LATTIMORE, Judge.
— Appellant was convicted in tbe District Court of Tom Green County of murder, and bis punishment fixed at confinement in the penitentiary for life.
Appellant’s complaint of the manner of the calling of tbe special term of the District Court of Upton County, at which he was indicted, and of the formation of the grand jury, but present'matters that in one form or another have often been before this court and decided adversely to his contentions. The rules governing the convening of regular terms of the courts and the formation of grand jurors in such case, are but the work of the Legislature. No Legislature can so make rules as that a later one may not change them.
The law-makers in 1905 enacted statutes governing the calling of special terms of district courts, the convening of grand juries, the trial of cases, etc., at such special terms and providing for the repeal of all laws inconsistent therewith. Articles 95-97, Chapter 3, Title 2, C. C. P., are part of said act. The judge of the court in such case does not have to give notice and none of the provisions of the general laws relating to convening of District Courts generally, or the formation of grand juries generally, upon which reliance is had by appellant, can avail where same are in necessary conflict with said provisions of the Act of 1905. The decision most relied on by appellant in his brief is a dissenting opinion. The matter has been too often discussed to need more than reference to the cases which present the conclusions of this court about it from almost very angle. Ex parte Young, 49 Texas Crim. Rep. 539; Ex parte Boyd, 50 Texas Crim. Rep. 312; Boyd v. Texas, 209 U. S. 539; McIntosh v. State, 56 Texas Crim. Rep. 134; Mayhew v. State, 69 Texas Crim. Rep., 187, 155 S. W. Rep. 196; Chant v. State, 73 Texas Crim. Rep., 345, 166 S. W. Rep., 514; Wilson v. State, 87 Texas Crim. Rep., 538, 223 S. W. Rep. 217; Ex parte Holland, 91 Texas Crim. Rep., 339, 238 S. W. Rep., 654; Newton v. State, 93 Texas Crim. Rep., 314, 247 S. W. 281.
We have carefully examined the facts in evidence and find nothing in same calling for a charge on the law of self-defense against the attempted execution of threats by deceased. It is shown in testimony that some few days prior to the homicide Jim Hickox, a son of appellant, had, in the night-time, taken a horse under the control of deceased and carried it away from the town of Rankin. The defensive theory about such taking was that it was by mistake and that young Hickox had thought the horse belonged to a friend of his and that he had put a pack upon it and gone some fifteen miles out in the country and there turned the horse loose. It is also in testimony that following this deceased, accompanied by the sheriff, went out to a sheep camp where said Jim Hickox was, looking for the horse, and that when they first accosted him regarding it he denied the taking, but later admitted it and said that he thought the horse belonged to a friend of his. In the course of the conversation young Hickox said to deceased that he would not have done a white man that way and deceased struck him. According to the defense witnesses, on the night of the homicide and prior thereto deceased made some general threats, but clearly same did not refer to appellant or to his son Tom but evidently to Jim Hickox. This appears from the testimony of appellant himself. No special charges were asked presenting any such defensive thory as that under discussion.
The exceptions to the court’s charge are lengthy but have all been
carefully considered and none are deemed of such character as that the matters pointed out were erroneous.
There was no dispute of the fact that at the time he was killed, deceased and Tom Hickox, another son of appellant, had hold of each other and were scuffling or struggling across the floor, and Tom testified that deceased was trying to get a pistol, and appellant testified that he heard Tom say to deceased that he must not get that gun. . Both deceased and Tom Hickox were young men, and the testimony further showed deceased to be active and muscular. The defense claimed that just before engaging in the struggle with Tom Hickox, deceased had assaulted appellant. The learned trial court submitted the law of the right of appellant to defend against danger, real or apparent, to his son Tom Hickox, and we find nothing in the cases of Brady v. State, 65 S. W. Rep. 522; Hickey v. State, 76 S. W. Rep., 930, or Lyons v. State, 71 Texas Crim. Rep., 183 which either in the facts or upon the law would sustain the contention that it was error in the instant case to charge the jury that if deceased was making or about to make an attack on appellant or his son Tom Hickox which from the manner and character of it, and the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury to him or his son Tom, and' that under such apprehension he did the shooting, they should acquit. We do not think the charge in this regard subject to any exception.
