I am of opinion that for several reasons this judgment should have been reversed. The change of venue should have been granted as prayed for by appellant. The application for change of venue was sworn to by 150 compurgators from practically all sections and precincts of Hunt County. It alleges both grounds: prejudice and combination of influential people. These compurgators make it plain that the prejudice was so intense in the county that appellant could not obtain a fair and impartial trial, and it would come fairly within that rule as well as of prejudgment of the case. Mr. Leddy, of counsel for the State, testifies as follows: "I observed that the greater portion of those 150 names were from scenes reasonably *Page 586 close to the killing — the large majority; some of them come from every precinct in the county; the affidavits filed contain names in every voting box; there might have been some from Caddo Mills but I don't remember seeing any; there might have been two or three there but not very many. There were some from the Campbell precinct and down south of town here at Quinlan and Cash — more from those precincts than from the other precincts in the county. I suppose Commerce is a little further than twenty-five miles from Lone Oak and is in the northeast part of the county. Wolfe City is in the northern part of the county something like about thirty miles from Lone Oak; Celeste is about thirty-two miles, I think, from Lone Oak — about twelve miles to Celeste and about twenty to Lone Oak. I have not visited the precincts of Wolfe City, Celeste, Caddo Mills, Floyd and Campbell for the purpose of hearing this matter discussed, but I have been to several of the precincts since June 26th." The killing occurred at Lone Oak, in the southeastern portion of the county. Campbell is about ten miles, it seems, north from Lone Oak. The other villages and towns mentioned are in different sections of the county, from which the 150 compurgators came. The controverting affidavit was signed by Mr. Leddy, the district attorney, Mr. Thompson, Owens, Turner, and Harrell, stating the usual ground, towit: that these men were not sufficiently informed to know whereof they speak in their affidavit. There is quite a lot of testimony introduced with reference to the compurgators and where they live and who they were. The evidence overwhelmingly shows many of them were among the most respectable citizens of the county, men of integrity, well informed, and placing them above reproach so far as their integrity and character is concerned. The affiants for the State show, as I understand this record, the sentiment against the defendant to such an extent that the venue should have been changed upon their statement. For instance, Mr. Harrell, who signed the State's controverting affidavit, says: "I don't know who signed the affidavits to the application. I don't know their opportunities to know the conditions of the parts of the county where they have gone or live; I only give my opinion of the condition of the county over where I live in Wolfe City. The sentiment seems to be pretty hard against the defendant in Wolfe City. . . . The people that I have heard express themselves in the case have been unfavorable to the defendant; there are people in the community that I haven't heard express themselves one way or the other. So far as my knowledge of the sentiment from the expressions I have heard they are unfavorable and against the defendant." Mr. Turner lived at Commerce. Some of the 150 names attached as compurgators to appellant's application lived at that place, and among these are Mr. Acker, Dr. Wheeler and Dr. Smith, Mr. Wynn, the cashier of the bank there, L.L. Knight, J.M. Wright and Dave Finley. Mr. Turner says: "I could not tell you whether Dr. Wheeler's opportunity for knowing the sentiment of the people in the country around there is better than mine; he goes around more than I do." Then he mentions a great number whom he knew also signed as compurgators. *Page 587 "I don't know and haven't had an opportunity of knowing their means of knowledge as to whether they knew of any prejudice against the defendant, or of a combination against him; I suppose they could have known that and me not be advised about it. In making this affidavit I didn't mean to say that those people you have mentioned didn't know themselves of any prejudice against this defendant, I only made it in my judgment."
Mr. Owens, another State affiant, testified he lived at Commerce. He says: "I have no knowledge or means whereby I can determine as to their opportunity for finding out the sentiment in this county as to the Barnett case or against the defendant, Bob Barnett; I don't know anything about the extent to which they were acquainted in the county; I didn't know as to whether they knew of any combination against the defendant or not and don't know whether they knew of any prejudice against the defendant." This witness takes up quite a lot of the compurgators, showing them to be men who mingled and mixed with the people a great deal. I do not recall any evidence which shows that the compurgators are uninformed of conditions in Hunt County.
