It is again insisted by appellant that the evidence failed to raise the issue of provoking the difficulty, and hence the trial court erred in charging on that issue.
The contention naturally brings in review the entire evidence touching the issue mentioned. It was uncontroverted that appellant had filed a complaint against Cal. Word, Sr., and Cal. Word, Jr., charging them with theft of goats from him. He had procured a search warrant and the sheriff went to Word's ranch to search for the alleged stolen goats. The evidence warranted the jury in finding the following facts. Appellant and three companions appeared on the scene. Observing that they were armed Cal. Word, Jr., inquired of the sheriff if he had deputized the parties, and upon being informed that he had not young Word requested the sheriff to take charge of the firearms while they were on his premises. One of appellant's companions was reluctant to surrender his gun, saying that appellant had told him to keep it. During the controversy Cal. Word, Jr., went to the house and got his gun. Finally the sheriff took possession of all the guns, including that of Cal. Word, Jr. After an examination of the goats failed to result in finding any of Norwood's among them, Norwood said he wanted the "affair" to be peaceable, to which Cal. Word, Jr., replied: "It doesn't look like it, you coming down here with all those guns." Orville Word, an uncle of Cal. Word, Jr., at this point said, "A man with the reputation you have got, the s__ of a b____, I would carry my gun, too." Norwood asked Orville if he intended to call him a s__ of a b____, and Orville told him to "take it as he liked." The sheriff interposed here and stopped what appeared to be a threatened encounter. As Norwood and his companions were leaving Norwood again asked Orville Word about the remark the latter had made, and upon again being told to "take it as he liked," he told Orville Word "he would see him later," or "we will meet again." The transaction heretofore mentioned occurred sometime during the forenoon. About one o'clock the same day Cal. Word, Jr., and Orville Word went to the town of Burnet. Cal. Word, Jr., parked his car in front of the post office and went to get his mail, leaving Orville in the car. Appellant's car was parked near by. While Cal. Word, Jr., was in the post office appellant went to his car, *Page 414 backed it out from the curb and drove it immediately behind the Word car. When Cal. Word, Jr., came from the post office with his mail and approached his car he evidently saw appellant as he at once said to Orville, "He has got us blocked and we can't get out." Orville looked back and saw appellant, who motioned to Orville and said, "Come around here, Mr. Word, I want to talk to you." Appellant, who was on the ground beside his car, reached in the car and took hold of his gun. Cal. Word, Jr., said to his uncle, "Don't go, Uncle Orville, don't you go, he has got a gun and he will shoot you." Cal. Word, Jr., then made an effort to get his gun out of his car. Appellant shot him and Cal. Word, Jr.'s, gun fell on the ground, or on the running board of the car.
It is not intended by the foregoing recitals to convey the idea that it is a finding of this Court that the transaction occurred as stated, but to announce that there was evidence in the case which would support a finding by the jury that it did so occur. (a) Did the things which appellant said and did cause Cal. Word, Jr., to reach for his own gun? Surely the jury had evidence upon which to base such a finding. (b) Were the things which the jury may have found that appellant said and did calculated to cause Cal. Word, Jr., to reach for his own gun? What occurred at the time of the killing and the significance attached thereto must be viewed in the light of what had happened at the Word ranch a few hours earlier. That appellant's act in stopping his car immediately behind the Word car caused Cal. Word, Jr., to think the act was intentional and done to prevent him from moving his car is evidenced by what he said to his uncle. That appellant's request to Orville Word to "come here, I want to talk to you," in connection with appellant's movement to get his gun out of the car caused Cal. Word, Jr., to believe that his uncle was in danger of being killed by appellant is evidenced by the warning to his uncle not to go. In view of what was then occurring, colored by the events of the morning, prevents us from holding as a matter of law that appellant's conduct and words were not calculated to cause Cal. Word, Jr., to get his own gun in anticipation of an effort on appellant's part to kill either his uncle or himself. This leaves only one other element to be considered on the question of provoking the difficulty, viz.: (c) Were the acts and language of appellant done and said with the intent on his part to provoke an attack which would give him the apparent excuse to kill? Necessarily, the question of intent must be solved by the jury from all the facts before them. We can not say the jury was *Page 415 without evidence upon which to predicate a finding upon this issue against appellant.
The indictment against appellant was returned at a special term of the district court of Burnet County, which was convened on October 12, 1936, pursuant to the following order:
"Special Term of District Court. "The State of Texas, County of Burnet.
"In the District Court of Burnet County, Texas, Special October Term, A.D. 1936, October 12, 1936.