The killing took place at a public dance held in a garage. Appellant went to the place armed with a pistol. On direct examination he asserted that his reason for having said pistol was because he had learned that one Charles Poland had made threats against him. On cross-examination he said that several years before this trouble he had been told of threats made by Poland and also a few weeks before he had heard of same. He admitted that he had seen Poland a number of times and had no difficulty of any kind with him, and that Poland had made no attempt to execute any threats. The State pressed him to know why Poland should threaten him. The stenographic report of the testimony at this point is attached to the bill of exceptions and shows the following:
“Q. What was he threatening your life about?
A. It was in regard to some of his relatives, his father.''
Q. What about his father, how was it. in regard to his father?
A. It was trouble that his father and myself had had.
Q. What kind of trouble?
A. It was a difficulty in which I had to kill him. ”
We think the State was within its rights in cross-examining appellant on the matter of such threats. Both he and his son Tom went
to said dance armed with pistols. According to the State’s theory-appellant had been much angered at deceased following the assault by the latter upon young Jim Hoekox growing out of the horse transaction above referred to. It was in testimony that after learning of said difficulty in a conversation with the sheriff, appellant said he did not think the sheriff should have let deceased beat up Jim, and told the sheriff he would learn the sorry son-of-a-bitch how to beat up a boy and that he wanted the sheriff to tell the deceased so. This was just a few days before the homicide, and the State’s theory was that appellant and his sons went armed to the place of the dance for the purpose of having a difficulty with deceased. The State’s testimony shows that deceased was conducting himself in a quiet, peaceable manner, and that just before the.
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LATTIMORE, Judge.
— Appellant was convicted in tbe District Court of Tom Green County of murder, and bis punishment fixed at confinement in the penitentiary for life.
Appellant’s complaint of the manner of the calling of tbe special term of the District Court of Upton County, at which he was indicted, and of the formation of the grand jury, but present'matters that in one form or another have often been before this court and decided adversely to his contentions. The rules governing the convening of regular terms of the courts and the formation of grand jurors in such case, are but the work of the Legislature. No Legislature can so make rules as that a later one may not change them.
The law-makers in 1905 enacted statutes governing the calling of special terms of district courts, the convening of grand juries, the trial of cases, etc., at such special terms and providing for the repeal of all laws inconsistent therewith. Articles 95-97, Chapter 3, Title 2, C. C. P., are part of said act. The judge of the court in such case does not have to give notice and none of the provisions of the general laws relating to convening of District Courts generally, or the formation of grand juries generally, upon which reliance is had by appellant, can avail where same are in necessary conflict with said provisions of the Act of 1905. The decision most relied on by appellant in his brief is a dissenting opinion. The matter has been too often discussed to need more than reference to the cases which present the conclusions of this court about it from almost very angle. Ex parte Young, 49 Texas Crim. Rep. 539; Ex parte Boyd, 50 Texas Crim. Rep. 312; Boyd v. Texas, 209 U. S. 539; McIntosh v. State, 56 Texas Crim. Rep. 134; Mayhew v. State, 69 Texas Crim. Rep., 187, 155 S. W. Rep. 196; Chant v. State, 73 Texas Crim. Rep., 345, 166 S. W. Rep., 514; Wilson v. State, 87 Texas Crim. Rep., 538, 223 S. W. Rep. 217; Ex parte Holland, 91 Texas Crim. Rep., 339, 238 S. W. Rep., 654; Newton v. State, 93 Texas Crim. Rep., 314, 247 S. W. 281.
We have carefully examined the facts in evidence and find nothing in same calling for a charge on the law of self-defense against the attempted execution of threats by deceased. It is shown in testimony that some few days prior to the homicide Jim Hickox, a son of appellant, had, in the night-time, taken a horse under the control of deceased and carried it away from the town of Rankin. The defensive theory about such taking was that it was by mistake and that young Hickox had thought the horse belonged to a friend of his and that he had put a pack upon it and gone some fifteen miles out in the country and there turned the horse loose. It is also in testimony that following this deceased, accompanied by the sheriff, went out to a sheep camp where said Jim Hickox was, looking for the horse, and that when they first accosted him regarding it he denied the taking, but later admitted it and said that he thought the horse belonged to a friend of his. In the course of the conversation young Hickox said to deceased that he would not have done a white man that way and deceased struck him. According to the defense witnesses, on the night of the homicide and prior thereto deceased made some general threats, but clearly same did not refer to appellant or to his son Tom but evidently to Jim Hickox. This appears from the testimony of appellant himself. No special charges were asked presenting any such defensive thory as that under discussion.
