had been struck over every time. The front part wasn't cut — it was the back part, — like a man would strike over anything. The head was not severed from the body — it lacked about two or three inches in front — I didn't examine that carefully."
Shortly before the grand jury indicted appellant in April, 1913, he interviewed said witness Sellers. Sellers swore: "I asked him why he *Page 545 used that ax after he had shot Beauchamp, and he said he reckoned he was so mad that after he (Beauchamp) fell he was flopping around there and he grabbed the ax and hit him before he thought. I believe John said Beauchamp was flopping around there like a chicken with his head off and he used the ax then."
The evidence further shows that immediately after appellant had murdered deceased he got his drunken witness, Jim Click, and went with him to the little town to tell of the killing. One of the first ones, if not the first, that appellant saw after the killing was Sam Hufstedler. Hufstedler swore: "As to John's manner and appearance at that time, if I had not known of the killing I would not have suspicioned it at all — he seemed to be as cool as I ever saw him — there was nothing in his looks or manner that indicated any agitation — he was perfectly cool. He went on to the house with us in that condition."
Appellant's sole defense was self-defense which he attempted to establish by his drunken witness, Jim Click. Appellant himself did not testify.
Jim Click swore that he saw the shooting but did not see the ax transaction; that immediately after the killing, "When I met John at the gate he said, `I killed him, but I had it to do.' John didn't tell me how he killed Beauchamp — he didn't tell me he chopped Beauchamp with the ax — John didn't say anything about the ax. All he said was, `I killed him, Jim, but I had it to do.' He didn't go into details — he didn't make any explanation — he didn't say Beauchamp was doing anything to kill him — he didn't say Beauchamp made a threat on him — I asked him what he was going to do and he said, `I am going to phone for Luther Waldrip, the sheriff.' Don't know whether I said anything or not. I believe I asked him what he wanted me to do, and he said, `Come on, go with me to town.' As soon as I could unharness the mules we started to town. I met John at the gate, we came back and unharnessed the mules and we both went right on to town. When we got to town, John told me to tell Jones and Fortner."
It is true that appellant had his drunken witness, Jim Click, also to swear that he was off some distance hitching up his mules and just before the shooting he heard loud talking between appellant and deceased and that he heard appellant say to deceased, "I am going to see Jim a minute," and Beauchamp wheeled around facing John and said, "If you go out there caucusing with Click I will kill you," and he ran his hand in his pocket — "I was looking just as straight as I am looking at you now. Beauchamp and McGaughey came out on the porch, John stepped behind Beauchamp and said, `I am going to see Jim a minute,' and Beauchamp said, `If you go to caucusing with old Jim Click I will kill you, God damn you,' and he whirled around and McGaughey shot him and he staggered toward McGaughey, and I dropped the lines and the mules began to run, and there was a harness house right at me, and before I got the mules checked up, I was behind that, and I heard three shots and McGaughey came meeting me. Beauchamp ran his hand in his pocket — I could see it. I never saw a thing in Beauchamp's hand. *Page 546 I didn't see Beauchamp with an ax — I saw an ax at the cistern, and I talked to John over ten feet away from there. I didn't see John chopping Beauchamp with the ax because the mules ran away around the house out of sight. I never saw any ax in Beauchamp's hand. Beauchamp didn't have the ax in his hand when he was shot — that ax was sitting by the cistern, seven or eight feet from where he fell. Beauchamp ran his hand in his pocket — I am sure he didn't have any ax in his hand — the only thing Beauchamp did was to say what he did and run his hand in his pocket."
Jim Click further swore: "Immediately after Beauchamp was killed I took charge of that house. I took charge at McGaughey's request and under his instructions and before Mrs. Beauchamp got her things out of the house. . . . I didn't ask Mrs. Beauchamp's consent to move in then — I didn't ask anybody's consent — John told me by legal authority to go in there."
The jury were clearly authorized by all the evidence, to believe beyond a reasonable doubt, as they did, that Jim Click's testimony as to appellant's claimed self-defense was false; that he saw and heard nothing of the killing; that his testimony tending to show self-defense was wholly manufactured and that there was no self-defense. The evidence as a whole also authorized the jury to believe beyond a reasonable doubt, and the preponderance of it clearly showed, that the murder was deliberately planned, coolly executed, and the body of the deceased, after he was lying prostrate on the platform, dying, if not dead, was horribly mutilated by appellant with the ax in a most brutal manner. The wonder to us is that appellant escaped with so light and short a term in the penitentiary.
