Appellant was indicted, tried and convicted for the murder of Harrison Choat, alleged to have been committed on June 26, 1914. The indictment was preferred July 9, 1914. The indictment is in the approved form and follows the statute. Appellant made a motion to quash it on many grounds. In submitting the case he did not urge the insufficiency of the indictment and in his brief he does not argue the question or cite any authority. We deem it unnecessary to state the various objections. The court did not err in overruling his motion. The jury fixed his penalty at twenty-five years in the penitentiary.
The killing occurred on June 26, 1914. Appellant was arrested and placed in jail at once. There are two District Courts for Hunt County, — one, the Eighth, of which Judge Pierson is presiding judge, the other the Sixty-second, of which Judge Dehoney is the presiding judge. The Eighth District Court was not in session, the Sixty-second was. There was no grand jury then in session. On June 30th Judge Dehoney entered the proper order for the summons of a grand jury to convene on July 2nd. On the latter date he duly organized the grand jury. They investigated the case, and one week later, on July 9th, preferred the indictment herein. On July 10th the court entered an order to have properly summoned 150 persons as special veniremen to try the case and set the case for trial for July 20th. On the latter
date appellant made a motion for a continuance which was granted. Thereupon Judge Dehoney transferred the case from the Sixty-second to the Eighth District. Soon thereafter appellant sued out a habeas corpus for bail, before Judge Pierson, who, after hearing the evidence, denied bail; appellant appealed, and on October 14, 1914, this court held he was entitled to bail and fixed his bond at $7500. (Ex parte Barnett, 74 Tex. Crim. 136, 169 S.W. Rep., 1165.) He gave bond and was at liberty thereunder until this trial, which occurred in November, 1914, the verdict being rendered November 20th.
1. At the proper time before the trial appellant made a motion to change the venue based on both statutory grounds. (C.C.P., art. 628.) His affidavit therefor was supported by the affidavit of a large number of others. The affidavits were very brief but follow the statute, and were to the effect that there existed in Hunt County so great a prejudice against defendant that he can not obtain a fair and impartial trial in said county. And that there is a dangerous combination against him, instituted by influential persons, by reason of which he can not expect a fair trial. No fact or facts are given upon which they predicate their affidavits.
The State controverted appellant's application and affidavits. This controverting affidavit was signed and sworn to by the district attorney, the county attorney, Mr. Leddy, who was specially employed to prosecute, and three other citizens. They specifically denied each ground of appellant's motion. In addition, they swore that the said compurgators of defendant have not sufficient knowledge and acquaintance with the people throughout said county with reference to the matters contained in their said affidavits and have not sufficient information with reference to the matters in said motion, as to justify their statement that prejudice exists in said county against defendant, or that a dangerous combination of influential persons exist therein that would prevent him from obtaining a fair and impartial trial in said county; that each and all of said compurgators were wholly unacquainted with the feelings and conditions of the sentiment in said county in relation to this case, and that none of them have been over Hunt County sufficiently to form a correct idea with reference thereto and are mistaken with reference to all the matters set up and contained in their said affidavits. That said county was some forty miles square; that there were more than 6000 qualified jurors therein, a large majority of whom knew nothing with reference to the facts of the case and have no prejudice whatever against defendant; that the scene of the homicide was in the extreme southeast corner of the county; that the remaining portions were remote therefrom, were thickly settled with qualified jurors and that the communication with said portion of the county with other portions were not frequent; that a large majority of the citizens of said county had no actual knowledge of the facts and the only information a large number of the jurors had in regard to the case was based upon rumor or hearsay and that there are hundreds of qualified jurors who have no opinion whatever as to the guilt or innocence
of defendant; that said case created no great excitement in the county outside of the immediate community in which the homicide occurred.
The statute (art. 628, C.C.P.) prescribes that a change of venue may be granted on the written application of the defendant supported by his own and the affidavits of at least two credible persons, residents of the county, for either of the following causes, "the truth and sufficiency of which the court shall determine": (1) That there exists in the county so great a prejudice against him that he can not obtain a fair and impartial trial. (2) That there is a dangerous combination against him instigated by influential persons by reason of which he can not expect a fair trial.
Article 633 prescribes that the credibility of the persons making affidavit for change of venue "or their means ofknowledge," may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined by the judge and the application granted or refused as the law and the facts shall warrant.
