BROOKS, Judge.
Appellant was indicted in Anderson Count)7, and upon change of venue was tried in. Cherokee County, was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years.
At the time the homicide was committed, in Anderson County, the District Court was in session, but the grand jury had been discharged for the term. The court set aside the order discharging the grand jury, and entered an order reassembling the grand jury. It appears that of the twelve members all were present in answer to said summons. On account of one of the grand jury, to wit, J. L. Tucker, being related to deceased, Jim Stafford, and for the further reason that said Tucker had contributed to a fund to prosecute appellant, upon the challenge of the State the court excused said grand juror. Afterwards the State withdrew its challenge to said Tucker, and the court had him recalled. Thereupon appellant objected to Tucker being recalled on the ground alone that he had been excused by the court, appellant expressly disclaiming any intention or desire to challenge him. The court then excused Tucker because of the exceptions made by the State, and partly upon his own motion. Appellant moved to set aside the indictment on the grounds: “(1) There was present one person, to wit, T. A. Gossett, not authorized by law, when the grand jury which found and presented the indictment were deliberating upon the accusation against defendant, and when said grand jury were voting upon said indictment. (2) Said indictment was found and presented by a body composed of thirteen members, and pretending to be a grand jury organized at the April, term, 1899, of the District Court of Anderson County. (3) At the time said indictment was found and intended to be presented, there was no court in session in Anderson County to which said indictment could be presented.” An inspection of the record shows there is no merit in the last reason assigned by appellant for setting aside the indictment. Article 411, Code Criminal Procedure, provides: “When the grand jury has been discharged by the court for the term it may be reassembled at any time during the term, and in case of a failure of one or more of the members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance.” In order to arrive at a proper construction of this article, it is necessary to consider the previous articles of chapter 7, which relate to the organization of the grand jury. It is conceded by appellant that if the juror Tucker, who was excused by the court, had not been present, then the very terms of article 411 would have authorized the court to have another juror summoned and impaneled in lieu of the juror Tucker; appellant’s insistence being based upon the fact that the grand juror Tucker was present and stated his relation to deceased, and that he had subscribed to a fund to prosecute appellant, and that these reasons were not sufficient to authorize the discharge, and that the court could not have dis
charged him for any character of reason, he being present. In. other words, appellant’s contention is that the grand jury, when once organized, remains as it is then organized during the entire term of the court, regardless of the fact that the judge has discharged them for the term and reassembled them. When a grand jury is discharged by the court for the term, it is functus officio, to to speak. In other words, it ceases to exist, unless the court sees fit to reassemble it as provided in article 411; and, when article 411 provides that on the “failure of one or more of the members to reassemble the court may complete the panel,” this clause certainly does not mean the mere physical presence of the grand juror, but, if he is disqualified.for any of the reasons set forth in chapter 7, then the court, upon his sound discretion, or motion of the district attorney, or upon proper legal exception by appellant himself, can discharge the grand juror. See Trevinio v. State, 27 Texas Grim. App., 372. In other words, we hold that article 411 authorizes the court to organize the grand jury as it did in the first instance. Appellant in his able brief, concedes that if the case of Trevinio v. State, 27 Texas Criminal Appeals, 372, is the proper construction of this article, then his insistence is without merit. We there held that: “After a grand jury has completed its labor, and as a body has been discharged for the term of the court, as a body it ceases to exist, and-its autonomy and personnel are in a measure, if not completely, changed and destroyed when it is sought to reassemble them. We think it clear from the phraseology of the statute that it was within the contemplation and intention of the Legislature that when the grand jury was reassembled they could only be organized and impaneled with twelve men; that there must be at least that many persons; that no less number would suffice, and if there were not twelve present, the number could be completed by impaneling other qualified persons in their stead.” To hold otherwise than as above would be depriving appellant and the State of subdivision 2, article 401, wherein the statute provides that a grand juror is disqualified if he is a prosecutor upon the accusation against' appellant. It is an axiomatic rule of statutory construction that the Penal Code must be construed as one harmonious whole, if it can be done. To .give article 411 the construction insisted on by appellant would be defeating the very object, purpose, and intent of said article, since the evident intent of the Legislature was to provide a quick and expeditious manner and means of reorganizing the grand jury for the purpose of investigating crimes that may have occurred between the time of the discharge of the grand jury and their reassembling. Suppose all twelve of the jurors were summoned, and all were present, and all were very sick; could it be seriously urged that the court could not discharge that grand jury and order the sheriff to summon another? If so, then the statute might, in all human probability, be rendered ineffectual and void by one of.the usual incidents of life. We are not warranted in giving it this construction, but believe the clear import of the language, coupled with the other articles