The appellant's witnesses make it clear that he could not get a fail and impartial trial in the county. Some of the State's witnesses said they thought he could get a fair and impartial trial, and some seem to think any man could get a fair and impartial trial if they could secure a jury. I do not purpose to follow up or quote the testimony, as it is very voluminous, covering at least 150 pages of the record. It covers fairly the whole of the county, some of which is quoted above, as has been mentioned by Mr. Leddy in his statement.
As to the combination, it is shown that about 176 different parties contributed to a fund to employ counsel to prosecute, and that the firm consisting of Messrs. Clark Leddy was employed and prosecuted the case in a very efficient manner, filing briefs as well in this court, and one member of that firm argued the case orally before this court. It is also shown that just after the homicide at Lone Oak several automobiles were employed or used by prominent citizens of Lone Oak in going to the county seat at Greenville, where the District Court, presided over by Judge Dohoney, was then in session. They demanded of him that he empanel a grand jury at once and try the defendant. He empaneled the grand jury and a bill of indictment was returned, but on application of the appellant the cause was continued. This continuance was more or less criticised over the county. It is shown without controversy that this is the first instance in the history of the court presided over by Judge Dohoney of a grand jury being empaneled. These parties were vigorous in the prosecution, and successful. There is evidence tending to show that they visited to some extent over the county getting up funds, etc. Some of the papers published head-lines and articles under the head-lines deprecating in strong language the homicide and used pretty vigorous language, which was circulated among the people. Speaking of the list of contributors to the fund for employing counsel, Mr. Leddy says: "There are 172 names on the *Page 588 list and the subscriptions ranged from $10 down — I think $10 was the highest. The list is composed of influential citizens of that precinct." Then follows the list, which shows 172 names, and cash besides, by others whose names are not mentioned, making the number 176, and one whose name is just put down as "W.F." It is also shown in this connection that there were about 6000 qualified jurors in Hunt County. This seems to have formed the basis to some extent why the change of venue was not granted. It occurs to me from a reading of this record that if there has been a case before this court in which a change of venue ought to have occurred, this is the case. Certainly a man is entitled to a fair trial before an impartial jury, and this is not fairly answered by the statement that the district judge saw and heard the witnesses. Every district judge who tries any question hears and sees the witnesses and decides upon what he thinks is right about it. If because he heard the witnesses and decides in favor of the State is to be the criterion of a man's right to have a fair trial, it would be useless to appeal; in fact, that would deprive him of the benefit of an appeal. I have always been under the impression that the right of appeal was granted for the purpose of reviewing the rulings of the trial judge and not make them final because he happens to see and hear the witnesses. Great deference is to be paid to the conclusion of the trial court in matters on appeal for good reasons. This is to be always regarded. Many of the cases have been collated by Mr. Branch in his work on Criminal Law in section 199. He states tersely and correctly a rule that has been followed by this court, towit: "If testimony shows that defendant might get a fair jury if culled and particularly selected, but if selected in usual way it would not be likely, and prejudice is shown, motion should be granted. Barnes v. State, 59 S.W. Rep., 882; Randle v. State,34 Tex. Crim. 43, 28 S.W. Rep., 953." He also states another rule which I have always understood to be not only correct but followed by this court in its various decisions. That rule is thus stated: "If case is prejudged, or if it is a notorious crime, and prevailing sentiment is that defendant is guilty, change of venue should be granted. Randle v. State,34 Tex. Crim. 43, 28 S.W. Rep., 953; Meyers v. State,39 Tex. Crim. 500; Gallaher v. State, 40 Tex.Crim. Rep.; Faulkner v. State, 43 Tex.Crim. Rep.; Alarcon v. State,47 Tex. Crim. 415; Dobbs v. State, 51 Tex.Crim. Rep.; Cortez v. State, 44 Tex.Crim. Rep.; Barnes v. State, 59 S.W. Rep., 882; Gallagher v. State, 55 Tex.Crim. Rep.; Smith v. State, 45 Tex.Crim. Rep.."