We think it clear that the controverting affidavit of the district attorney, county attorney, and others above stated, did attack the means of knowledge of appellant and his compurgators, and unquestionably raised the issue which the statute says "shall be tried and determined by the judge." So that appellant's contention that the issue was not properly raised so as to require him to introduce evidence is not well taken. Lemons v. State, 59 Tex.Crim. Rep..
2. The court thereupon heard the evidence on said motion for change of venue. A large number of witnesses testified on both sides and, as is usually the case, the testimony of some would support appellant's contention, while the testimony of others would contradict it. There is a statement of facts in the bill of all this evidence. It is very voluminous. We have read and considered it all. We see no necessity for copying it, or stating it to any extent.
Mr. Branch, in his Criminal Law, section 201, states the correct rule and cites several cases so holding, thus: "Unless it is clear that the trial court has abused his judicial discretion, his action in refusing a change of venue will not require a reversal. Tubb v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 858; Bohannon v. State, 14 Texas Crim. App., 271; Cox v. State, 8 Texas Crim. App., 254; Grissom v. State, 8 Texas Crim. App., 386; Clampett v. State, 9 Texas Crim. App., 27; Martin v. State, 21 Texas Crim. App., 1; Magee v. State, 14 Texas Crim. App., 366; Dupree v. State, 2 Texas Crim. App., 613; Noland v. State, 3 Texas Crim. App., 598; Grissom v. State, 4 Texas Crim. App., 374."
As said by this court, through Judge Ramsey, in the Tubb case, supra: "Of necessity in respect to a question of this kind much ought to be left to the discretion and sound judgment of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue
unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above stated by Judge Hurt in the case of Gaines v. State, 37 S.W. Rep., 331," citing some of the cases cited by Mr. Branch above, and others.
The trial judge, in approving the bill of exceptions, containing all the evidence heard on the motion for change of venue, did so with the following explanation:
"In this case a venire of 150 men was summoned to try this case. But eighty-five members of said venire were examined. Out of this number two were discharged on account of their physical condition and fifteen disqualified themselves by stating that they had conscientious scruples in regard to the infliction of death as a punishment for crime, making only sixty-eight veniremen whose qualifications were tested in order to secure a jury in this case. Out of this number twenty-six were challenged and excused by the court for cause. After the State and the defendant had exhausted their peremptory challenges, the next juror, J.M. McCombs, the last juror chosen, was not challenged for cause, said juror stating that he had formed no opinion whatever as to the guilt or innocence of the defendant. Every juror who stated that he had any opinion whatever as to the guilt or innocence of the defendant was excused by the court. Therefore, not a single objectionable juror was forced upon the defendant.
"Of the jury selected to try this case but one member lives south of a line drawn from the east line of Hunt County to the west line, passing through Greenville, the killing having occurred in the extreme southeast portion of the county and this juror lived near Quinlan in a different justice precinct from where the homicide occurred and stated upon his examination that he had not heard the facts of the case discussed and had no opinion whatever as to the guilt or innocence of the defendant. Of the jurors selected to try the case two lived north of Celeste, a town situated about ten miles north of Greenville and about thirty miles from Lone Oak. Two of the jurors lived in the Whiterock community, about ten miles from Greenville and about thirty miles from Lone Oak. Two of them lived in the Commerce community about twenty miles northeast of Greenville, and four members of the jury lived in the City of Greenville, and three of these testified that they were acquainted with the defendant and his father and had known them for some time. One juror lived near Wolfe City, about twenty miles north of Greenville and about forty miles from Lone Oak. All of the jurors accepted to try this case indicated from their examination that they were fair, impartial and unbiased jurors." Lone Oak was where the homicide occurred.
And as further said by Judge Ramsey in the Tubb case, we say of this: "After a careful inspection of the record, we do not believe that we could or would be justified, in view of the action of the trial court in conflicting evidence, in reversing the judgment on the failure of the court to grant a change of venue."
Appellant has a large number of bills of exceptions, the numbers
extending as high as seventy-one. However, some forty-two only are contained in the record. We presume appellant abandoned the others. Several of those in the record are on the same subject. It will not be necessary to take up each separately, but we will take up and discuss the questions raised by them.