But after the adjournment of court, and after all jurisdiction of this case, as stated, had passed from this court, we are shown a dissenting opinion, filed after the term had ended, in which it is claimed, in effect, that the "speech or lecture" as designated by appellant, but as designated by the dissenting opinion, the "verbal charge" was a charge to the jury in this case. We don't know how it can possibly be claimed that what the judge said to the jury panel when he organized the jury for the week, was a charge to the jury in this case. Only four of those who heard it were afterwards selected on the jury that tried this case. There is no intimation by this record that the other eight heard it, or ever heard that the judge had said anything to said jury panel. The only charge the court gave the jury was the written charge in this case to which there was no shadow of objection in this or the lower court. In it he told the jury in this case, "You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony,but you will receive and be governed by the law as given you incharge. I therefore proceed to give you the law applicable to thefacts of this case for your guidance."
The dissenting opinion makes these objections to what the judge said to the jury panel — four of whom served on the jury in this case:
"These statutes limit the authority of the trial court, first, to giving *Page 547 a written charge; second, the charge must set forth plainly the law of the case; third, it must be given after the evidence is introduced and before the argument is begun; fourth, errors, if committed, will require a reversal if calculated to injure the rights of the accused or deprive him of a fair and impartial trial; fifth, it prohibits the judge from discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. (C.C.P., art. 736); sixth, it prohibits the court from giving any charge of any sort in a felony case except in writing; seventh, this charge must be delivered after the evidence is introduced and before the argument is begun." Appellant made no such objections. Below we quote his objections.
A complete and perfect answer to all this is that what the trial judge said was not a charge of any kind or character inthis case, and by no hocus pocus can it be construed to be. Appellant, neither in the lower court, nor in this, so claimed or intimated. In the original opinion we quoted in full, word for word, what the trial judge said to the jury panel — only four of whom were on the jury in this case. We also quoted in full his qualification of appellant's bill complaining thereof. We did not then quote, but we now quote in full, word for word, the objections he made thereto:
"To which action of the court in making said speech and delivering said lecture to the jury immediately before the defendant was required to announce ready for trial the defendant then and there excepted upon the ground that said lecture was detrimental to defendant's rights and was calculated to lead the jurors for the week to believe that the court desired them to convict, and that in the event they did convict in an improper case the court would thereafter protect the rights of the defendant, and the jurors were therefore much more ready to convict than they would have been but for the said lecture, and but for belief that the court would rectify any error that they committed in convicting. And the defendant here now tenders his bill of exceptions and asks that the same be approved and filed as part of the record in this case."
As shown above, when this case was submitted, appellant's attorneys, in oral argument, claimed that this speech or lecture heard by only four of the jurors was injurious to their client and reversible error, but not because it was a charge in thiscase. They did not claim it was a charge in this case. They then cited in oral argument said four cases of Jones v. State, 51 S.W. Rep., 949; Attaway v. State, 41 Tex.Crim. Rep.; Chapman v. State, 42 Tex.Crim. Rep., and Murphy v. State, 57 S.W. Rep., 967. They cited and relied upon these four cases in their written brief. We called attention to them in the original opinion. The dissenting opinion again cites these four cases and claims that the decision in this case, and in the case of Reed v. State, recently decided, are in conflict therewith. We said in the original opinion, and say now, that they are not in conflict herewith, and neither of them is.
We did not before give what was said by the trial judge in said four cases. Neither does the dissenting opinion; but we will now take up *Page 548 each of them and show what the judge said to the jury in each. In neither of those cases is the whole of what was said by the trial judge to the jury given in full in any one of them. Different portions are given in the different opinions. But they all show that identically the same thing was said in each case by the trial judge. All of those cases were tried in the court below before the same learned, eminent and able District Judge, Wells Thompson. Evidently he had prepared in writing what, he said to each of the juries in those cases and said the same thing in each.
