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not deem it of sufficient importance to re- Case, 36 Tex. Cr. R. 88, 35 S. W. 668, is to verse. No special charge was asked, and the effect that, where the accused was on perhaps it was a legitimate argument.

trial for robbery, where it was made a On cross-examination, appellant testified ground of the motion for new trial that the that the reason he did not report the shoot- jury had received other testimony after their ing at him on Friday night before the homi- retirement, and it appeared that the newscide on Saturday evening was because he paper containing an announcement that dewas afraid and excited, and he did not know fendant was on trial for the robbery, giving when he would be shot. Objection was urg- a statement of the transaction, and that one ed that a party who has been shot at is not of the defendants had already been tried required by the law to report that fact to and convicted, and the accused was under officers; that it is irrelevant and immaterial, indictment for murder in one county, and and calculated to prejudice him in the minds other minor offenses, and the juror made an of the jury. How far it may be the duty affidavit that he did not read the article unof a party who has been assaulted, waylaid, til they had agreed upon defendant's guilt, and shot at to report to the officers is a mat- and none of the other jurors had read it, so ter that we do not propose to discuss here, far as he knew, and that after reading it he and it is not necessary to discuss it. But agreed to a verdict of five years less than the question was a proper one.

It tended to he had before fixed upon, and that the artiaffect the credibility of the witness, and his cle did not influence his verdict, it was honest belief that he was actually shot at held that there was no prejudice, and the the night before. It was a fact for the jury conviction was not disturbed. To the same to take into consideration in passing on those effect is Williams v. State, 33 Tex. Cr. R. questions.

128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. In the motion for new trial, appellant sets Rep. 21, and Munos v. State, 34 Tex. Cr. R. up the misconduct of the jury. One of the 472, 31 S. W. 380; McDonald v. State, 15 Tex. jurors (Spurlock) testified that after the jury | App. 493. The statute only prohibits the had retired there was something said about allusion in the argument to a previous conthe former trial of appellant. One of the viction of the appellant in the same case aftjurors asked how the other jury stood. Juror er new trial awarded. So it would seem that Zimmerman answered, “Eight to four," or in cases like this, where there had not been "Ten to two," but that this had nothing to a previous conviction for the same offense, do with the case, and the jury could not con- it is a matter to be judged from all the ensider it. This witness was not positive vironments of the action of the jury, and its whether Zimmerman used the words “ten to probable effect upon their minds. There are two" or not, but he said some one did use only two jurors who testify in regard to the the words "ten to two," and be understood matter occurring in the jury room, and we do that the ten to two jury hung on the question not believe it is shown that any injury reof either penalty or degree; that he under- sulted to him from their statements. The stood further that these were all for convic- other jurors were present, but were not tion, but differed as to penalty. Up to this placed on the stand by either side. As pretime this juror further says that they had sented, we are of opinion there is not such disagreed as to the degree of the offense; a showing as will require this court to rethat one of the jurors was for manslaughter. verse the judgment. Zimmerman was sworn, and testified that The motion for new trial further shows he was a juror in this case, and that, after that the district judge instructed each jury the jury had retired and taken a vote, some for the week during the term, inasmuch as one asked "how the other jury stood, and some of the cases to be tried before them [he] replied, 'Eight to four,' but that we had been tried more than once, not to discould not consider that, as it had nothing cuss the result of any previous trial; that to do with this case. There were three or this would be misconduct; that, if they were four, or maybe five or six, jurors present guilty of misconduct, not to make affidavits when this happened." This was all that the for lawyers in the case; that such affidawitness said. He did not know how the jury vits were ex parte, and not to make them, stood as to conviction or acquittal. That he but to tell it, if any such misconduct hapsaid nothing in regard to the former trial, pened, and talk to the lawyers on both sides except as to how they were divided. He of the case about it freely, and then appear himself said nothing about the jury stand- on the witness stand, where the court could ing ten to two. No such an expression was protect them, and they would not get into used. It was not used in his presence or at any tangle about the matter, but not to make that particular time and place. It was held any affidavits. This was the statement of in Morrison's case, 39 Tex. Cr. R. 519, 47 the judge under oath. The court qualifies S. W. 69, that the mere announcement in this bill of exceptions by stating that the the jury room that defendant had been pre- court gave defendant process for each of the viously convicted, and his punishment as- 12 jurors, and set the motion for new trial sessed at 20 years in the penitentiary, would for a certain day, that he might have all of not constitute reversible error, unless some them present, and that appellant did not see prejudice was shown to appellant. Moore's proper to put them on the stand. The court

mixed charge of real and apparent danger. The case made by appellant was one of apparent danger. We do not agree with the contention that apparent danger was not sufficiently given. The charge submits the entire trouble from the standpoint of appellant; that is, as to how he viewed the facts and the actions of deceased at the time he fired the fatal shot. In fact, we think the charge rather favorably presents the law than otherwise.