3. While the jury was being selected from the special veniremen summoned, when the names of three of them were reached, it was shown that they were out as jurors upon the consideration of another case. Appellant demanded that they then be brought in and passed upon. The court refused this and required the other names on the list to be called and the trial proceeded with. However, the jury on which these jurors were engaged returned a verdict the next day and thereupon they were examined and passed upon in this case. At another time another name on the list was reached one evening; this venireman had been in attendance until a short time before his name was called. Presuming that his name would not be reached that evening, he left, but returned the next morning. The next morning the court had him called as a juror and examined and it developed that he had such physical infirmities as to render him unfit as a juror and the court excused him. To the excusing of him appellant did not object. When the name of another juror was reached on the call, because of his sickness, the court had excused him until the next morning, when he returned. He was then called, examined and challenged by the State. The court, in qualifying the bills as to these jurors showed that at the time their names were called and he declined to postpone the case until their attendance could be had, and that when they did return and were examined, the appellant had a number of peremptory challenges left. In fact, that he did not exhaust his peremptory challenges until the twelfth juror was to be selected and that he was accepted without any challenge and he and no other was forced upon appellant as an objectionable juror.
It is the settled law of this State that our statutes with regard to the formation of the jury in capital cases are directory and not mandatory. Under the many decisions of this State none of the irregularities complained of by appellant show any reversible error. Murray v. State, 21 Texas Crim. App., 466; Jackson v. State, 30 Texas Crim. App., 664; Hudson v. State, 28 Texas Crim. App., 323; Habel v. State, 28 Texas Crim. App., 588; Roberts v. State, 30 Texas Crim. App., 291; Bizzell v. State,72 Tex. Crim. 442, 162 S.W. Rep., 861. For other cases see secs. 725-726 of Judge White's Ann. C.C.P.
4. Appellant has several bills complaining that the court committed error in overruling his challenge for cause for several of the veniremen. Taking the bills together with the court's explanation and qualification, none of these show any error.
5. Appellant has several bills to the testimony of Mrs. Nora Choat, widow of the deceased, in substance telling of the rental contract between appellant and deceased and the various matters that arose out of it in its execution. Briefly stated, the evidence shows that early in
March, 1914, deceased rented a certain fenced fifteen-acre field from appellant on the halves, to be planted and cultivated in cotton. Not a great while afterwards trouble arose between appellant and deceased over the teams and tools with which deceased was to be furnished by appellant to work and cultivate the field. Deceased claimed that appellant was not furnishing these as contracted for. Appellant claimed that he was and their differences resulted in a fight a month or more before the killing. The evidence was that animosity and ill-will existed between these parties from that date until the killing and various threats, one against the other, were shown. The immediate killing occurred early in the evening of June 26, 1914. Deceased and his wife were at work in their field at this time chopping cotton. At the noon hour, while appellant and all his family were asleep, appellant's mules broke out, or jumped out of his lot into deceased's field where he and his wife were at work. The deceased sought to hold them under the stock law. The appellant first sent his sixteen-year-old son into deceased's field to get the mules. Deceased made him go back out of the field and told him to stay out, he "would take care of the mules." He went back and reported to his father. Thereupon, after consultation between appellant and his family he sent his wife and small boy, eleven years old, into the field to take the mules anyway. Appellant armed himself with a Winchester rifle and his sixteen-year-old boy armed himself with a shotgun and each followed appellant's wife and little boy, the appellant on the west of deceased's field and his sixteen-year-old boy on the east side. Before deceased notified appellant's sixteen-year-old son that he could not get the mules, deceased sent his wife to the house for a rope with which to tie them. Appellant saw deceased's wife return from her house, passing right by him, they speaking, she with the rope, going in the direction of deceased with it. When Mrs. Barnett and the little boy passed down through the field to get the mules and drive them out of deceased's field into appellant's lot, the State claimed, and had ample evidence to support its contention, that deceased followed them down where the mules were and with his hoe motioned towards the mules to keep them back and to keep Mrs. Barnett from getting them. Appellant's contention is, and there was ample evidence to support it, that deceased assaulted and attempted to strike Mrs. Barnett with the hoe and then followed her up some distance for the same purpose. The State's contention, as stated, was that deceased at no time assaulted or attempted to assault Mrs. Barnett, but that he used, and motioned with the hoe for the purpose of controlling the movements of the mules and not otherwise.
In our opinion the evidence of Mrs. Choat, objected to, was properly admissible. Neither the court, nor jury, could have properly understood the case and the facts bearing upon the immediate killing nor the motives and intent of appellant and deceased without being informed of the various matters shown by Mrs. Choat's testimony objected to. We think it unnecessary to go into a detail of these matters.