in said chapter 7, leaves no doubt of the fact that, if the grand juror is present and unable to serve, “the court may complete the panel by impaneling other qualified persons in their stead in accordance with the rules prescribed in this chapter for completing the‘grand jury in the first instance.” Appellant further insists that the Trevinio case, supra, is overruled by Gay v. State, 40 Texas Grim. Rep., 242. In that case appellant made a motion to quash the indictment “on the ground that the grand jury finding the bill had previously been adjourned for the term, and, when it was reassembled, that it was not then impaneled and sworn according to law, and, furthermore, that when it was reassembled it was not composed of the same grand jurors which had been impaneled at the beginning of the court; that one Howard Miller’s name did not occur on the list, but that the name Howard Wagner occurred twice. It was shown as to this that the name Howard Wagner occurred twice by mistake, and that Howard Miller’s name should have appeared in one place instead of the name of said Wagner. This sufficiently shows that it was the same identical grand jury which had been originally impaneled at the beginning of said term of court, and it was not necessary, when they were reassembled, to reimpanel them; that is, it was not necessary to go through the formality of testing them as to their qualifications, and reswear the members of said grand jury. Article 411, Code of Criminal Procedure, 1895, controls this matter, and, it is apprehended, where the constituents of the grand jury reassembled are the same, that the court shall do no more than set aside the order discharging the grand jury, and then order their reassembling. Of course, it would be different where the original grand jury does not attend, and other persons are summoned to fill out the original panel.” We do not see any conflict between the excerpt quoted from the Gay case and the Trevinio case. In the Gay case we hold that where all the grand jury are reassembled, and none of them are set aside for any reason, the mere discrepancy in stating the name of one does not affect the panel, nor is it necessary to reswear them, since they have all been sworn touching their qualifications, as grand jurors. However, in the case at bar, while the juror Tucker appeared, he was disqualified under the statute from sitting, and when he was discharged another grand juror was placed in his stead, and the panel was then and there completed, and made and constituted a constitutional grand jury, under the laws of this State. We therefore hold appellant’s motion to set aside the indictment was properly overruled.
Appellant insists the court erred in giving the following charge to the jury: “Homicide is permitted by law and is justifiable when inflicted for the purpose of preventing the offense of murder, maiming, disfiguring, or other serious bodily injury, when the killing takes place under the following circumstances: (1) It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named; (2) the killing must take place while the per
son killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. So, upon this issue, you are charged that the defendant would be justifiable in killing deceased, if it is shown to have been done to prevent the deceased from murdering, maiming, or disfiguring him, or if it is shown that at the very time of the killing, or immediately preceding such killing, the deceased, Jim Stafford, had made, or was in the act of making, some hostile demonstration towards defendant, such as produced in his mind a reasonable fear or expectation of death or of some serious bodily injury; but in that case, to justify the killing, it must reasonably appear from the acts, or words coupled with the acts, of the deceased,'that he intended to murder, maim, disfigure, or inflict some serious bodily injury upon defendant, and the killing must have taken place while deceased was in the act of committing such offense, or after some act done by. him showing evidently an intention to commit such offense. Therefore, if you believe from the evidence that defendant at the time of the homicide believed that his life was in danger, such fear being produced by hostile acts on the part of deceased, and that at the time he fired the fatal shot (if he did so) it reasonably appeared to defendant; from all the circumstances of the case, viewed from defendant’s standpoint alone, that deceased was about to shoot him with a pistol, then defendant would be justifiable in killing deceased; and if you so believe, you will acquit defendant, though it may appear as a fact that defendant was in no danger at the time of the homicide.” Appellant objects to the above quoted charge: “(1) Because it was calculated to mislead and confuse the jury as to the burden of proof to show the existence of circumstances which would justify him in killing deceased.