Finding no reversible error in the record, the judgment is affirmed.

enjoined on the jurors not to make ex parte affidavits simply for their own protection, and not to deprive defendant of any right, as they were told, first, not to do wrong; and, second, if they did, not to conceal that fact, but tell it to counsel upon either side, and to swear truthfully about it before him (the judge) on the motion for new trial. Such is the bill as qualified. Subdivision 8 of article 817, Code Cr. Proc., is as follows: “Where through the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial, it shall be competent to prove such misconduct by the voluntary affidavit of the jurors, and the verdict may in like manner in such cases be sustained by such affidavit.” Article 821, Code Cr. Proc., provides: "The state may take issue with the defendant upon the truth of the causes set forth on the motion for new trial, and in such case the judge shall hear evidence by affidavit or otherwise and determine the issue." It seems to be largely a question of practice as to how the matter of the misconduct of the jury shall be brought to the attention of the court, and how the misconduct shall be shown. The statute (article 817, subd. 8, supra) provides it may be by affidavit pro and con; article 821, that the state may meet the issues of the causes by affidavit or otherwise, and the case on this issue thus determined. While it is safest always to follow the language of the statute or its commands in regard to this question of misconduct, still the mere fact that affidavits were not made in obedience to the prior instructions of the court would not necessarily require reversal of the judgment, if the facts were otherwise produced, or if the opportunity was a fforded, and the accused declined to produce the evidence. The ultimate effect and intent of these statutes are to inform the court with the sworn statements, either written or verbal, of the facts attending and manifesting the misconduct. This court would not feel called upon to reverse a judgment where the facts have been adduced or tendered for introduction, if declined simply because they were verbal, and not set out in affidavits. The essential matter is the information for the benefit of the trial court, and, in case of its rejection by that court or the overruling of the motion, then for the inspection of this court on appeal. We do not see, under the facts, how appellant has been injured. The jurors were all brought in and tendered accused, and two of them placed upon the witness stand, and their testimony elicited. He declined to introduce the remaining ten. We do not believe the testimony of these jurors would have been any more cogent or truthful in affidavit than when detailed verbally under oath. There is no such error in this matter as requires a reversal of the judgment.

The charge of the court is criticised in regard to self-defense because it is an ad

CRAIGER v. STATE. (Court of Criminal Appeals of Texas, Oct. 19,

1904. On Rehearing, June 24, 1905.) 1. HOMICIDE-INSTRUCTION-SELF-DEFENSE.

Where the evidence on a prosecution for homicide more cogently showed that the difficulty was brought on by deceased than by defendant, and the court in its charge limited the right of self-defense with provoking the difficulty, defendant was entitled to a charge the converse thereof. 2. SAME.

On a prosecution for homicide, where the facts that deceased had followed defendant and had whistled at his horse were but two of the facts which led up to the main facts of the trouble, a charge on self-defense that specially mentioned those facts as not justifying defendant in taking the life of deceased was erroneous, under the statute expressly prohibiting the court from giving a charge on the weight of testimony. 3. DEADLY WEAPONS.

The bare fact that a wound inflicted by a weapon produced death is not conclusive that it was a deadly weapon.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, 88 5, 10, 83, 119.] 4. SAJE.

Pocketknives are not per se deadly weap


[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, 88 5, 16, 83, 119.) 5. HOMICIDE-INSTRUCTION-Code.

On a prosecution for homicide, where the killing was done with an old broken-handled pocketknife which was used by defendant on a sudden trouble coming up between him and deceased in regard to insulting conduct of deceased towards defendant, and defendant only used the knife after being struck by deceased, and inflicted but one wound, defendant was entitled to have given in the charge Pen. Code, art. 717, providing that the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending, and that, if the instrument be one not likely to produce deathi. it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, $ 595.]

Brooks, J., dissenting.

Appeal from District Court, Angelina County; Tom C. Davis, Judge.

Artie Craiger was convicted of murder in the second degree, and he appeals. Reversed.

