White, Presiding Judge.
This appeal is from a judgment of conviction for murder of the second degree, with' the punishment assessed at imprisonment in the penitentiary for a term of eight years.
It is an undisputed, uncontroverted fact that this appellant and one Dick Springfield shot and killed the deceased, S. W. Allchin, with shot guns and pistols, as alleged in the indictment. This appellant does not deny but admits the fact, claiming that he was justifiable in so doing, or at most that his offense in so doing, under the facts developed on this trial, did not amount to murder, but was manslaughter. "No issue of manslaughter was submitted in the charge of the learned judge on the trial below, and the omission of the charge in this regard is urgently insisted upon as serious, radical error.
A brief resume of the facts is necessary in order to properly determine the merits of this objection to the charge. About a month before the day of this homicide, the deceased, Allchin, had killed one Chambers, a relative of this appellant and a deputy sheriff of Waller county. Appellant and Springfield were also deputy sheriffs. Out of the killing of Chambers by Allchin a bitter feud and hostility arose between the McDade or sheriff’s party and Allchin, which became of so serious a character that mutual friends of the two parties interfered to settle it, and finally succeeded in patching up or arranging an agreement or truce between them. By this agreement or truce it was, amongst other things, stipulated on behalf of All chin that he was not to go to Hempstead with his Winchester rifle in his hand, but was to carry it in his buggy, or holster or scabbard on his saddle when he was upon horseback, and that to carry it in [684]*684any other way was to be considered by the other party as a declaration of hostility. Hone of the McDades were to molest him in any way, and if either party heard of threats made by one against the other, or of acts against the agreement, they were to report it to mutual friends. A week or so before the killing Allchin, on one or two occasions, was seen by the McDades carrying his Winchester in his hands on the streets of Hemp-stead, and the McDades complained of it as exciting their serious apprehension of danger. Allchin was told in the final conversation, by mutual friends, that again to carry his gun in his hands would excite apprehension in the McDades’ minds and would be to them a declaration of hostility, and he assented to the justice of this statement. Several ruptures of the agreement were shown on the part of Allchin, and these breaches of the contract were known to defendant. A few days before the killing defendant received a written notice from Harvey that Allchin would be in town on Saturday, with his friends, to kill defendant; threats of death were communicated to defendant. The evidence shows threats upon the part of A11 oh in against defendant, some communicated and others not. On Saturday Allchin came to town on horseback, and was seen at several points in and upon the streets and at the depot. He had his Winchester rifle with him, and was handling it upon the depot platform. There was a public park or square in the center of the town, surrounded on the north and west by business houses. Haveman’s corner or business house was the corner house on the south of-the west block which fronted this square. On the northwest corner of this square was Wheeler’s saloon. Some time before the killing Allchin was on horseback at or near Haveman’s corner talking to some friends on the side walk. His horse’s head was north, or up the street, in the direction of Wheeler’s saloon. He had his back to Haveman’s corner, and his leg was thrown over the horn of his saddle, and his Winchester was lying across his lap, half cocked, which was the usual way he carried it for safety from accidental explosion. He could be seen from Wheeler’s saloon. A short time—a few moments—before the shooting, Springfield and appellant were near Wheeler’s saloon, and one of them was heard to say to the other: “That’s him,” or “is not that him down yonder now?” They went into the saloon, took a drink, and were next seen to emerge from the rear end of said saloon, in an alley between it and the adjoining building, with [685]*685double barreled shot guns in their hands. They proceeded diagonally across the street into the alley in rear of the building on the west side of the square; went down this alley rapidly a distance of six or seven hundred feet from Wheeler’s to the street west of Haveman’s, and then up said street to the front or southeast corner of Haveman’s, which brought them to the sidewalk within a few feet of where Allchin was sitting on his horse, as above described, with his back to them. Just as they got upon the sidewalk, some one exclaimed: “Lookout!” and the shooting commenced, and was kept up by Springfield and defendant until deceased fell from his horse, when they went up to the struggling and almost inanimate body and finished the work by other shots from gun and pistol into his head and face, saying, when they had finished by shooting his face off entirely: “That’s the way we do men who murder men on the streets.” Allchin did not fire a single shot, nor does it appear that he had time to do so, or even time to make an effort to do so. It does not appear that he even saw the parties, or could have seen them from the time they left Wheeler’s saloon until they fired upon him.