6. There are some other complaints to some other testimony of
Mrs. Choat, but as appellant's bills are explained and qualified by the court, we think none of them show error. Some of these bills to her testimony and that of some other witnesses complain of her and they, being permitted to testify that the next morning after the killing in the evening, she pointed out to these witnesses on the ground, the location of Mrs. Barnett, appellant, deceased and herself, together with the movements of the mules, and Mrs. Barnett's little boy, who was following one of the mules. From this data these witnesses made measurements and drew a map which was used for illustration and to make their testimony and the testimony in the case more intelligible and better understood by the court and jury. We think this testimony was pertinent and admissible. Weaver v. State, 43 Tex. Crim. 340; Knowles v. State, 44 Tex.Crim. Rep.; see also Pinkerion v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 87; Batson v. State, 38 S.W. Rep., 48; Neely v. State, 56 S.W. Rep., 625; Carter v. State, 39 Tex.Crim. Rep.; Matthews v. Thatcher, 76 S.W. Rep., 61; St. Louis, etc., R.R. v. Alexander, 115 S.W. Rep., 648; Hart v. Railroad, 12 A. E. An. Cas., 706, and note.
7. As qualified, appellant's bill to the court's not permitting Jimmie Barnett to answer a question, shows no error. Nor does his bill show any error to the questions asked by the State, on cross-examination of Padgitt Barnett. Neither does appellant's bill to the reintroduction by the State of the appellant himself for further cross-examination by the State, show any error. This is always permissible. Branch's Crim. Law, see. 878, and cases cited by him.
8. Appellant introduced evidence of threats by the deceased directed against him and his wife also. The court properly submitted appellant's self-defense and defense of his wife, based on threats. Under such circumstances, under the terms of the statute (art. 1143, P.C.) and the many decisions of this court, the general character of the deceased as to whether or not he was a violent or dangerous man, or man of kind and inoffensive disposition, was clearly admissible. The appellant also introduced evidence tending to show that deceased had been engaged in difficulties in Oklahoma, where he had formerly lived. This made evidence in rebuttal by the State of his said general reputation in Oklahoma admissible. Bullock v. State,73 Tex. Crim. 419, 165 S.W. Rep., 196, and authorities there cited.
9. On cross-examination of Mrs. Choat she was asked, in substance, if she had not told appellant and other members of his family that deceased was of a violent disposition and she at one time kept him from killing her father. She denied this and they testified that she had so told them. The court, therefore, did not err in permitting her father to testify that he and deceased had never had any difference and that deceased never at any time attempted to kill him and that Mrs. Choat did not prevent him from getting a gun for that purpose. Nor did the court err in permitting the State to introduce evidence tending to impeach Sy Scott by George Dugan.
From the record it appears that when the court first prepared his
charge to the jury, it was submitted properly to appellant's attorneys. They then made various objections thereto and asked special charges. It is evident that the court recognized, or thought some of these objections, if not all of them, may have been well taken. He thereupon seems to have remodeled his charge entirely and then submitted the remodeled charge to appellant's attorneys. It also appears that they then made objections to the charge of the court as remodeled. Most of these are very general. Too much so to point out any specific error, as required by the statute.
Among other issues, manslaughter was raised. In his main charge, the court gave what we think is a correct and apt charge on that subject. However, appellant made some very general exceptions thereto, and thereupon he asked another full charge on that subject himself which the court gave, merely making an addition thereto which was applicable and in appellant's favor. It is unnecessary to copy these charges and the objections to the court's main charge. We think they are as favorable to appellant as the law and the facts justified and that there was no mistake or error therein. And none of appellant's other charges should have been given.
In a proper charge the court submitted not only appellant's defense, his claim that he killed deceased in defense of his wife, but also told the jury that if he killed deceased in defense of himself to acquit him. His objections to this portion of the court's charge were very general and point out no specific error, but he now claims that the court erred in submitting self-defense for himself. We think the evidence, without reciting it, authorized, if it did not require, the court to submit this defense in appellant's favor and that the court did not err in doing so. However, even if the evidence had not raised self-defense in appellant's favor, the court submitting such an issue would have clearly been in his favor and not against him, and it is the settled law of this State that when such is the case no reversible error is shown. C.C.P., art. 743, as amended in 1913; sec. 807, Judge White's Ann. C.C.P., and the many cases cited by him therein; Jones v. State, 63 Tex.Crim. Rep.; Christian v. State, 71 Tex.Crim. Rep., 161 S.W. Rep., 101.