The exceptions to the court’s charge are lengthy but have all been
carefully considered and none are deemed of such character as that the matters pointed out were erroneous.
There was no dispute of the fact that at the time he was killed, deceased and Tom Hickox, another son of appellant, had hold of each other and were scuffling or struggling across the floor, and Tom testified that deceased was trying to get a pistol, and appellant testified that he heard Tom say to deceased that he must not get that gun. . Both deceased and Tom Hickox were young men, and the testimony further showed deceased to be active and muscular. The defense claimed that just before engaging in the struggle with Tom Hickox, deceased had assaulted appellant. The learned trial court submitted the law of the right of appellant to defend against danger, real or apparent, to his son Tom Hickox, and we find nothing in the cases of Brady v. State, 65 S. W. Rep. 522; Hickey v. State, 76 S. W. Rep., 930, or Lyons v. State, 71 Texas Crim. Rep., 183 which either in the facts or upon the law would sustain the contention that it was error in the instant case to charge the jury that if deceased was making or about to make an attack on appellant or his son Tom Hickox which from the manner and character of it, and the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury to him or his son Tom, and' that under such apprehension he did the shooting, they should acquit. We do not think the charge in this regard subject to any exception.
The killing took place at a public dance held in a garage. Appellant went to the place armed with a pistol. On direct examination he asserted that his reason for having said pistol was because he had learned that one Charles Poland had made threats against him. On cross-examination he said that several years before this trouble he had been told of threats made by Poland and also a few weeks before he had heard of same. He admitted that he had seen Poland a number of times and had no difficulty of any kind with him, and that Poland had made no attempt to execute any threats. The State pressed him to know why Poland should threaten him. The stenographic report of the testimony at this point is attached to the bill of exceptions and shows the following:
“Q. What was he threatening your life about?
A. It was in regard to some of his relatives, his father.''
Q. What about his father, how was it. in regard to his father?
A. It was trouble that his father and myself had had.
Q. What kind of trouble?
A. It was a difficulty in which I had to kill him. ”
We think the State was within its rights in cross-examining appellant on the matter of such threats. Both he and his son Tom went
to said dance armed with pistols. According to the State’s theory-appellant had been much angered at deceased following the assault by the latter upon young Jim Hoekox growing out of the horse transaction above referred to. It was in testimony that after learning of said difficulty in a conversation with the sheriff, appellant said he did not think the sheriff should have let deceased beat up Jim, and told the sheriff he would learn the sorry son-of-a-bitch how to beat up a boy and that he wanted the sheriff to tell the deceased so. This was just a few days before the homicide, and the State’s theory was that appellant and his sons went armed to the place of the dance for the purpose of having a difficulty with deceased. The State’s testimony shows that deceased was conducting himself in a quiet, peaceable manner, and that just before the. homicide Tom Hickox came up and proceeded to bring up the matter of the assault by deceased upon his brother and grappled with deceased, and at this juncture appellant walked to where the men were struggling and around to the rear of deceased, pulled out his pistol and shot deceased" in the back, killing him. In probing the reason for the threats claimed by appellant to have been communicated to him as made by Poland offered in justification of the presence of a pistol had by him, the State asked appellant what kind of trouble he had had with Poland’s father and appellant made the statement that “It was a difficulty in which I had to kill him.” This answer to the question asked him by the State, can not be held a basis for the objection made. We do not regard this matter as proof on the part of the State of a charge made against appellant at a time too remote to have any legitimate bearing upon any issue in the case. The inquiry was directed at an ascertainment of a present matter claimed by appellant to furnish the reason for his having a pistol on his person on the night of the homicide.
It is also urged that the ease should be reversed because the attorney cross-examining appellant asked him if his entire record of shooting was not in the back. Appellant replied that he did not know that he had a record. At this point appellant’s attorney objected and the objection was sustained. The question was probably objectionable, but no objection being interposed before the witness answered, and especially inasmuch as the bill contains no showing of facts from which we might be apprised of the fact that appellant in truth had no record as a killer, and showing in some way the injurious character of the question, we would not be inclined to hold the matter of that materially injurious character ascribed to it by appellant.