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E. J. Mantooth, W. J. Townsend, I. D. The charge of the court in the main is an Fairchild, and John F. Weeks, for appellant. admirable presentation of the law of murder O'Quinn & Robb and Howard Martin, Asst. in the first and second degrees, manslaughter, Atty. Gen., for the State.

and self-defense. The court also properly

applied the law applicable to the imperfect BROOKS, J. This conviction is for mur- right of self-defense, telling the jury, in subder in the second degree; the punishment as- stance, that, if defendant provoked the difsessed at five years' confinement in the peni- ficulty with intent to kill, he would be guilty tentiary.

of murder; or if he provoked the difficulty The evidence for the state, in substance, without the intent to kill, he would be guilty shows that deceased, Henry Falvey, in com- of no higher offense than manslaughter. pany with Tom Dubose and others, was The charge of the court, as suggested by the standing on the gallery of deceased's father, Assistant Attorney General, seems to anwho was running a store at the town of nounce the law as laid down by this court Burke, when defendant passed, riding a in Franklin v. State, 30 Tex. App. 628, 18 S. horse; that Tom Dubose gave a derisive W. 468, and Id., 34 Tex. Cr. R. 286, 30 S. whistle, directed at defendant and his horse. W. 231. There are various criticisms of the This enraged defendant, and he stopped, and charge of the court, but a careful reading asked the parties on the gallery if they had of the same demonstrates they are not well anytbing against his horse or himself. Re- taken, and do not present reversible error. ceiving no reply, defendant went a short dis- However, we deem it necessary to pass on tance, and after a little while turned and one objection urged as an erroneous omission bitched his horse near the store of Meeks, in the charge. Appellant insists that the went into the store, and was looking at a court should have charged articles 717 and drummer display his goods. Deceased and 719, Pen. Code 1895. Under article 51, Pen. several of his companions who were on the Code 1895, the intent is presumed whenever gallery of his father's store came across to the means used is such as would ordinarily the store where defendant was. After re- result in the commission of the forbidden maining there a few moments, defendant act. Under article 717, if the instrument be called deceased out on the gallery, with the one not likely to produce death, it is not to statement that he wanted to see deceased. be presumed that death was designed, unless, When deceased reached the gallery, defend- from the manner in which it was used, such ant asked deceased what he was whistling intention evidently appears. As stated in at his horse for. Deceased denied that he Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. had done so, but stated that Tom Dubose 361, we have the following principles an(who was then in the Meeks store) did the nounced under the provisions of this article: whistling. Thereupon Dubose ran behind the First, that the weapon or means used must counter in the store. Defendant first asked possess the quality of a deadly weapon withwhere Dubose was, and, when informed of out regard to the manner in which it is used; the fact, turned upon deceased and applied second, though not deadly, the manner of its various vile epithets, such as "liar" and "son use must show an evident intention to kill. of a bitch," stating deceased did the whist- In other words, the character of the weapon ling at his horse. Deceased picked up a piece cannot be fixed or determined by the manner of white pine plank and proposed to resent of its use. It must ordinarily be a deadly these indignities, and at that juncture his weapon per se to warrant a presumption arisbrother, J. C. Falvey, interfered and stopped ing from its use; or, if not such a weapon, the difficulty. A moment thereafter, deceased the intent to kill must evidently appear from baring secured another piece of plank, told the manner of its use. Now, applying the defendant that he would not repeat the in- principles of this article to the facts of this sults he had offered him, which being done, case, we hold that the weapon may be condeceased struck defendant; defendant grab- ceded not to be per se a deadly weapon, since bed deceased by the arm and stabbed him the length and character of the same is not with a pocketknife, which wound penetrated disclosed; but we hold that the intent to kill deceased's heart, and he died in a few evidently appears from the manner of its use, moinents. This is in substance the state's and hence the provisions of article 717 are case. Defendant testified, in substance, to a not required to be given in charge to the complete case of self-defense, which is to jury, as the issue thereby required to be some extent supported by his witnesses. De- charged is not raised by the evidence, to fendant further testified that the knife which wit, a lack of evident intent to kill. The inficted the injury "was an old knife, with facts, as collated above, show that appellant one handle nearly off; and you could just provoked the difficulty, for, as he testifies, he throw it open and shut. It would stand open had had previous difficulties with deceased: if you would hold it straight, but if you held that deceased had provoked him on many ocit the least bit slanting, it would fall shut. casions; and here upon the scene of the killThe back spring was broken." This is all ing he had a knife drawn, and, as soon as the description we find in the record of the his outrages and indignities to deceased had kuife