Over the objection of appellant, the State by proper evidence proved that the stock law prohibiting mules from running at large in Hunt County had been adopted and was in force. At the instance of the State the court gave this special charge:
"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 Choat and were roaming about the cultivated land of the said Harrison Choat, without the consent of said Harrison Choat, then you are instructed that the said Harrison Choat 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 Choat by said mules and what fees, if any, he was entitled to under the law for impounding said stock."
Appellant objected to this charge for these reasons: Because there are no facts in evidence authorizing it, it puts in issue matters and things not material for either side, there was no testimony showing that the crop of deceased had been damaged by said mules, but the uncontradicted evidence showed that no damage had been done by them, that whether the stock law was in force, or deceased had a right to take possession of said mules, was immaterial, and it required the jury to pass upon an immaterial issue to either side and was prejudicial to appellant; that it was misleading and confusing to the jury and upon the weight of the evidence and would have a tendency to limit appellant's defense and deprive him of his rights under the law, and it takes from the jury their right to pass upon whether the said stock law was in force in said county.
In this connection the court, at appellant's instance, gave his special charge as follows: "If you believe from the evidence that at the time of the shooting it appeared to the defendant, R.P. Barnett, that the deceased, Harrison Choat, was making an assault with a hoe upon the wife of the defendant or that said deceased was about to make such an assault upon the wife of the defendant, and if it appeared to the defendant that she was in immediate danger of death or serious bodily injury, then and in that event the defendant had the right to shoot and kill the deceased and defendant's right to so shoot and kill was not destroyed, abridged or limited by the fact that defendant's mules were in deceased's cotton or by any law with reference to the running at large of live stock in Hunt County."
All the testimony by both sides, without any conflict, clearly established that appellant had leased or rented to deceased the said fifteen acres fenced field, wherein the killing occurred and that the deceased at the time was lawfully in possession thereof, as such lessee, and, so far as the stock law is concerned, that deceased was the owner of said leased field. It was, during the term of the lease, deceased's homestead, and the crops raised thereon, or the crops being raised thereon, were exempt to him. (Wheatley v. Griffin, 60 Tex. 209; Moore v. Graham, 69 S.W. Rep., 200; Phillips v. Warner, 16 S.W. Rep., 423; Anheuser-Busch Brewing Assn. v. Smith, 26 S.W. Rep., 94; Allen v. Ashburn, 65 S.W. Rep., 45; Coates v. Caldwell, 71 Tex. 19, and many other authorities to the same effect.)
Appellant had no right to enter thereon and would be a trespasser if he did, the same as any other outside party would have been. The landlord has no right of entry upon the leased premises even to make needed repairs, unless the contract gives him that right. Higby v. Kirksey, 163 S.W. Rep., 315, and authorities cited. Appellant clearly recognized this and testified that after trouble arose between them and shortly before the killing said: "I told him (deceased), I says, `Harrison, so far as your property is concerned and as far as it gives you
the liberty on my place, you are at perfect liberty to go wherever that crop gives you permission to go, otherwise, don't you go on my place any further.' And he said, `All right.'"
The statute as to the stock law expressly provides that when it has been put in force, as was shown in this instance (R.S., 7248): "It shall be unlawful to permit to run at large within the limits designated any animal of the class mentioned in said proclamation." The law adopted in this instance expressly included mules.
The next two articles are (art. 7249): "If any stock forbidden to run at large shall enter the enclosed lands, or shall, without being herded, roam about the residence, lots or cultivated lands of any person other than the owner of such stock without his consent, in any county or subdivision in which the provisions of this chapter have become operative in the manner provided in the preceding article, the owner, lessee or person in lawfulpossession of such lands may impound such stock and detain the same until his fees and all damages occasioned by said stock are paid by him."
(7350). "No animals shall be impounded unless they have entered upon the enclosed lands or be found roaming about the residence, lots or cultivated land of another, and, whenever any stock is impounded, notice thereof shall be given to the owner, if known, and such owner shall be entitled to their possession upon payment of fees and damages."
The next article prescribes the fees allowed the taker up of such stock and authorizes and requires the justice of the peace to appoint three disinterested freeholders to assess the damages, if any, done by such stock and the fees due the taker up, if any, and makes other regulations thereabouts unnecessary to mention. As stated in said article 7250, the owner of the stock "shall be entitled to their possession upon payment of fees and damages."