Evidence was adduced by appellant tending to show that he and Springfield went from Wheeler’s saloon to Haveman’s corner in the manner they did and armed as they were, for the purpose of arresting a fugitive deperado and murderer from Montgomery county, for whom they had a warrant of arrest, and who was reported to them as having been seen at or near Haveman’s corner just before they armed themselves and started by the alley way from Wheeler’s, and that their seeing Allchin when they reached the front of the Haveman corner upon the sidewalk was sudden and wholly unexpected.
Upon the above recited state of facts, it is streuously insisted that on account of the previous threats and acts of Allchin, the fact that he was thus suddenly seen carrying his gun in violation of his agreement, and which in itself was by said agreement a declaration of hostility, the appearances of danger to appellant and Springfield were such as were calculated to arouse a degree of anger, rage, sudden resentment or terror in persons of ordinary temper, sufficient to render their minds incapable of cool reflection, and that, having acted upon such appearances and from such impulses and 'passion, the issue of manslaughter was clearly raised, and should have been given in charge to the jury as a necessary part of the law of the case.
[686]*686Suppose, in the light of the most potent if not overwhelming facts to the contrary, we concede for the argument’s sake that, as appellant contends, the coming upon Allchin by appellant and Springfield was sudden and unexpected, and without premeditation or intention, could his mere presence, and his presence with his back to them at that, unaccompanied by a single hostile word or deed, save the single fact that he had his gun across his lap, have aroused in the mind of a person of ordinary temper any of the emotions of the mind calculated to render it incapable of cool reflection? But it is said his having his gun in his lap, and not in his scabbard, was according to his own solemn agreement and contract, an overt act of hostility? as much so as if it were directly drawn and presented upon them.
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White, Presiding Judge.
This appeal is from a judgment of conviction for murder of the second degree, with' the punishment assessed at imprisonment in the penitentiary for a term of eight years.
It is an undisputed, uncontroverted fact that this appellant and one Dick Springfield shot and killed the deceased, S. W. Allchin, with shot guns and pistols, as alleged in the indictment. This appellant does not deny but admits the fact, claiming that he was justifiable in so doing, or at most that his offense in so doing, under the facts developed on this trial, did not amount to murder, but was manslaughter. "No issue of manslaughter was submitted in the charge of the learned judge on the trial below, and the omission of the charge in this regard is urgently insisted upon as serious, radical error.
A brief resume of the facts is necessary in order to properly determine the merits of this objection to the charge. About a month before the day of this homicide, the deceased, Allchin, had killed one Chambers, a relative of this appellant and a deputy sheriff of Waller county. Appellant and Springfield were also deputy sheriffs. Out of the killing of Chambers by Allchin a bitter feud and hostility arose between the McDade or sheriff’s party and Allchin, which became of so serious a character that mutual friends of the two parties interfered to settle it, and finally succeeded in patching up or arranging an agreement or truce between them. By this agreement or truce it was, amongst other things, stipulated on behalf of All chin that he was not to go to Hempstead with his Winchester rifle in his hand, but was to carry it in his buggy, or holster or scabbard on his saddle when he was upon horseback, and that to carry it in [684]*684any other way was to be considered by the other party as a declaration of hostility. Hone of the McDades were to molest him in any way, and if either party heard of threats made by one against the other, or of acts against the agreement, they were to report it to mutual friends. A week or so before the killing Allchin, on one or two occasions, was seen by the McDades carrying his Winchester in his hands on the streets of Hemp-stead, and the McDades complained of it as exciting their serious apprehension of danger. Allchin was told in the final conversation, by mutual friends, that again to carry his gun in his hands would excite apprehension in the McDades’ minds and would be to them a declaration of hostility, and he assented to the justice of this statement. Several ruptures of the agreement were shown on the part of Allchin, and these breaches of the contract were known to defendant. A few days before the killing defendant received a written notice from Harvey that Allchin would be in town on Saturday, with his friends, to kill defendant; threats of death were communicated to defendant. The evidence shows threats upon the part of A11 oh in against defendant, some communicated and others not. On Saturday Allchin came to town on horseback, and was seen at several points