(2)
That fairly and reasonably construed, it devolved on defendant the burden of showing the existence of such circumstances. (3) That it required the jury to believe from the evidence that deceased was killed while in the act of committing the offense of .murder, maiming, or disfiguring, or after some act done by him showing an intent evidently to commit such offense, whereas the law is that if defendant killed deceased at a time when it reasonably appeared to him deceased was in the act of either murdering, maiming, or disfiguring him, or inflicting upon him some other serious bodily injury, he would have been justified in killing him. (4) That it required the jury to believe from the evidence that defendant, at the time he may have killed deceased, believed his life was in danger, when the law is that, if he either believed his life was in danger or that he was in danger of seiious bodily harm at the hands of deceased, he would have been justified in killing him. (5) In applying the law to the case in said charge, the court limited the apprehension of danger in the mind of defendant to such as might have been produced by ‘hostile acts’ on the part of the deceased, and did not extend the principle to the ‘words coupled with the acts’ of the deceased. (6) In applying the law to the case in said charge, the court limited the right of defendant to act
‘at the time he fired the fatal shot’ to a defense against an assault upon him by deceased, and did not extend the principle to a threatened assault on the part of deceased, indicated by acts, or words coupled with acts, of deceased, reasonably calculated to produce in the mind of defendant a fear of death or serious bodily injury.” We do not think the court’s charge is subject to the criticism made by appellant, and, without at this time reviewing the facts in detail, hold that the same was peculiarly applicable to the facts of this case. It is not necessary for the court to place the reasonable doubt at the end of each charge. Edens v. State, 41 Texas Crim. Rep., 522. We note that the court charged upon the appearances of danger, and the mere absence of a statement in the charge that appellant had a right to defend against “danger of serious bodily harm” would not authorize the reversal of a case, unless there was some evidence showing that the assault was one intended to inflict serious bodily harm, and not death. In other words, the evidence in this case shows that deceased, as testified by appellant, made an assault upon him with a pistol, and that appellant shot deceased to save his own life. This being the testimony, it certainly was harmless error, if error, to fail to charge on the doctrine of serious bodily injury. In Mitchell v. State, 38 Texas Crim. Rep., 170, appears the following: “Appellant complains because the court, in his charge, limited his right of self-defense to an assault with intent to kill him, made by deceased, or to some act done by deceased showing evidently that he intended to kill defendant. The vice suggested by this charge is that, if deceased was doing some act which indicated that his purpose was to inflict serious bodily injury upon defendant, his right of self-defense against such an attack would be equally perfect. If there was any testimony in the case showing that deceased, if he made an assault on defendant, had a less purpose than an intent to take his life, the contention would have great force, but there is no such testimony in this case. If deceased was in the act of making an assault on defendant at all, it was for the purpose of taking his life,—he was about to shoot him with a pistol; and we fail to understand how the charge in question could have injured the rights of appellant.” The above quoted language could with equal force be applied to the facts of this case, and hence we hold that there is no error in the charge complained of. See, also, Gonzales v. State, 28 Texas Crim. App., 130, and 30 Texas Crim. App., 203.