The great bulk of this testimony is to the effect that the sentiment was so strong against appellant that he could not get a fair and impartial trial. I might repeat the testimony of quite a number of these witnesses, but the facts as stated by them are in the record and it would serve no useful purpose. The great weight of the testimony places it beyond hope of a fair trial, many of the witnesses going so far as to say they had never heard anybody speak favorably of appellant, and *Page 589 that he had a bad case; some said he ought to be hung, and the great weight of the testimony is that he ought to be punished. The writer is clearly of the opinion that the combination was sufficiently shown to entitle appellant to a change of venue for that reason. As I understand this record this fact was barely, if at all, controverted. Enough of the testimony bearing on this issue has been stated to show, by the action of the 176 who subscribed money to prosecute appellant, and the vigor shown by the people in that action in appearing before Judge Dohoney and demanding the organization of the grand jury and the immediate prosecution and conviction of defendant, in my judgment, sufficiently such a combination existed as to have required a change of venue from that viewpoint. But these facts were strengthened by other evidence in the record as I read it. I do not care to follow this question further.
2. The court intermingled charges on self-defense from two standpoints. First, from the defense of appellant's wife; second, the defense of himself. Exception was taken to that part of the charge submitting self-defense as to the defendant personally. I believe this proposition is correctly asserted. Briefly, bearing upon this issue, it may be stated that deceased, Harrison Choat, obtained or rented from appellant land which lay adjoining appellant's residence, consisting of fifteen acres, which was planted in cotton. The terms of the rental contract, or whatever it may be termed, were that Choat was to cultivate the land and appellant to furnish the team and feed for the team and tools and all those sort of things. In other words, it is what is termed acontract on the halves. There had been trouble between them about one of the teams prior to the day of the homicide, in which Choat (deceased) had given appellant a beating, being physically able to do so. On the day of the homicide appellant and one of his boys were hauling oats. At the noon hour they fed their team in a lot or barn and took a "siesta." When he awoke he was informed of the fact that his mules, which he had been working to the wagon hauling oats, had gotten out and were in the cotton. His son was sent for the mules, and deceased, who was hoeing cotton, refused to let him get the mules, stating that he would get them. The boy returned and informed his father, who said he would go. The wife said, "No, you will get into trouble, I will go." So, she took one of the little boys and went after the mules and tried to get them back in the lot. It seems the cotton field was not clean, there was grass in it, and the mules were enjoying themselves eating the grass. But be that as it may, the wife and boy went down and deceased undertook to prevent them from getting the mules, and sent his wife to the house for a rope. While she was gone Mrs. Barnett and her little boy were trying to drive the mules to the lot. Appellant, seeing the attitude of things, got his gun and went in the direction where they were. The self-defense proposition here asserts itself. Deceased was approaching Mrs. Barnett with an uplifted hoe, and, as shown by the map in the record, getting further away from appellant, perhaps with his right side partly to appellant; he was some distance *Page 590 away, not coming towards but going from appellant, and was not making any demonstration towards him, but going towards Mrs. Barnett with an uplifted hoe, whereupon appellant shot. As I understand the law in Texas, this does not raise the issue of self-defense as to appellant personally. Deceased was not making any attack or threatening one on appellant, but was making an attack, from appellant's standpoint, upon appellant's wife with the hoe. That this hoe was a deadly weapon used by a strong, vigorous man like deceased is shown to have been, ought not to be questioned, at least not seriously. If there had been any evidence suggesting the fact that appellant may have been in danger at the time, or that deceased was making an attack directly or indirectly upon appellant at the time, the court would have been correct in submitting the issue of self-defense from both standpoints. He should not, however, divert the case from its merits and put into it another issue not made by the facts. To say the least of it, it is not in the case, and it may have influenced the jury to believe the court did not believe the self-defense theory that he was attacking the wife, when he included in his charge an attack on the husband of the wife. Just how far a favorable charge under ordinary circumstances would be erroneous or not is sometimes difficult to say, but it ought not to be a difficult question to solve that any charge which would divert a case from its merits and real issue to a false issue would tend to minimize the real issue in the case and treat the accused legally unfair. The trial court does not believe the testimony of the defendant that his wife was being attacked, and, therefore, he put into the case another issue not made by the facts. The jury were authorized so to believe. I do not care to pursue this further.
As also hurtful in this connection on self-defense, the court gave a charge on threats, applying the threats against the life of the defendant. This intensifies the above error. The court gave the following charge at the request of the State:
"You are instructed that, at the time of said homicide, the running at large in Hunt County of mules was prohibited under the laws of this State.