in and upon the streets and at the depot. He had his Winchester rifle with him, and was handling it upon the depot platform. There was a public park or square in the center of the town, surrounded on the north and west by business houses. Haveman’s corner or business house was the corner house on the south of-the west block which fronted this square. On the northwest corner of this square was Wheeler’s saloon. Some time before the killing Allchin was on horseback at or near Haveman’s corner talking to some friends on the side walk. His horse’s head was north, or up the street, in the direction of Wheeler’s saloon. He had his back to Haveman’s corner, and his leg was thrown over the horn of his saddle, and his Winchester was lying across his lap, half cocked, which was the usual way he carried it for safety from accidental explosion. He could be seen from Wheeler’s saloon. A short time—a few moments—before the shooting, Springfield and appellant were near Wheeler’s saloon, and one of them was heard to say to the other: “That’s him,” or “is not that him down yonder now?” They went into the saloon, took a drink, and were next seen to emerge from the rear end of said saloon, in an alley between it and the adjoining building, with [685]*685double barreled shot guns in their hands. They proceeded diagonally across the street into the alley in rear of the building on the west side of the square; went down this alley rapidly a distance of six or seven hundred feet from Wheeler’s to the street west of Haveman’s, and then up said street to the front or southeast corner of Haveman’s, which brought them to the sidewalk within a few feet of where Allchin was sitting on his horse, as above described, with his back to them. Just as they got upon the sidewalk, some one exclaimed: “Lookout!” and the shooting commenced, and was kept up by Springfield and defendant until deceased fell from his horse, when they went up to the struggling and almost inanimate body and finished the work by other shots from gun and pistol into his head and face, saying, when they had finished by shooting his face off entirely: “That’s the way we do men who murder men on the streets.” Allchin did not fire a single shot, nor does it appear that he had time to do so, or even time to make an effort to do so. It does not appear that he even saw the parties, or could have seen them from the time they left Wheeler’s saloon until they fired upon him.
Evidence was adduced by appellant tending to show that he and Springfield went from Wheeler’s saloon to Haveman’s corner in the manner they did and armed as they were, for the purpose of arresting a fugitive deperado and murderer from Montgomery county, for whom they had a warrant of arrest, and who was reported to them as having been seen at or near Haveman’s corner just before they armed themselves and started by the alley way from Wheeler’s, and that their seeing Allchin when they reached the front of the Haveman corner upon the sidewalk was sudden and wholly unexpected.
Upon the above recited state of facts, it is streuously insisted that on account of the previous threats and acts of Allchin, the fact that he was thus suddenly seen carrying his gun in violation of his agreement, and which in itself was by said agreement a declaration of hostility, the appearances of danger to appellant and Springfield were such as were calculated to arouse a degree of anger, rage, sudden resentment or terror in persons of ordinary temper, sufficient to render their minds incapable of cool reflection, and that, having acted upon such appearances and from such impulses and 'passion, the issue of manslaughter was clearly raised, and should have been given in charge to the jury as a necessary part of the law of the case.
[686]*686Suppose, in the light of the most potent if not overwhelming facts to the contrary, we concede for the argument’s sake that, as appellant contends, the coming upon Allchin by appellant and Springfield was sudden and unexpected, and without premeditation or intention, could his mere presence, and his presence with his back to them at that, unaccompanied by a single hostile word or deed, save the single fact that he had his gun across his lap, have aroused in the mind of a person of ordinary temper any of the emotions of the mind calculated to render it incapable of cool reflection? But it is said his having his gun in his lap, and not in his scabbard, was according to his own solemn agreement and contract, an overt act of hostility? as much so as if it were directly drawn and presented upon them. If such had been the spirit and intent of the agreement as between the parties, the law could not afford to tolerate, much less recognize a doctrine so variant from and at war with every principle it maintains for the welfare of society and the protection of human life, and sanction or mitigate the taking of human life under such pretext. Because it was so “nominated in the bond” could neither justify nor mitigate or excuse it, if in contravention of the law. The law can not and will not permit men to kill each other with impunity, notwithstanding they may have bound themselves to that effect with each other by the most solemn obligations.