Appellant also insists that the court erred in his charge on the law of provoking the difficulty. In order to present this question fully, we will make a short statement of the evidence as detailed-by the main prosecuting witness, Sadler. “Witness and deceased were sitting in the sheriff’s office, in the jail. Appellant drove up in a buggy, close to the sidewalk by the jail, and called to deceased: ‘Jim Stafford, come out here. I want to see you.’ Deceased complied, and as deceased reached the edge of the street, and just as witness got to the jail door, appellant got out of his buggy, turning his back west, in
the direction of his horse’s head, and stood about halfway between its head and the front wheels of his buggy; placing his left hand either on the shaft or harness; dropping his right hand down by his right hip pocket. Witness at this time was coming down the steps of the jail, and deceased had taken three or four steps into the street, towards appellant, when appellant said: ‘By God, I want to know what you all were doing over there last night, meddling with my business.’ Deceased replied: ‘I was not meddling with your business. I was only discharging my duty with Mr. Cook’ (or ‘under Mr. Cook,’ I don’t know which). Defendant replied: ‘God damn you! I want you to understand, by God! I am running’ (or ‘attending to’) ‘that town; and, by God! I want you all to stop meddling with my business’ (or ‘affairs’). I think he said ‘affairs.’ Deceased replied, ‘Ed, I have not meddled with your business. I have only been trying to discharge my duty, which I expect to do as long as I hold my place.’ Defendant replied: ‘God damn-your souls! I not only want you to quit meddling with my business, but to stay away from over there.’ Deceased then said: ‘Ed, I don’t want any trouble, but, by God! I will discharge my duty.’ Defendant replied: ‘God damn you! get out from here,’ pulled his pistol, and fired at deceased. When the shot fired, deceased staggered backward a short step, and then at once stepped forward, and, as he took the first step forward, pulled his pistol.” The statement of facts 'further shows that appellant was the city marshal of Palestine, and deceased was deputy sheriff; that appellant was angered at efforts on the part of deceased and the sheriff of the county to enforce the gambling laws, and this appears to have been the basis of the difficulty on the fatal morning. In presenting the issue of provoking the difficulty, the court charged the jury as follows: “You are further instructed, as a part of the law of self-defense, that if a person, by his own wrongful act, brings about the necessity of taking the' life of another to prevent himself being killed, he can not claim that such killing was in his own necessary self-defense, but the killing in such case will be imputed to malice, by reason of the wrongful act Which brought it about, or malice from- which it was done. The law is that he who brings on an affray in which he intends to wreak his malice can not avail himself of the shield of self-defense, though his own life be imperiled in the affray, and that the slayer,, if he provoked the contest or produce'd the occasion with the intention of killing deceased or of doing him some serious bodily harm, is guilty of murder, although he may have done the act of killing suddenly, without deliberation, to save his own life. In such case the law allows no justification, and no reduction of the grade of the homicide below that of murder. If you believe, therefore, beyond a reasonable doubt, that defendant by his own wrongful act brought about the necessity of killing deceased, intentionally and with a view thereto, or if. defendant provoked the difficulty with the intention of taking the life of deceased, intentionally and with a view thereto, and that under
such circumstances he shot and killed deceased, then the homicide would be murder in the first or second degree, according as the facts and circumstances may justify the jury in finding, even though he may have done the act of killing suddenly and to save his own life. But if defendant provoked the difficulty that resulted in the death of deceased, or by his own wrongful act produced the necessity for taking the life of deceased, but with no intention to kill deceased or to inflict upon him some serious bodily harm, and suddenly, under the immediate influence of sudden passion arising from an adequate cause, as explained to you in paragraph 14 of this charge, he shot and killed deceased, then you will find defendant guilty of manslaughter,” etc. Appellant excepted to said charge: “(1) That it is not every wrongful act which brings about the necessity of taking life to preserve his own that will deprive the slayer of his right of self-defense.
(2)
That it is not the law, without "qualification, that he who brings on an affray in which he intends to wreak his malice can not avail himself of the shield of self-defense. (3) That it is not the law, without qualification, that one who provokes a contest, or produces the occasion to kill another or do him some serious bodily harm, with intent to do so, is guilty of murder,- although he may have done the act of killing suddenly, without deliberation, to save his own life. (4) That it is not the law, without qualification, that a defendant who by his own wrongful act brings about the necessity of killing deceased, intentionally and with a view thereto, or provokes a difficulty with the intention of killing deceased, intentionally and with a view thereto, is guilty of murder. (5) That it is not the law, without qualification, that if defendant provoked the killing resulting in deceased’s death, or by his own wrongful act produced the necessity for killing deceased, but with no intention to kill him or inflict upon him serious bodily harm, he would be deprived