We take the cases in the order in which they were decided. The opinion in the Jones case was written by Judge Brooks on June 7, 1899. In that case appellant was convicted for assault with intent to murder. The court affirmed that case, — did notreverse it, although Judge Thompson gave the same charge in that as in the three other cases. This court in that opinion unquestionably laid down the law applicable. It is: "But we desire here to emphasize what we said in Gaines v. State,38 Tex. Crim. 302, 42 S.W. Rep., 385, towit: `However improper and indelicate such expressions as are here attributed to the judge may be, they do not of themselves afford a ground for reversal of the cause.' As was said in McCauley v. Weller,12 Cal. 500: `If the judge act illegally on the trial, or deny the prisoner his legal rights, this would be a cause for reversal. . . .' The most that can be said is that such conduct will cause a closer and more rigid scrutiny of the errors complained of."
We invite a reading in this connection of the Gaines case, cited by Judge Brooks. It was shown in that case that the district judge there denounced the act of Gaines, in effect, as a cold-blooded assassination, and that he should be hanged. He reiterated this to the newspapers, which published it. He at no time retracted what he said of the defendant in that case. This court in passing on that case correctly held, as stated by Judge Brooks: "However improper and indelicate such expressions as are here attributed to the judge may be, they do not of themselves afford a ground for the reversal of the cause."
The next case decided was the Attaway case, on January 17, 1900. The opinion was by Judge Henderson. He expressly held that the address of Judge Thompson to the jury was not reversible error and reversed the case on another entirely distinct and separate ground. The other two judges, however, said that the case ought also to be reversed on what Judge Thompson had said.
The other two cases, Murphy and Chapman, were decided on the same day. Judge Brooks wrote the opinion in the former and Judge Davidson in the latter. Judge Henderson vigorously dissented inboth.
But let us see what Judge Thompson did say to the jury in each of said four cases. We will not copy all of it, but will copy enough and the material parts, so as to conclusively show, as we said in the original opinion herein, that what he said to the juries in those cases is nothing like what is complained of as what Judge Oxford said to the jury panel *Page 549 in this case. What Judge Thompson said to the jury in each of those cases was this.
(We take this quotation from the Jones case.) "I want to call your attention to the law of reasonable doubt, what is frequently urged as defense for crime, and which will be urged in most, if not all, cases that will come before you while you are the jury for this week. I will give you this charge upon these subjects here now, because the law restricts me from giving it to you in the particular cases that arise as they arise. What is meant by reasonable doubt is not any mere supposition, but is one that arises and is founded upon the evidence of the case. Shrewd lawyers urge and represent to jurors in the trial of cases that, if there is any doubt in the case, the defendant should be acquitted, and urge the old saying that it is better that ninety and nine guilty men go free than one innocent man be convicted, and upon this doctrine, and upon the unreasonable extension of the defense of reasonable doubt, thousands of criminals have been turned loose upon society in Texas. I don't think I ever saw an innocent man convicted. We hear of them now and then way off, but, like the bag of gold at the end of the rainbow, when we approach they vanish. Now, I believe, and I think every right thinking man thinks with me, that it is better that an innocent man be convicted now and then than that ninety-nine bloody murderers, burglars, and robbers be turned loose upon the country. This doctrine of reasonable doubt, as urged by shrewd lawyers in this State, has no application, and should have no weight with jurors. Our laws are intended for the protection of society, and, while they do not aim in any instance at the conviction or punishment of the innocent, yet it is of the highest importance to you and me that the guilty do not escape through the influence of such sophistry as I have called your attention to, which, in the great majority of cases, when urged as a defense, is like the famous hip-pocket defense in homicide, to which I will call your attention, — is a manufactured and fictitious defense; and, whenever the jurors see such defenses raised to shield the guilty criminal, it is not only their duty, as the judges of the fact, to disregard it, but to disregard it altogether. If the innocent man is convicted he can appeal to the higher courts, and get his case righted. By reasonable doubt is not meant an ordinary doubt, not any small doubt, but a doubt arising out of all the testimony. I charge you to recollect these matters, and be guided by these general instructions in the trial of each and every case that shall be submitted to you in which such matters will arise, and hope that your conduct as jurors will conform to them; and if you, as jurors, are guilty of any improper conduct, I will give you notice right now that the one or ones so guilty will be fined not less than one hundred dollars, and the one so fined will not get it remitted."
