BERRY, Judge.
The appellant was convicted in- the district court of Nacogdoches County of the offense of murder and his punishment assessed at confinement in the penitentiary for a term of twenty years.
The State’s testimony shows that George Teagle and his wife, Em Teagle, are negroes and that they were making a crop on the place of Mrs. Smith, a white woman, in Nacogdoches county and that on the afternoon before the killing occurred that night, Mrs. Smith had a conversation with Em Teagle which is alleged to have occurred in the presence of the appellant. We quote the following as Mrs. Smith’s version of this conversation :
“When I went up and talked to Em, Buster or Louis Dennis could hear it. I just went to the house and asked her if the children were there eating dinner, and to put them back in the field and pick cotton; and she said she wasn’t going to do it; that she didn’t have to do it; that she had done said what she was going to do, and she didn’t have to do it and she would do as she pleased; and she was saucy along with it. Her language was rough. She just said, “No damn white trash couldn’t make her do anything;” * * * I afterwards saw Mr. Wynne and had a conversation with him.”
After this conversation it seems that the negro woman, Em Teagle, the appellant and possibly some other negroes left the place and went across the river into San Augustine County. The Mr. Wynne referred to, was the 'party killed that night and he was at that time constable of the precinct and seemed to have been employed by Mrs. Smith to look after the hands in gathering the crops. After the conversation between Mr. Wynne and Mrs. Smith, Mr. Wynne, the deceased, seems to have enlisted the aid of other parties and some 4 of them armed themselves, two having shotguns and two having pistols, and six of them went to the crossing on the river where it was assumed that Em Teagle and the appellant and the other negroes would come back into Nacogdoches county during the night. For some reason, appellant and Em Teagle and the others did not cross the river at the bridge where deceased and his party were waiting for them. Deceased and his party remained at the river until about 9':30 o’clock and proceeded from there to the home of the appellant. Upon reaching the home of the appellant the facts show that some of the six men went in the house and had a brief conversation with the appellant asking him if Em Teagle was there, and to this question he answered in the negative. These parties then went back to the ear where the deceased was and reported to him and he got out of the car and several of the other parties got out of the car and some of them went to one part of the house and some to another and according to the State’s witness Bluford Menefee, the deceased walked in the house, went in the hall, knocked on the door where appellant was in bed with his wife'and where the negro woman, Em Teagle, and a baby girl of the appellant were sleeping in another bed and when he knocked on the door said:
‘1 Cap, this is the constable, get up and light a lamp, we want to get old Em; we are not going to bother any of yon, any of you folks. ’ ’
And the appellant got up hut didn’t light a lamp; and they lit a lamp across the hall in the other room and the deceased told them that he didn’t want to look in that room but in the other room, and they never did light a lamp in the other room; and the negroes were heard moving around in that room and Mr. Wynne knocked on the door again, like ordinary knocking on the door, and the door flew open and deceased was shot.
It was appellant’s version of the affair that these parties went to his house about eleven o’clock at night and that each of them was unknown to him and that one of the parties kicked the door open and the shot was fired by appellant in the direction of where the door was kicked and the deceased killed.
There is no suggestion in this record that the deceased had any warrant of arrest or other papers of any character authorizing him to arrest any party in appellant’s home or to search the house for any purpose. On the contrary, the record affirmatively discloses the fact that deceased and' his party were naked trespassers who in the quiet hours of the night when appellant was at home in bed with his wife, invaded his home and after being informed that the party for whom they were looking was not at his home, insisted on going through his house with the positive declaration that they wanted to get old Em.
It was also in evidence from the sheriff of Nacogdoches County and from members of the grand jury, that various members of the party who were with the deceased that night had made the statement on various occasions that deceased kicked the door before the shot was fired.
Appellant assigns various errors, hut in the view we take of the case, it is not necessary to discuss many of them. By proper bill of exceptions, the appellant shows that two of the veniremen while being examined on their voir dire, stated that they had sat on juries in capital cases prior to this case in the district court of Nacogdoches County. Whereupon the defendant in order to test their qualification as jurors and in order to determine whether or not he should use his peremptory .challenge on said jurors asked them what capital cases they had heretofore served as jurors on, in said county, and the trial court refused to allow appellant to ask these jurors that question. This action of the court, we think was error. A peremptory challenge is a right given by law to the appellant under which he may excuse for any reason sufficient to him, any member of the venire called to try his case. The peremptory challenge therefore partakes or the nature of a valuable right granted by the State. Under it he may
challenge for any reason deemed sufficient by him, or he may not exercise the challenge at all, if to his mind it seems best not to do so. Under these circumstances, it is apparent that great latitude should be allowed a party in examining veniremen in order that he may determine in his own mind whether or not he desires to have said veniremen serve on his jury. Moore v. State, 265 S.
W.
385; Nelser v. State, 257 S. W., 1097; Welk v. State, 257 S. W., 1098; Reich v. State, 251 S. W. 1072; Bennett v. State, 261 S. W., 1036; Benson v. State, 254 S. W., 793.