It was held at one time in Kentucky “that if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only security, he may kill that enemy whenever and wherever he gives him a chance, and there is no sign of relenting.” (Carico v. Com., and Phillips v. Com., Horrigan & Thompson’s Self Defenses, pp. 383-389.) But this doctrine has been overruled even in that State (Bohannon v. Com., Id., 395), and has never, so far as we are aware, been recognized as the law elsewhere. Such a doctrine would make the bare presence of an enemy an overt act justifying his destruction.
But, it is said, Allchin was not only guilty of a “declaration of hostility” by the manner in which he was carrying his gun, but, in addition thereto, he had made threats that he would kill the McDades or any of them he might get an opportunity to kill, on that very day. In Johnson v. The State, 27 Texas, 758, Judge Moore says: “In no case under the provisions of the Code, or out of it, if we were permitted to look elsewhere to [687]*687ascertain the law upon the subject, can it be held that mere threats, unaccompanied by some demonstration from which the accused may reasonably infer the intention of their execution by the deceased, either justify such homicide or reduce it from murder to manslaughter. * * * The doctrine contended for must, therefore, be narrowed down to this sipaple proposition: that the mere fact of being encountered or overtaken in the street or public highway by one who has threatened another’s life some months before, without any act whatever indicative of an intention of then carrying such threats into execution, is 'adequate cause’ to excite such 'anger, rage, sudden resentment or terror’ as renders the mind ‘incapable of cool reflection.’ The bare statement of this proposition is sufficient for its refutation. If such was the case, the language of passion, forgotten with the occasion which gave it utterance, the idle talk of the silly or the inebriate, must be paid for with the penalty of life. A full floodgate would be given to the most wicked passions, and murder, fearful as it already is, in a ten fold greater degree would stalk through the land, clothed in the panoply of law.” (Penal Code, art. 594; Willson’s Crim. Stats., sec. 1009.)
Under our statute with regard to threats as evidence (Penal Code, art. 608), “it is not practicable to fix on what the act manifesting the intention of the deceased to execute his threats shall be, but it must be some act reasonably calculated to induce the belief that the threatened attack has then commenced to be then executed, and not a mere act’ of preparation to execute the threats at some other period of time, either speedy or remote.” (Irwin v. The State, 43 Texas, 236; Lynch v. The State, 24 Texas Ct. App., 350; Brooks v. The State, Id., 274; Willson’s Crim. Stats., sec. 1053.)
We are of opinion, for the reasons above given, that the court did not err in declining to submit in the charge to the jury the issue of manslaughter as an issue in this case. And for the reasons above giVen, we are further of opinion that the court did not err in refusing to give the following special requested instruction asked in behalf of defendant, viz: “If you believe from the evidence that the defendant and the deceased, either in person or by parties representing them, made an agreement, the object of which was to prevent further hostilities and to preserve the peace, and that they agreed on certain conditions which were to be observed by both parties, the [688]*688violation of Avhich Avas to nullify the agreement and give notice that it Avas terminated, and if you further believe that after such agreement was made, if any ever was, that the dedeceased, Allchin, in violation of his agreement, if any, did any act or acts in violation thereof, and that the defendant knew, or heard, of the same, and honestly believed that the same was a declaration of hostility, and that he was in danger of death or serious bodily harm; and if you further believe that, after the agreement, if any, was broken by the deceased, the defendant saw deceased in the act of violating his agreement, and that so seeing him, defendant believed himself in immediate danger of death or serious bodily harm, then defendant had a right to act on the appearances of danger to himself, if any, and though defendant may have been mistaken in his belief of immediate danger of death or bodily harm, yet if he honestly believed, and had reason to believe, that he was in such danger, and honestly acting on such appearances he killed Allchin, he would be guilty of no offense, and you will find him not guilty.”