There can be no question from this record but that both the appellant and his family and the deceased and his wife had this stock law in mind and were acting upon it at the time and immediately before the killing. The facts show that appellant and his family had been using the mules to haul oats in the morning of the day of the killing and wanted them again that evening for the same purpose; that at noon they turned them in the lot, watered and fed them and the appellant and his family, after dinner, all went to sleep, and slept some time. The lot wherein the mules were turned was separated from deceased's field by appellant's fence. The deceased and his wife, in passing to and fro from their house to their said field had to pass and did pass right by the appellant's house. About 1 o'clock, while appellant and his family were asleep, the deceased and his wife, taking their two little infant children, went to their said field to chop cotton and did engage in chopping their cotton. They were somewhat below the center of their field. While they were thus at work and appellant and his family asleep, appellant's three mules jumped over said fence out of the lot into deceased's field. They began grazing therein, going south towards deceased and his wife, who saw them. Mrs. Choat testified: "When
I saw these three mules in the field I hoed on a while and went to the house after a rope; I hoed something like forty minutes after seeing the mules in the field and then went home and over to Mr. McFadden's. In going I went up to the lane, crossed in the lane where I got in the field at the time and went up in front of Mr. Barnett's house." She then shows that she went to her house, got a rope for her husband to tie the mules and went back to take it to him for that purpose. She said that Padgitt Barnett did not come down in the field after the mules while she was there. Padgitt said she was there at the time. According to her testimony Padgitt went down in the field after the mules while she was gone to her home after the rope. At any rate, after appellant and his family woke up, they discovered his three mules in deceased's field about two-thirds of the way down in the field. Appellant sent his sixteen-year-old son Padgitt down into deceased's field to get the mules. Padgitt testified: "In going towards the mules I had to pass pretty tolerably close to Mr. Choat, and he told me if I was going down after the mules I could turn around and go back, them mules were in the field and they were going to stay there, and I turned around and went on back to the house." At another place he said: "Mr. Choat spoke to me about like he always talks and told me he would not let me take the mules and I went back and reported to my father." Appellant himself swore that Padgitt came back and so reported to him. He said that Padgitt said to him, "Mr. Choat made him come back out of the field and told him if he was going back down in the field after the mules to go back and stay out, he would take care of the mules." Just after Padgitt so reported appellant had a consultation with his wife and his sons Padgitt and Jimmie, and they all said, in substance, that appellant first said he was going down himself and get the mules; that his wife told him that he had better not go, that he might have trouble, and thereupon, upon further consultation, it was determined that Mrs. Barnett and Jimmie, her little eleven-year-old boy, should go down in the field and get the mules, and that they then started out to do so. Immediately after she and Jimmie started appellant armed himself with a Winchester rifle and his son Padgitt armed himself with a shotgun. Padgitt took the east side of the field fenced, and followed on down to about opposite where the killing occurred. Appellant went out with his rifle, first stopped on the north string of the fence about the northwest corner. He saw Mrs. Choat passing along with the rope with which deceased was going to tie the mules. They spoke to one another. He said nothing to her about the mules or that his wife and Jimmie were going down after them. Mrs. Choat proceeded on down with the rope towards her husband. Appellant got over in his cornfield on the west string of the fence just outside of the deceased's field and followed along with his rifle till he got some distance, but not quite opposite to where the killing occurred. When Mrs. Barnett and Jimmie got down to about where deceased was, she said she said nothing whatever to him. She was after the mules. The mules then were down about the south string
of the fence. Both deceased and Mrs. Barnett and Jimmie started after the mules and they all followed them down to about the southeast corner of deceased's field. The State's theory, and there was ample evidence to sustain it, was that Mrs. Barnett and Jimmie attempted to run the mules from the southeast corner of deceased's field along his east line north, so as to run them into appellant's lot; that the deceased attempted to prevent this and hold the mules, and in doing so, raised his hoe and motioned at the mules to prevent their going north. However, one of the mules got by, went along the east string followed by Jimmie. The other two turned and went back west along the south string of the fence, Mrs. Barnett following along to run the mules out, deceased to prevent this and catch the mules. The evidence on behalf of the State strongly tends to show that at no time did deceased attempt to strike Mrs. Barnett with the hoe, and that at no time was he in such proximity to her that he could do so. On the other hand, Mrs. Barnett claimed that deceased struck at her with the hoe when they were at the southeast corner of the field, and not at the mules. The testimony by the State shows that when the two, deceased and Mrs. Barnett, were following the mules west along the south string, deceased was in front and ahead of Mrs. Barnett and that he was after the mules, — not Mrs. Barnett. The testimony on the appellant's side was that Mrs. Barnett was in front and deceased following her with the hoe. This disputed point was for the jury to solve. But unquestionably the theory was clearly presented that deceased was seeking to hold the mules to impound them, and prevent Mrs. Barnett and Jimmie from taking them from his possession and driving them out of the field. Appellant and Mrs. Barnett both testified that before she and Jimmie started down from the house into the field to get the mules that she asked appellant if the deceased had the right to hold them. Appellant told her that he did not have, but that in effect he might be liable for the damage his mules had done deceased, and if so, he would pay it, clearly showing that they all specifically had in mind at the time the stock law and their rights under it. So that it was very important for the court to tell them, as he did, the rights of the deceased under the stock law.