provoked deceased to resent it, he grabbed 88 S.W.-14

deceased by the arm and plunged the knife ment, and now conclude that it should be into his heart, from which he died instant- reversed. The substance of the evidence is ly. As laid down by this court in Shannon that deceased, Henry Falvey, in company v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 with Tom Dubose, Leonard Dunn, Wright Am. St. Rep. 17, defendant had a right to ap- Dunn, and Grover Dunn, were on the galproach deceased and ask him why he offered lery of the store belonging to the father of him an dignity, but this was not evidently deceased. J. C. Falvey, a brother of dethe intent and purpose of defendant in call- ceased, was interested in the store in some ing deceased out on the gallery, since, the way, perhaps as clerk. Appellant had been moment deceased denied offering appellant in Falvey's store for the purpose of purany indignity, he cursed and abused him, and chasing some nails. Failing to find what he would take no character of explanation, al- wanted, he left, went to his horse, bitched though deceased stated that the party who about the street of the little town, mounted did offer the indignity was then in the house. him, and rode by the store, going in the diThis being true, the intent to kill, the means rection of another store, for the purpose of and manner used to accomplish it, and the purchasing the nails. Grover Dunn testified whole surroundings indicate clearly that ap- that, as appellant passed, Tom Dubose gave pellant did have the evident intent to kill at a derisive whistle. Under his testimony, he the time he made the felonious assault upon was the only party whistling at defendant deceased. Article 719, Pen. Code 1895, em- and his horse. Tom Dubose, Leonard Dunn, bodies the law of a case in which there was and Wright Dunn testified that Tom Dubose no intent to kill, and when the homicidal and deceased whistled. There had been preact is divested of an evil or cruel disposition. vious trouble betwen deceased and appellant. The facts of this case do not present any Two personal troubles are mentioned by the phase of this statute, and hence the court did witnesses. The testimony makes it certain not err in charging either article 717 or arti- that appellant was the subject of derision cle 719, as insisted by appellant. For a dis- and practical jokes of one or more of these cussion of this question, see Honeywell v. young men; that he was not very bright inState, 40 Tex. Cr. R. 199, 49 S. W. 586; Per- tellectually; that they made him the subject rin v. State, 78 S. W. 930, 9 Tex. Ct. Rep. of their derision on several occasions, until 533; Baker v. State (Tex. Cr. App.) 81 S. W. it had become irritating and annoying to him; 1215. The latter case in most, if not all, of that shortly after appellant passed Falvey's its facts, is like the case at bar. The only store, going in the direction of the store of difference we discover is that in the Baker Weeks & Powell, these young men left FalCase the length of the knife blade is shown vey's store, and went to where appellant was. to have been 278 inches, while the length of En route they were heard to say, “Let's go the blade is not shown in this record. How- over there; we aren't afraid of him." Coyle ever, the whole tone and trend of the evi- saw these boys en route, and requested them dence shows that appellant used a deadly not to go over there and raise any trouble or weapon, and had the evident intention to have any trouble. However, they went; and kill at the time be inflicted the deadly blow. appellant says that they came over there,

The last insistence of appellant is that singing and laughing at him. Just after they the court erred in not granting him a new entered the store of Weeks & Powell, appeltrial on account of the misconduct of the ju- lant called deceased out on the gallery, and ror George Manley. The misconduct consists, asked why he was whistling and laughing, as appellant alleges, in the juror on his voir and making fun of him and his horse. Dedire suppressing a preconceived ill will ceased denied that he was the party who had against appellant. To sustain this conten- whistled at defendant and his horse as he tion, appellant attaches the affidavits of sev- passed Falvey's store. From this point foreral parties tending to sustain him. These ward the testimony varies as to the immeaffidavits were controverted by the state, and diate subsequent acts and words. The state issue thereby joined, which issue the court proved that, when deceased denied he whisdecided against appellant. Under the au- tled at appellant and his horse, appellant thorities of this court, we are not called up- called him a damn liar. Deceased reiterated on to review the decision of the court below in similar language. Appellant jerked or got in the matter. Belcher v. State, 37 S. W. out his knife, and deceased grabbed the 428; Cockerell v. State, 32 Tex. Cr. R. 585, board, variously described, but it was of suf25 S. W. 421.

ficient size and dimensions to inflict a serious No error appearing in the record, the judg- blow. At this point J. C. Falvey (brother ment is affirmed.

of deceased) took the board away from de

ceased, and he then got another board to DAVIDSON, P. J., absent.

use in the difficulty, when appellant inflicted

one blow with a pocketknife, which termiOn Rehearing.