"If, therefore, you believe from the evidence that the defendant's mules entered enclosed lands leased and occupied by Harrison Choate and were roaming about the cultivated land of the said Harrison Choate, without the consent of said Harrison Choate, then you are instructed that the said Harrison Choate had the lawful right to impound said stock and retain the same in his possession until it was determined by three disinterested freeholders appointed by the justice of the peace of said precinct what damages, if any, had been done to the crop of the said Choate by said mules and what fees, if any, he was entitled to under the law for impounding said stock."
Exception was reserved to this charge. Why this charge should have been given, or how it got into the case the writer does not understand. Choat had made a contract with the defendant on terms already stated. In other words, he was a cropper on halves. The mules had gotten into *Page 591 the field accidentally, or had broken the fence rather, and gotten into the cotton. Choat had not reduced the mules to possession. He had not control of them; he had not impounded them, and was not entitled to any fees under the statute. The right to impound, if true, did not give right to prevent appellant's recapture of his mules. The right to do a thing is quite different from actually doing it. The civil statute authorizes the taking up and impounding stock running at large when stock law is in force, and after the party gets possession of or impounds stock, he may have his neighbors, as provided by statute, assess damages. But I do not understand how that question is in this case. He had not impounded the stock, and until appellant sent down after his stock had paid no attention to them. They were grazing on grass among the cotton, and deceased had refused to let the boy take them out, but he had not reduced them to possession. If deceased had obtained possession of the mules, and was holding them, possibly the question might be in the case, but the mind of the writer is not clear even upon that question under the facts of this case. These facts were treated below as constituting the relation of landlord and tenant, and the right of deceased to take up the stock grew out of that relation, and the charge was given as though deceased had taken up and impounded the stock, which entitled him to fees. I do not understand this to be a tenant contract, and in Texas the authorities all hold the other way, showing it was not. The authorities might be collated and copied at length. It will be sufficient to quote one and refer to the others, as they are all in harmony: In Rogers v. McGuffey, 96 Tex. 565, Judge Williams, rendering the opinion for the Supreme Court, makes this statement:
"McGuffey sued Rogers to recover damages for breach of a contract for the rental of fifty acres of land, alleging that he had rented the land for the year 1901, and in pursuance of his contract, broke six acres of stubble land, reasonably worth $6, and was at other expense in connection with the land in the sum of $270, and that the contract was breached on January 1, 1901. That under the terms of the contract appellant, Rogers, was to furnish the land, teams, tools, farming implements, and food for the teams, and the crops of corn and cotton were to be equally divided between landlord and tenant. He claimed the value of one-half of what he would have raised as his damages."
So it will be seen the terms of the rental contract in the instant case were practically as those in the case quoted. The question certified to the Supreme Court involved the proper measure of damages, and in the opinion the court, speaking through Associate Justice Williams, said:
"In the Capps case the court applied the measure generally considered to be applicable in cases where ordinary contracts for the renting or letting of land are broken. In such cases, this measure is applied because it in fact gives compensation for the loss actually sustained in the absence of special damages. But contracts like the one in question have additional elements. The parties entering into them stipulate for shares in the crops to be produced as the benefit to be derived from *Page 592 them. The owner of the land expects the share reserved to himself as a return for the cultivation of his land and his other outlay. The benefits expected by the other party are employment and the stipulated return for his labor, and sometimes a home for the time. To deprive him of these benefits is to deprive him of that which, in the very contract, both parties to it contemplate he shall receive. It would seem to follow necessarily that his damages should be compensation for what he thus lost. In such a contract the parties enter into a joint business enterprise and stipulate what shall be the advantages to each. When one wrongfully deprives the other of those advantages he should be required to compensate him for that which the contract stipulated he should have. The objects of the contract have a close analogy to those of a partnership and, in so far as employment for the labor of one of the parties is one of the purposes, to the contract for personal service."