“If the jury believe from the evidence that there was a contract between the deceased and the defendants, by the terms of which he was not to carry his Winchester in his hands, or otherwise than attached to his saddle in a scabbard, or in his buggy, and if they further believe that the said contract was made, and that deceased failed to conform to the same, and that complaint was made to the parties negotiating between the deceased and the defendants concerning such contract and breach thereof, and that said parties notified the deceased that again to carry his weapon in a manner not provided in said contract would be regarded as a breach thereof and a hostile demonstration, but that such was the understanding betAveen the parties; and if the jury believe that at the time of the killing the deceased with such knowledge on his part, and the defendants with such understanding on their part, found the deceased carrying his weapon in an attitude which was in violation of the contract, Avhat the parties regarded as a hostile demonstration, and came suddenly upon him, and thereupon shot and killed the deceased, then the defendants are not, in law, guilty, and you will acquit by your verdict.”
The charge of the court on self defense was, in our opinion, sufficient and pertinent to the facts in evidence, if, indeed, the issue of self defense could in any manner be said to have been [689]*689legitimately raised by the facts. (Willson’s Crim. Stats., secs. 969, 970, 978.) The evidence totally fails to show any real or apparent danger at the time appellant and Springfield opened fire on Allchin. He was sitting on his horse, with his back to them, his gun across his lap, talking to some party or parties on the sidewalk; he did not and could not have seen them, and if he grasped his gun at all it was after the appearance of appellant and Springfied upon the sidewalk, with their guns, had occasioned some one to exclaim “look out;” and then, before he could have raised his gun from his lap he was fired upon by these parties, and his gun was never in a condition to be used upon them after they commenced the attack.
Upon “reasonable doubt” the court instructed the jury that “the defendant is presumed to be innocent until his guilt is established by the evidence to the satisfaction of the jury beyond a reasonable doubt.” This was specially excepted to because of the omission of the word “legal,” as used in the statute before the word “evidence.” (Code Crim. Proc., art. 727.) Whilst it has been uniformly held and recommended by the court that reasonable doubt should be charged in the exact language of the statute (Bramlette v. The State, 21 Texas Ct. App., 611), we have never held that a substantial compliance with the terms of the statute was not sufficient. (Willson’s Crim. Stats., 2426, 2427, 1071.) It is not perceived how the omission of the word “legal” before the word “evidence” could in any manner have misled the jury, or have proved prejudicial in any manner to the rights of the accused.
In the seventh assignment of error it is complained that “the court failed to instruct the jury that the declaration of Allchin to Felker that threats had been made against him by defendant was not any evidence that such threats were made, and that they should not consider such statement as a part of the evidence for that purpose, when it was expressly requested so to charge by defendant.” This evidence was drawn out by defendant upon the direct examination of his witness Felker, and neither the prosecution nor the court was responsible for it. If the defendant elicits testimony adverse to himself he must abide the consequences. (Speight v. The State, 1 Texas Ct. App., 551; Moore v. The State, 6 Id., 562.)
One of the grounds of motion for new trial was that the verdict of the jury was arrived at by unfair and illegal means, and was in fact decided by lot or means equivalent thereto. A juror [690]*690made affidavit to this effect. But in addition to the fact that no complaint or objection was heard from him when the jury was polled after the verdict was returned into court, he is flatly and positively contradicted upon the point relied upon, by the affidavits of ten of his fellow-jurors filed by the State in answer to this ground of the motion. It was not error to overrule the motion based upon this objection to the. ver diet.
Opinion delivered May 18, 1889.
We have examined and discussed all the grounds mainly relied upon by able counsel for appellant, and besides have read re-read and maturely considered this voluminous record with a view of seeing whether in the conduct of the trial any proceedings were allowed likely to impair the fairness and impartiality of the /trial, and impeach the legality of the conviction; and we are constrained to say we have found none. ' The trial has been fair and impartial so far as we have been able to judge of it from the record, and, considered in the light of the record, we think appellant has every reason to congratulate himself upon the mildness of the punishment awarded him. The judgment is affirmed.
Affirmed.