The information which appellant sought from these veniremen for ought we can say might have been well calculated to have enabled him to have intelligently exercised his premptory challenge. Various things might have entered into the trial of a former case that would have enabled the appellant to have intelligently passed upon the desirability of the jurors in the instant case. We think under the authorities above cited, under the facts of this case that the appellant was entitled to elicit the information sought by the question and that the trial court was in error in refusing to permit the question to be asked', but as the bill does not show that appellant exhausted his challanges or that any injury occurred by reason of the refusal to permit the question, we would not reverse on account of this error.
Complaint is made at the court’s action in permitting the State to prove by the witness, Harrell, that the deceased was looking for Em Teagie when they went to the home of appellant.
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BERRY, Judge.
The appellant was convicted in- the district court of Nacogdoches County of the offense of murder and his punishment assessed at confinement in the penitentiary for a term of twenty years.
The State’s testimony shows that George Teagle and his wife, Em Teagle, are negroes and that they were making a crop on the place of Mrs. Smith, a white woman, in Nacogdoches county and that on the afternoon before the killing occurred that night, Mrs. Smith had a conversation with Em Teagle which is alleged to have occurred in the presence of the appellant. We quote the following as Mrs. Smith’s version of this conversation :
“When I went up and talked to Em, Buster or Louis Dennis could hear it. I just went to the house and asked her if the children were there eating dinner, and to put them back in the field and pick cotton; and she said she wasn’t going to do it; that she didn’t have to do it; that she had done said what she was going to do, and she didn’t have to do it and she would do as she pleased; and she was saucy along with it. Her language was rough. She just said, “No damn white trash couldn’t make her do anything;” * * * I afterwards saw Mr. Wynne and had a conversation with him.”
After this conversation it seems that the negro woman, Em Teagle, the appellant and possibly some other negroes left the place and went across the river into San Augustine County. The Mr. Wynne referred to, was the 'party killed that night and he was at that time constable of the precinct and seemed to have been employed by Mrs. Smith to look after the hands in gathering the crops. After the conversation between Mr. Wynne and Mrs. Smith, Mr. Wynne, the deceased, seems to have enlisted the aid of other parties and some 4 of them armed themselves, two having shotguns and two having pistols, and six of them went to the crossing on the river where it was assumed that Em Teagle and the appellant and the other negroes would come back into Nacogdoches county during the night. For some reason, appellant and Em Teagle and the others did not cross the river at the bridge where deceased and his party were waiting for them. Deceased and his party remained at the river until about 9':30 o’clock and proceeded from there to the home of the appellant. Upon reaching the home of the appellant the facts show that some of the six men went in the house and had a brief conversation with the appellant asking him if Em Teagle was there, and to this question he answered in the negative. These parties then went back to the ear where the deceased was and reported to him and he got out of the car and several of the other parties got out of the car and some of them went to one part of the house and some to another and according to the State’s witness Bluford Menefee, the deceased walked in the house, went in the hall, knocked on the door where appellant was in bed with his wife'and where the negro woman, Em Teagle, and a baby girl of the appellant were sleeping in another bed and when he knocked on the door said:
‘1 Cap, this is the constable, get up and light a lamp, we want to get old Em; we are not going to bother any of yon, any of you folks. ’ ’
And the appellant got up hut didn’t light a lamp; and they lit a lamp across the hall in the other room and the deceased told them that he didn’t want to look in that room but in the other room, and they never did light a lamp in the other room; and the negroes were heard moving around in that room and Mr. Wynne knocked on the door again, like ordinary knocking on the door, and the door flew open and deceased was shot.
It was appellant’s version of the affair that these parties went to his house about eleven o’clock at night and that each of them was unknown to him and that one of the parties kicked the door open and the shot was fired by appellant in the direction of where the door was kicked and the deceased killed.
There is no suggestion in this record that the deceased had any warrant of arrest or other papers of any character authorizing him to arrest any party in appellant’s home or to search the house for any purpose. On the contrary, the record affirmatively discloses the fact that deceased and' his party were naked trespassers who in the quiet hours of the night when appellant was at home in bed with his wife, invaded his home and after being informed that the party for whom they were looking was not at his home, insisted on going through his house with the positive declaration that they wanted to get old Em.
It was also in evidence from the sheriff of Nacogdoches County and from members of the grand jury, that various members of the party who were with the deceased that night had made the statement on various occasions that deceased kicked the door before the shot was fired.
Appellant assigns various errors, hut in the view we take of the case, it is not necessary to discuss many of them. By proper bill of exceptions, the appellant shows that two of the veniremen while being examined on their voir dire, stated that they had sat on juries in capital cases prior to this case in the district court of Nacogdoches County. Whereupon the defendant in order to test their qualification as jurors and in order to determine whether or not he should use his peremptory .challenge on said jurors asked them what capital cases they had heretofore served as jurors on, in said county, and the trial court refused to allow appellant to ask these jurors that question. This action of the court, we think was error. A peremptory challenge is a right given by law to the appellant under which he may excuse for any reason sufficient to him, any member of the venire called to try his case. The peremptory challenge therefore partakes or the nature of a valuable right granted by the State. Under it he may
challenge for any reason deemed sufficient by him, or he may not exercise the challenge at all, if to his mind it seems best not to do so. Under these circumstances, it is apparent that great latitude should be allowed a party in examining veniremen in order that he may determine in his own mind whether or not he desires to have said veniremen serve on his jury. Moore v. State, 265 S.