This shows that this was not a rental contract in the ordinary acceptation of the term, but in the nature of a joint tenancy or partnership. In Rogers v. Frazier, 108 S.W. Rep., 727, the question is gone into more fully. That case holds it does not constitute what is termed the relation of landlord and tenant. Deceased in this case is what is termed in the books and in the decisions a "cropper." The deceased had no such interest in this property as would have debarred appellant of the right of a joint tenant or partner in looking after the business. He had an interest in the crop which would have entitled him to a damage suit either against deceased or for trespass by others. The authorities in Texas, as I understand them, both by the Supreme Court and the Courts of Civil Appeals, all go to the same extent. One other quotation perhaps it might be well to make. In Doke v. Railway Co., 126 S.W. Rep., 1195, Doke being the owner of the land, brought suit against the railroad company for the destruction of growing crops cultivated by his so-called tenants, and the tenants also brought separate suits against the railway company, and when the cases came for trial they were consolidated and the court charged the jury that, under the evidence, they would not be authorized to return a verdict in favor of the plaintiff Doke for any damage resulting from injury to crop. Passing upon this charge the court said:
"The question for us to determine is, did the plaintiff, Doke, have an interest in the crops damaged by the overflow of the land? This question is to be determined from the contract between the land owner, Doke, and the respective tenants. If he had no interest therein, the charge of the court is correct. If he had an interest in the crops, it is not correct. In the case of Horseley v. Moss et al., 5 Texas Civ. App. 341[5 Tex. Civ. App. 341], 23 S.W. Rep., 1116, this court held a contract by which the landlord was to furnish to the tenant the farm tools, team and feed to do the work in making the crop which was to be divided equally between the landlord and tenant gives the owner of the land a specific interest in the crops, and not merely a landlord's lien. In the case of Tignor v. Toney, 13 Texas Civ. App. 518[13 Tex. Civ. App. 518], 35 S.W. Rep., 881, the court of the First District held that, where one farms the land of another under an *Page 593 agreement by which he is to give the land owner a part of the crop raised on the land, he and such owner, in the absence of a stipulation in the contract otherwise providing, became tenants in common of the crops. To the same effect is the recent holding of this court in the cases of G., C. S.F. Ry. Co. v. Caldwell, 102 S.W. Rep., 461, and Rogers v. Frazier Bros. Co., 108 S.W. Rep., 727. This is in accord with the great weight of authority. 18 Am. Eng. Ency. of Law (2d ed.), p. 274. There is nothing in the opinion in the case of T. P. Ry. Co. v. Nayless, 62 Tex. 570 [62 Tex. 570], which contravenes this holding. It follows the charge was error."
If these authorities are correct, the court was clearly wrong in charging the jury as he did with reference to impounding the stock. The question was not in the case. The difficulty arose over the fact that appellant's wife and son were trying to put the mules back in the lot, which had escaped accidentally, and deceased was trying to prevent them getting the mules. Neither had possession, but both trying to secure it. It would be a curious proposition to announce that joint tenants or any other citizen of Texas, whether tenant or not, would be deprived of the right to go after his stock when they escaped from his custody and secure them, because somebody in the neighborhood might have a chance to catch them for prowling upon their land. Fees are not allowed for the escape, but only for impounding. This is confined to the party impounding the stock and only after impounding. The stock must first be caught. Such proposition as that would not strike the fair-minded man as being otherwise than legally unfair, illegal and unjust, at least it strikes the mind of the writer that way. If the proposition asserted in the charge is correct, every time a mule or horse or a cow of a citizen escapes he is debarred the right or privilege of going after his escaped property and securing it. He has, therefore, lost his right to recapture his property until some neighbor takes the stock up and puts them in a pound and compels him to pay the impounding fees, etc. Such construction of the impounding law will find no warrant in any decision anywhere that I have found as heretofore written, nor ought it be held to be the law. If so, escape of stock forfeits right of capture.
There is another question in the case. The character or reputation of deceased seems to have been an issue in the case some way, and testimony was introduced to the effect and some of the testimony went to show he was a man of peaceable disposition and along that line his reputation was good. Perhaps if it had stopped here it would hardly have been an error, but some testimony was admitted over objection of appellant as to the individual opinion of witnesses about what they knew about deceased. Objection was urged to all that character of testimony. The contention seems to be that because some evidence was introduced which possibly was legitimate, therefore they could go beyond that and prove facts inadmissible. In other words, because some testimony is admissible, therefore it is no error to admit inadmissible *Page 594 testimony. This is not correct. It would hardly be contended that a witness could testify as to his personal views of the character of a man, under ordinary circumstances at least. Witnesses could testify as to general reputation, but because they could do that did not render admissible the other inadmissible testimony.
I am firmly convinced that appellant has not had a fair trial, and that this judgment ought to have been reversed and the cause remanded.