Bill of exceptions No.
i
presents two objections, — one seemingly to a statement of the attorney for the State, — and one to a question asked witness Kirkpatrick' by said attorney which was not answered. Said attorney stated that he did not know there was a
skeleton in the closet; the appellant objected to such statement and the court sustained the objection and instructed the jury not to consider the statement. The bill further shows that at another time during' the cross-examination of such witness the attorney for the State asked him if he had a brother named Ben Kilpatrick. The courts sustained objections to this. There is a complete lack of any showing in the bill of any facts supporting the theory of injury to appellant in either of the matters mentioned, Statements of facts appearing in the brief of appellant not supported by anything in the record, can not be considered by us in this connection.
Complaint is made of the fact that State witness Nevell testified on direct examination that he had a conversation with deceased; following which he was asked if after said conversation he and deceased went anywhere, to which he answered, yes; later he was asked where they went after such conversation and replied that they went to the west end of the building to a water faucet to get some water. Appellant was not present. We see nothing in Spanned v. State, 83 Texas Crim. Rep., 418, upon which could be based a claim for the rejection of such testimony.
In his general instructions to the jury at the beginning of the trial, among other things, the learned trial court told them that they must remain together, that if they separated the defendant could reverse the case. This is set up as misconduct of the court. It appears that this occurred before any evidence was introduced. We do not think the statement should have been made but that it was not of that material character for which the case should be reversed. It is also complained that the court gave to the jury, after reading them the charge, five forms of verdicts, including not guilty, and guilty of murder, ■ etc. telling them that when they had come to a decision they would fill out that form which agreed with their verdict. This does not seem succeptible of the construction that it was an intimation on the part of the court that he thought appellant was guilty. We do not think such practice should be commended.
A number of special charges were asked some of which were given. No good purpose would be served by setting out those refused, all of which have been examined and the refusal of none is believed to present error.
By bill of exceptions No. 11 it is shown that an exception was taken to the statement in the closing argument, for the State that the result of the killing was to leave a widow and an unborn child without a father. If these facts were in evidence we see no reasonable objection to reference thereto in argument. The bill does not show that said facts were not in testimony.
Bill of exceptions No. 12 complained of the refusal of the court below to instruct the jury to disregard the statement in the closing
argument for the State that the attorney had had a great deal of experience in trying theft cases and usually when you get one dead to rights, they will get up some defense of mistake in order to escape. Evidently this argument had reference to the attitude of the defense witness Jim Hickox. ¥e have already referred to the fact that it was in testimony that said witness had taken a horse from the custody of deceased at night and had carried him away. It was also shown that following the disappearance of said horse deceased and the sheriff went to a sheep camp about twenty-one miles from Rankin, from which place the horse was taken, and that after first denying his having taken said horse, Jim Hickox admitted taking him and said he thought it belonged to a Mexican friend of his, and that if the horse belonged to deceased, he was sorry and would return him; that his taking the horse was a mistake. Substantially these facts were testified to by Jim Hickox, a witness in this case. Under these facts we do not think the argument complained of to be materially prejudicial to this appellant.
The defense produced a witness who said that after the body of deceased was carried across the street from where he was killed, that he saw a boy take a pistol out of the leg of one of the boots of deceased and go away with it. Many other witnesses who were around the body and examined it, said they saw no pistol or weapon of any kind. It was in testimony that when shot deceased was in his shirt sleeves with his pants tucked in his boots. Tom Hickox testified for the defense that as he was struggling with deceased just before appellant shot, deceased was trying to get to his bootleg. The attorney arguing the case for the State said that the boots of the deceased were offered in evidence and he challenged the defense to let the jury take them into the jury room if they wished, or to bring a man into the court room the size of deceased and let him test these boots as to whether a pistol could be placed in them when the trousers were in the boots as described by the witness. ¥e are unable to conclude this to be prejudicial and unfair argument. An experiment such as indicated in said argument would seem to have been proper if made during the introduction of testimony. ¥e are cited to no authority holding such argument improper.
Bill of exceptions No. 14 shows a requested charge whose refusal was proper, for the reason that such charge was not applicable or responsive to the argument actually made by the State’s attorney, as same is set out in the stenographic report thereof attached to said bill.
The unfortunate occurrence forming the basis of this prosecution and conviction was most fully developed, and the trial of appellant presented hotly contested issues. Many matters are set up in the motion for new trial regarding which no testimony was heard by the
trial judge. The State controverted the truth of the allegations in said motion relating to occurrences in the courtroom during the argument of the ease. No evidence having been introduced, and the matters having been submitted to the trial judge and passed upon ■ by him, we are not. prepared to say that his action was any abuse of his discretion in the matter.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.