W.
385; Nelser v. State, 257 S. W., 1097; Welk v. State, 257 S. W., 1098; Reich v. State, 251 S. W. 1072; Bennett v. State, 261 S. W., 1036; Benson v. State, 254 S. W., 793.
The information which appellant sought from these veniremen for ought we can say might have been well calculated to have enabled him to have intelligently exercised his premptory challenge. Various things might have entered into the trial of a former case that would have enabled the appellant to have intelligently passed upon the desirability of the jurors in the instant case. We think under the authorities above cited, under the facts of this case that the appellant was entitled to elicit the information sought by the question and that the trial court was in error in refusing to permit the question to be asked', but as the bill does not show that appellant exhausted his challanges or that any injury occurred by reason of the refusal to permit the question, we would not reverse on account of this error.
Complaint is made at the court’s action in permitting the State to prove by the witness, Harrell, that the deceased was looking for Em Teagie when they went to the home of appellant. This testimony should have been excluded. Appellant could not be bound by the motive, intent and purpose of the parties in going to his house at night armed with shot guns and pistols, when he was not aware of such motive, intent and purpose. Bradley v. State, 60 Tex. Crim. Rep. 399; Bryin v. State, 47 Tex. Crim. Rep. 146; Tillman v. State, 51 Tex. Crim. 204; Patterson v. State, 60 S. W., 559; Roquemore v. State, 129 S. W., 1120.
Complaint is made at the court’s action in permitting the witness Mrs. Smith to testify to the conversation she had with the woman, Em Teagie, in the presence of the appellant and in permitting her to detail said conversation' and to testify that the Teagie woman was saucy to her at that time. This testimony could serve no purpose in the ease except to engender race prejudice and inflame the minds of the jury against the appellant. The record affirmatively shows that appellant was nothing more than a mere by-stander at the time of this conversation, that he was not spoken to or in any manner drawn into the conversation by either parties to it and nothing is disclosed by the conversation that would in any manner have warranted his taking" part therein. It is also true that the conversation was not admissible because it was irrelevant and immaterial to any
issue involved in this case. Just how the fact that the Teagle woman sauced Mrs. Smith would in any manner justify a party of six men arming themselves and going at night to the appellant’s home and demanding the right to invade it and search it for this Teagle woman is not disclosed by this record.
Appellant also complains at the court’s action in permitting the State to ask the appellant while a witness in his own behalf why he didn’t go where his wife was when the difficulty occurred. It is appellant’s contention that this was tantamount to allowing the State to ask the appellant why he did not retreat. We think appellant’s contention in this respect is correct. The law does not place the duty or the burden upon a citizen of Texas to retreat in order to avoid the necessity of killing his assailant. Many authorities will be found among the reports of this court upholding this principle; then if he is not required to retreat it follows that the State would not be authorized to prove by him that he failed to retreat and to use this as a circumstance to impinge upon his perfect right of self-defense.
Appellant also contends that the court should have charged Art. 1106 of the P. C., in this case. The evidence as detailed above shows that the deceased and the posse with him went to the defendant’s home at night and the defendant’s testimony and that of his witnesses show that the deceased and those with him came into his house armed with shotguns and pistols and that the defendant saw them coming in thus armed. The record further discloses that they came into his house and' demanded that he light a lamp and advised him that they were there for the purpose of getting old Em who was at the time a guest in his house. And the testimony further clearly, at least from the defendant’s standpoint, shows that the deceased demanded that the door to defendant’s bed room be opened and upon appellant’s refusing to open it that .he kicked the door. It is further in evidence from one of the State’s witnesses that a small pistol was lying under or beside deceased when he fell. Under these circumstances, we think it clear that Art. HOG of the P. C. should have been charged. As supporting this contention, appellant cites the following cases, which we think sustain his contention: McMichael v. State, 46 Tex. Crim. Rep. 422; Scott v. State, 10 Tex. Crim. Rep. 964; Ward v. State, 30 Tex. Crim. Rep. 687; Hall v. State, 4 Tex. Crim. Rep. 219; Newman v. State, 126 S. W., 578.
It was clearly the right of the appellant to protect himself and those of his household against any act of the deceased and those accompanying him from which it reasonably appeared to the appellant that it was the purpose and intent of such persons or either of them to commit murder or to inflict serious bodily injury on the appellant or some member of his household. Viewing this case from all the facts developed it is difficult to see how any impartial mind can reach
the conclusion that it did not appear to the appellant, viewed from his standpoint, at least, that the deceased and those with him were about to kill the defendant or some other person with the defendant, or to do them some serious bodily injury, and on the testimony adduced on the trial we would be very reluctant to hold that the facts are sufficient to show an offense.
For the errors above mentioned, it is our opinion that the judgment should be reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.