"Whereas, it has been reported to me that two (2) separate killings have occurred in Burnet County, Texas, since the adjournment of the last regular term of the District Court in and for said County, and that the interests of justice would be more efficiently served by the empanelling of a grand jury forthwith for the investigation of such crimes as well as for all other crimes now pending which to such Grand Jury may seem necessary: Now, Therefore, I, Lamar Thaxton, Judge of the 33d Judicial District of Texas, of which said Burnet County is a part, deem it advisable and necessary that a special Terra of the District Court in and for Burnet County, Texas, be convened for the aforesaid purposes and for the transaction of such other business and trial without jury of such cases as may properly arise. It is; therefore, ordered that a special term of the District Court of Burnet County, Texas, be now convened for the purposes aforesaid at the courthouse, same being the District Court room on the second floor of the J. H. Stapp Building (the lower floor now occupied by Neumann's Store), in Burnet, Texas, on this the 12th day of October, A.D. 1936, at 8:00 o'clock A. M., to continue in session so long as to the Judge of this court may deem necessary.
"Lamar Thaxton, "Judge of the 33d Judicial District of Texas, of which Burnet County is a part."
By a supplemental motion for rehearing appellant now urges that the foregoing order was void and did not validly convene a special term of the district court because it failed to fix any definite adjourning date; that for the same reason the order appointing jury commissioners to draw a grand jury for said special term was void, and likewise, the indictment herein was wholly void because it was returned by a grand jury selected under a void order at a void special term.
Jury commissioners were appointed, a grand jury selected, and the indictment against appellant returned into court on the *Page 416 16th day of October, 1936, and said special term was actually adjourned on said 16th day of October.
Appellant relies particularly on the holding of the Supreme Court in Hamilton, et al., v. Empire Gas and Fuel Co., 110 S.W.2d 361. The court was there dealing with an order "extending" a term of court and not with an order calling a special term of court. To our minds a very clear distinction may be drawn, and therefore, we are not called upon to express agreement or disagreement with the holding in said case. In passing, we note that from the opinion in said cause it does not appear when, if ever, the "extended" term was adjourned; whereas, in the case before us the "special term" is shown to have been adjourned on the fourth day after convening.
Article 1920, R. C. S. (Acts 1905, p. 116), regarding special terms of court, reads as follows: "Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge may convene such term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof. In the discretion of the district judge, a grand jury need not be drawn or empaneled. No new civil cases can be brought to a special term of the district court."
Article 1923, R. C. S. (Acts 1909, p. 114), provides as follows: "Whenever a district court shall be in the midst of the trial of a cause when the time for the expiration of the term of said court arrives, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. The extension of such term shall be shown in the minutes of the court before they are signed. If the term is extended as hereinprovided, no term of court in any other county shall failbecause thereof, but the term of court therein may be openedand held as provided by law when the district judge fails toappear at the opening of a term of court."
Article 1924, R. C. S. (Acts 1923, p. 25), reads as follows: "A district court in a judicial district composed of more than one county and having terms of court fixed by law in counties in which there is a city of one hundred and thirty-five thousand population, or over, according to the preceding Federal census, *Page 417 may, by an order of the judge thereof made and entered of record in the minutes of said court, have any of such terms of court in such last described counties extended for such length of time as such judge may deem advisable for the transaction of the business of such court."
Article 1925, R. C. S. (Acts 1923, p. 25), reads: "If any term of court is extended as provided in the preceding article,no term of such court as fixed by law shall fail, but sameshall be opened and held as provided by law. When a new term shall run concurrently in time and in the same county with an extended term the minutes of both such terms may be recorded together during the time such terms so run concurrently. While such new term is open, each entry made in the minute records of said court, during such time shall be presumed to be the minutes of proceedings of such new term unless otherwise shown in such minutes."
Article 200a, Section 6, R. C. S. (Acts 1927, 40th Leg., p. 230, Chap. 156), in part provided: "It shall be the duty of any district judge of any district within the Administrative District to extend the regular terms of his court, and to callspecial terms, when necessary to carry out the purposes of this Act and dispose of pending litigation. If the term be extendedas herein provided no other term of the court in such districtshall fail because of said extension, but such other terms may be opened and held as usual."
This Court has had occasion to deal with orders for special terms of court in a number of cases, but in none of them was the exact question here presented involved, and most of them were under statutory enactments very different from those now in force, hence the opinions in said cases are of no practical value in the present controversy.
From the language employed in the acts of the Legislature heretofore quoted, and italicized by us, it seems clear that the Legislature had in mind the fact that the "extension" of a term of court might and usually did overlap the convening date of a regular term, and hence specifically provided that such "extended" term should not operate to cause a failure of such regular term, whereas no such contingency was contemplated where a "special term" was convened, the reason evidently being that no necessity existed for a special term if the regular term for such county was in session. It is true that a necessity might arise for the extension of a special term to conclude the trial of a cause, and such extension might overlap the convening *Page 418 date of a regular term, but then it would be necessary to deal with an "extension" order under the statutes quoted, which point is not here present. We are inclined to the view that where an order for a special term of court for a county is made and no adjourning date is fixed, but it does not appear clearly from the order itself that said special term was intended to overlap a regular term, that said special term would terminate by operation of law when the time for convening the regular term in said county arrived. This being our view, we hold against appellant's contention that the special term was void because no adjourning date was fixed in the order calling such special term, and against his contention that the indictment against appellant was likewise void.
Appellant's motion for rehearing is overruled.