Our civil courts have repeatedly discussed and decided the effect of the said stock law. In Graves v. Rudd, 65 S.W. Rep., 63, it was shown that appellant therein sued to recover his twelve head of cattle and sequestered them. Appellee therein held them and claimed damages and fees under said stock law. The court rendered judgment in favor of appellee for $2 damages and $24 fees and costs. The owner of the cattle appealed from that judgment and, among other things, claimed that the stock law had no application because his cattle were in a field which was enclosed by a good fence and escaped therefrom without fault on his part. The court, after quoting said article 7249. Revised Statutes, said: "The stock in question did enter the enclosed field of the defendant after the adoption of the stock law by Grayson County, forbidding said stock to run at large; and defendant, acting under the statute, proceeded to impound the cattle. The cattle were trespassing
upon the cultivated land of defendant at the time that he took the same ino his possession. Under the act he was authorized to impound the cattle, and to hold the same until his fees and damages were paid as provided by the terms of said act," and affirmed the case. The Supreme Court denied a writ of error therein.
In Frazer v. Bedford, 66 S.W. Rep., 573, it was shown that some cattle belonging to Bedford and others escaped from a pen in which they were confined and broke into the enclosed premises of appellant and damaged his crop. The stock law was in force. Without impounding the stock he sued Bedford et al. for damages. The trial court instructed the jury that if the defendants used such care as an ordinarily prudent man would and should have used, under the circumstances, to prevent the cattle from escaping and entering upon the enclosed land of the plaintiff and his enclosed crop, then they should find for the defendants. The plaintiff requested a charge, which was refused, to the effect that it was the duty of the defendants to keep their cattle confined so as to keep them from escaping and entering his enclosed land and damaging his crop, and if they failed to do so, the jury should find for him. Under the instructions the jury found for the defendants therein. Plaintiff therein appealed and the Court of Civil Appeals held that in a territory in which the stock law had been adopted the land owner (in this case the deceased), was guilty of no fault or negligence in failing to fence against the animals which are forbidden to roam the country at will, saying: "The owners of such stock must keep the same confined at their peril, else they will be held liable to account for the damages which may be inflicted on their neighbors by such animals. Since they have control of the agency by which the damage is occasioned, it is more consistent with reason and justice that they should suffer than should their neighbors, who have no means whatever of preventing the injury, except by going to the expense of fencing against such animals, to require which would defeat the purposes of the law."
In Evans v. Railroad, 37 S.W. Rep., 93, it was shown that the stock law was in force in the city limits of Greenville. Evans' mare had been staked close to the railroad but broke the rope and was afterwards killed in Greenville by the railroad train. No actual negligence of the railroad was shown. Evans sued the railroad for the value of the mare. The court held that the railroad company should not be required to fence against animals which the law said should not run at large; and, further: "The fact that the owner of the animal was not at fault in permitting it to wander upon the track does not increase the burden or responsibility of the railway company, and make it liable, except in the way just stated," — that is, by showing actual negligent killing. "The caution of the owner does not, in a case of this kind, have the effect of increasing the care of the railway company, and burdening it with an extra duty in the premises," and the court affirmed the case denying plaintiff a recovery.