nated fatally. Appellant's theory of the DAVIDSON, P. J. We have carefully re- trouble, as shown by the testimony, is that viewed this record in the light of the mo- appellant called deceased out for the purpose tion for rehearing, and are of the opinion of settling the matter amicably, and that, that there was error in affirming the judg- | when he asked him why he bad used his insulting whistle and other conduct towards would be such aets upon the part of the dehim, deceased said he had not done so. Ap- ceased, or words coupled with his acts, as pellant insisted that he had. He then called were reasonably calculated to produce in the appellant a liar, or a damn liar, and grabbed mind of the defendant a reasonable expectaa board and struck him with it on the hip. tion or fear of death or serious bodily injury." That J. C. Falvey then interfered, and de- Exception was reserved to this charge as ceased kicked a board from a box setting on being argumentative and on the weight of the gallery, grabbed that, and, as appellant the testimony. This was singling out the was turning to go away, deceased ran in fact that deceased followed accused and had front of him with it, and was about to strike whistled at him and his horse, and charged him again, when he jerked his knife from upon the weight and effect of those two facts. his pocket, and struck one blow; that J. C. This the court should not have done. While Falvey then expostulated with them, where- these facts may not have justified appellant upon he ceased and went away. The only in taking the life of his adversary, however, description of the knife given is: "It was an they were but two of the facts mentioned in old knife, with one handle nearly off; you connection with it which led up to the main could just throw it open and shut. It would facts of the trouble which occurred on the stand open if you would hold it straight, gallery. By this line of reasoning, the charge but, if you held it the least bit slanting, it may have and doubtless did impress the would fall shut. The back spring was jury with the idea that the court believed broken." This the only description given these were the only facts in the case relied in this record of the knife which was used by upon by appellant, and, in fact, practically appellant, and with this he inflicted one limited the consideration of the right of selfstab.

defense to those two facts. It is not the Various and sundry exceptions are reserv- province of the court to charge on the weight ed to the charge of the court. The charge of the testimony. The jury are the exclusive limits the right of self-defense with provok- judges of the credibility of the witnesses, ing the difficulty. Under this state of facts and the weight to be given their testimony. it is seriously questionable whether or not The statute expressly prohibits the court this issue was in the case. Perhaps it may from giving a charge on the weight of testihave been brought within this rule by the mony. state's testimony under the decision of Polk As before stated, appellant requested the v. State, 30 Tex. App. 657, 18 S. W. 466, con- court to submit the issue that if deceased cede that it was, then it was clearly incum- provoked the difficulty at Weeks' store, and bent upon the court to charge the converse that appellant believed from the acts and of it, because the evidence more cogently declarations of deceased that it was his purstates that the difficulty was brought on by pose to provoke a difficulty and do him serideceased, and not by appellant. This ques- ous bodily harm, and that, while deceased tion was admirably elucidated in Shannon v. was in the act of inflicting serious bodily inState, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. jury or was about to inflict serious bodily St. Rep. 17. Appellant unquestionably had injury upon appellant, he (appellant) had the the right in a peaceable manner to arm him- right to resist, and if, under those circumself and to seek a meeting with the party stances, he killed, defendant would not be who had insulted him, on a peaceful mission guilty. Again, special instruction was to endeavor to settle the troubles between quested to the effect that, if the jury should them, and, if deceased made an attack upon find from the evidence that deceased folhim or provoked a difficulty, the further right | lowed appellant from Falvey's store to to defend himself; but in this case appellant Weeks' store for the purpose of provoking did not arm himself. It was a casual meet- a difficulty with him, and, in pursuance of ing, so far as the record shows, and, from the such design, deceased, not in the act of destandpoint of appellant, and perhaps from fending himself, procured a piece of plank the record, an unnecessary insult on the part and struck defendant, and that defendant of the young men, one of whom was de- then cut and killed Falvey, believing at the ceased. They evidently followed him from time he was in danger of serious bodily inthe store of Falvey to the store of Weeks & jury from Falvey, he would be entitled to Powell. It was shown that deceased was of an acquittal. These charges were refused. a quarrelsome nature. Special charges were They should have been given. asked covering appellant's side of this ques- Exception is reserved to the charge betion, which were erroneously refused. The cause articles 717 and 719 of the Penal Code court charged the jury: "In passing on the of 1895 were not given in the charge to the question as to whether or not defendant is jury. Article 717 reads as follows: "The injustifiable, the facts and circumstances must strument or means by which a homicide is be viewed from the standpoint of the defend- committed are to be taken into consideration ant. Defendant would not be justified in in judging of the intent of the party offendkilling deceased because deceased had fol- ing; if the instrument be one not likely to lowed him, or because deceased had whistled produce death, it is not to be presumed that at defendant's horse. The only act that death was designed, unless from the manner would justify defendant in killing deceased in which it was used such intention evidently


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