(We take this quotation from the Chapman case.) "There is a defense for murder that is put in evidence in almost every case that is now tried, until the law-abiding citizen has become alarmed. It is the hip-pocket defense, by which the murderer seeks to justify under the law of self-defense. It has received its sanction in those cases which *Page 550 lay down the rule that the jury must judge the defendant's case from his own standpoint; that they must put themselves in his shoes, and look at his adversary just as he appeared to the defendant himself at the time he fired the fatal shot, and if the deceased made any demonstration, such as throwing his hands behind him, which reasonably appeared to defendant that his life was in danger, or that he was in danger of serious bodily injury, and defendant then killed deceased, that he would be justified under the law of self-defense. There may be something in the abstract theory thus laid down, and there might possibly arise such a case wherein a party might be justified, although deceased was unarmed. But a person ought not to make any mistake or error in regard to the meaning of such demonstrations or movements of his adversary. In nearly every case the defendant or his friends testify that the deceased threw his hands behind him, and this bare fact seems to be enough to cause juries to rush with jubilant feet to the rescue of the murderer. . . . Now, as you jurors are the exclusive judges of the credibility of witnesses, it is for you to say that when a defendant has murdered a helpless, unarmed man, and he offers proof, by himself or his friends, that although the deceased had no weapons himself, and although he knew that the defendant was himself armed, yet he (deceased) actually threw his hands behind him as if to draw a pistol, which he did not have and never had, and advanced on the armed defendant to certain death, — it is for you to say whether or not such testimony is true or false. If I was a juror, I should, without hesitation, say that such testimony was manufactured, and I should promptly disregard it."
In the original opinion herein, as stated, we quoted literally and fully everything that Judge Oxford said to the jury panel for the week. We invite a reading of it, just in this connection. How it is possible for anyone to claim that the language of Judge Oxford in this case is anything like the language of Judge Thompson in the other cases, we are incapable of comprehending. We think no reasonable man, whether he be "lawyer," judge, juryman, or citizen, could for one moment believe, think or imagine, that the language is substantially, or otherwise, the same, or that the principle which would apply to one could apply to the other.
We do not desire to discuss this question further. A mere statement of the matters and a reading of the opinions are all that could be even desired.
Besides this, even if by any kind of mental gymnastics the jury panel — only four of them were on the jury in this case — could have considered what the judge said to them was a charge in thiscase, then we are peremptorily commanded not to reverse the cause on account of the language of the district judge; for article 743, C.C.P., as amended in 1913, expressly commands, "thejudgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." We obeyed this command. *Page 551 We could not have done otherwise. We think no one, whether he be "lawyer," judge, or citizen, can read this record and come to any other conclusion, or even have it suggested thereby that appellant did not have a fair and impartial trial, or that any error was committed therein which was calculated in the slightest degree to injure his rights.
As to the other complaint in the dissenting opinion that the trial judge had no right to deprive appellant and his friends of the privilege of seeing the jury list before the court convened so that he, or they, could tamper with the jurors and "fix" them, or where they were not wanted by him, to disqualify them, we have but little to say. We have been taught to believe, and do believe, that prevention is better than punishment. Our Supreme Court and this court have, in effect, many times said: "Prevention of crime is one of the objects to which the most anxious thoughts and the most constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method. Our codes are full of instances of this too numerous and too familiar to need citation." Dupree v. State, 102 Tex. 455; Ex parte Allison, 99 Tex. 455.
The suggestion, as we understand it, of the dissenting opinion, that the court ought to have permitted the appellant and his friends to have the opportunity to "tamper" with and "fix" the jurors, and thereby acquit him of a most heinous crime, of which there can be no shadow of doubt of his committing, and then forsooth punish him, or his friends, in contempt proceedings by fine of $100 and confinement three days in jail, or any other punishment for the "jury fixer," does not meet with our approval. Instead, we again commend the action of Judge Oxford in preventing these crimes, and in securing a fair and impartial jury, and one that had not been tampered with, nor fixed in advance. Surely what Judge Oxford did and said in this respect, as shown by appellant's bill, must have been overlooked. There is no shadow of error on this point shown by the record in this case. On the contrary, the very reverse of this is true. By no statute or other law are our trial judges prohibited frompreventing the jury "fixer" from getting in his infamous work. On the contrary, the whole trend of our legislation and "jurisprudence" makes it the duty of trial judges to prevent the "jury fixers" tampering with the jurors.
We have again carefully reviewed the whole record of this case and are of the opinion that no error whatever was committed in the trial that could possibly be even an excuse for this court to reverse this cause, and we are more than satisfied with the affirmance of it as shown in the original opinion.
Affirmed. *Page 552