of his right of self defense, and be guilty of manslaughter, if he suddenly, and under the influence of sudden passion arising from an adequate cause, shot and killed deceased. (6) That as a part of the law on the issue of provoking a difficulty, the court should have charged the jury: First, as to the kind and character of wrongful acts on the part of defendant which would deprive him of his right of self-defense; second, as to the effect on defendant’s right of self-defense where the provocation, if any, of deceased, reasonably should not have arisen from defendant’s acts, if any; and, third, should have indicated from the evidence what act or acts of defendant would have been sufficient to provoke a difficulty and deprive him of his right of self-defense, and should have defined the effect and bearing of such act or acts of defendant upon the case, instead of leaving it to the jury to speculate and conjecture as to 'the nature and quality of such act or acts, and the extent of its or their limitation and abridgement of defendant’s right of self-defense.” Appellant, in support of his contentions, cites Wrage v. State, 41 Texas
Crim. Rep., 369; Airhart v. State, 40 Texas Crim. Rep., 470; Mozee v. State (Texas Crim. App.), 51 S. W. Rep., 250. A close scrutiny of these cases will show that the main point decided in these cases was the error of the court in charging the jury that, if appellant sought- a difficulty with the intention of provoking same, then he would forfeit his righth of self-defense, etc. These eases were passing especially upon this proposition, and properly held it was error for the court to tell the jury that the mere seeking of. an adversary for the purpose of provoking a difficulty per se forfeits appellant’s right of self-defense. Appellant must not only seek his adversary for the purpose of. provoking the difficulty, but he must provoke the difficulty at the time he meets deceased, before it can be claimed that he has forfeited his right of self-defense. This is the real point at issue, and that was decided in the above cases. However, we note in Carter v. State, 37 Texas Criminal Reports, 404, and perhaps other cases cited in Mozee v. State, supra, that there seems to be a holding supporting appellant’s contention that it is necessary for the court to state the acts, facts, and circumstances indicative of the fact that appellant has provoked the difficulty. But we think, in the main, that said statements are dicta, and do not present a sound proposition of law. It is not necessary for the court, in charging upon provoking the difficulty, to tell the jury the facts upon which they can find appellant has provoked the difficulty. This would be, in the main, impracticable, since the facts and circumstances are so interwoven that it is impossible for the trial court to single out certain evidence indicating that appellant has provoked the difficulty, without charging or appearing to charge upon the weight of evidence. We think the proper practice is that pursued by the trial court in this case; that is, to tell the jury that if appellant provoked the difficulty with the intention
to
kill, then appellant would be guilty of murder in the first or second degree, according to the facts, or, if appellant provoked the difficulty without such apparent intention, he would be, guilty of manslaughter. We note, also, appellant’s insistence that the charge is wrong in that the court did not tell the jury what the effect upon appellant’s right of self-defense would have been where the provocation, if any, of deceased reasonably should not have arisen from defendant’s acts, if any. In other words, we understand that appellant insists, if the provocation offered by appellant is not such as is reasonably calculated to provoke a difficulty, then appellant would not be deprived of the right of self-defense. We understand this to be the law, to wit: Appellant may intend to provoke a difficulty, yet the means used to do so may not reasonably be calculated to provoke one; still, if appellant intended to provoke a difficulty, and the means used did provoke it, clearly he is responsible for what he actually intended to do. This is clearly the law. Suppose appellant makes a statement reasonably calculated to provoke a difficulty, but he did not intend to do so; his right of self-defense would not be forfeited, although the statement
made was calculated to bring about a difficulty. Clearly, then, the converse of the proposition holds good. That is, if appellant intends to provoke a difficulty, and he uses such means as he thinks will provoke the difficulty, and it does provoke it, then it is immaterial whether the means used to provoke the difficulty were reasonably calculated to do so or not. In other words, the whole matter turns upon appellant’s intent, and the results of his intent. Our law is all based upon the intent of appellant. We think the charge of the court is correct and applicable to the facts. Green v. State, 12 Texas Crim. App., 445; Meuly v. State, 26 Texas Crim. App., 306; Jackson v. State, 32 Texas Crim. Rep., 192; Penal Code, art. 708. We have frequently approved charges on provoking the difficulty where the court failed to group the facts. Alexander v. State, 40 Texas Crim. Rep., 395; Mundine v. State, 37 Texas Grim. Rep., 16; Tollett v. State (Texas Crim. App.), 55 S. W. Rep., 573; Swanner v. State (Dallas term, 1900), 58 S. W. Rep., 72. We also note that appellant insists the court should have charged on the law of retreat. There is no evidence raising that issue. We have carefully examined appellant’s bills of exceptions and other assignments of error, and, without reviewing them seriatim, we find no error in the matters complained of. The facts are amply sufficient to supporrt the verdict, and the judgment is in all things affirmed.
Affirmed.