In Red River, etc., R.R. v. Dooley, 80 S.W. Rep., 566, Dooley sued
the railroad to recover $250 for killing two horses belonging to him, and recovered. The stock law was in force in Denton County, where these horses were killed. The Court of Civil Appeals reversed the case, holding that where the stock law was in force, "the animals are trespassers and their bare presence is negligence on the part of the owner," citing many cases. And further saying: "We do not agree with appellee in his contention that the animals in question being at large without his knowledge would alter the rule as above announced. Under the terms of the stock law in force in Denton County (R.S., art. 7248); it is declared to be `unlawful to permit to run at large' within said county any animals of the class to which appellee's belonged. This we construe to mean that it is the duty of the owner of such animals to prevent their running at large, and not merely that he is forbidden to knowingly permit their freedom."
In the City of Paris v. Hale, 35 S.W. Rep., 333, the stock law was shown to be in force in the City of Paris by proper ordinance. Hale kept his horse in his lot adjoining one of the public streets and it had never before then escaped therefrom. He did not permit it to run loose on the streets. His lot and the gates thereto were always kept fastened. About an hour or hour and a half before the horse was taken up by the stock policeman the horse in some way broke out or got out of the lot into the street. Hale used due care to keep his horse in his lot, but he got out without his fault or negligence. The police officer, however, found the horse on the street and took him to the pound. As soon as Hale found it out he demanded possession, which the officer refused to surrender, unless he paid the pound fee of $1. This Hale refused to do and sued for his horse. The trial court held that as Hale had exercised reasonable care to restrain his horse and it escaped into the street without his consent or fault, that his horse was not running at large within the meaning of the ordinance and entered judgment for the horse. The horse was not shown to have caused any damage whatever, — merely loose in the street. The Court of Civil Appeals held that the City of Paris had the right, as a police regulation, to provide that when an animal was thus found in the streets loose and uncontrolled, that it should be impounded and the owner was not entitled thereto until he paid the impound fee, the court saying: "It is evident that the ordinance was intended to prevent some real or supposed evil, and the remedy provided was intended to apply whenever the evil recurred, regardless of any purpose or want of purpose on the part of the owner of the animal, because the harm resulting from the animal being loose would be the same whether the owner was or was not in fault," and the court reversed and rendered the case.
In this case the deceased, we think, unquestionably had the right and was undertaking to exercise it, to hold appellant's mules for the fees and damages, if any. The law prescribed how appellant could peaceably get possession of his stock and that three disinterested freeholders should determine what damages and costs, if any, the deceased was entitled to. If none, appellant would have procured his stock without any cost.
If they had caused damage, or deceased had been entitled to any fees, by paying it appellant could have peaceably procured his stock. He did not attempt to do anything of the kind, but he took the law in his own hands and undertook by using his wife and little boy to forcibly take the stock out of deceased's possession, and for that purpose sent them to get the stock and he and his sixteen-year-old boy armed themselves with guns and followed at a safe distance, intending as he did from the State's standpoint, to shoot down and kill the deceased if he interfered with his wife in her attempt to forcibly take the stock out of the deceased's possession. He was a trespasser and in the wrong from start to finish. The court did not so tell the jury, however, but the special charge objected to merely told them that the deceased had the right under the stock law to hold the possession of the stock until three disinterested freeholders should determine whether or not he was entitled to any fees and damages. We think the court did right in so telling the jury. As shown by appellant's special charge, copied above, the court told the jury that appellant's right to defend his wife from the claimed assault by deceased upon her was not destroyed, abridged or limited by the fact that his mules were in deceased's cotton or by any law with reference to the running at large of live stock in Hunt County. In our opinion it was proper for the State to prove that the stock law was in force and it was necessary under the facts and circumstances of this case that the court should also tell the jury as he did in said special charge objected to.
If, under the circumstances, Choat had killed Mrs. Barnett and he had been on trial therefor, we think there can be no question but that it would have been the duty of the court to have told the jury that Choat had the right to impound said stock and to prevent their being taken out of his possession, as they were attempted to be done by Mrs. Barnett and appellant. However, as appellant killed Choat, the State had the right to have the court tell the jury in this case what Choat's rights were with reference to this stock, which, without doubt, he was attempting to enforce and appellant knew it.
The court properly refused all of appellant's special charges which he did refuse. Wherever necessary or proper to submit any question sought to be raised thereby the court covered the point fully and aptly in his main charge.
In our opinion no reversible error is pointed out and the judgment will be affirmed.
Affirmed.