HENDERSON, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
The theory of the State was, that appellant entertained a grudge
against deceased because deceased had killed his brother, Tom Poole, some months before the homicide; that the feud was renewed and intensified on account of the difficulty between defendant and the son of deceased on Saturday night before the homicide; that appellant, at the time of the homicide, took advantage of deceased and shot him from the side door of Baker’s saloon, deceased at the time standing in the street and making no hostile demonstration against appellant.
Appellant’s theory was that deceased had repeatedly threatened his life, and on the morning of the homicide cursed and abused him; that the acts and conduct of deceased during the dajq and preceding the homicide, were calculated to and did create fear and apprehension on the part of appellant that he would be attacked by deceased; that on coming out of the saloon at the time of the homicide he saw deceased standing in front of the door some fifteen or twenty feet out in the street, and that deceased immediately made a demonstration as if to draw a pistol, when he shot and killed deceased, and that he was justified in doing so.
Appellant assigns as error the action of the court in overruling his motion for continuance. Among other witnesses appellant claims particularly that the court should have continued the case on account of the absence of Walter McLean, Walter Austin, Prank Sessions, C.
K.
Baxter and Bernie Looney, who had been summoned and were not present.
As to these witnesses we think the diligence was sufficient. We' think the testimony of Walter McLean was material, inasmuch as the State’s testimony tended strongly to show that appellant came out of .the side door of Baker’s saloon, and fired the fatal shot at deceased when deceased was unaware of his presence and making no demonstration against him. According to appellant’s testimony he was coming out of the front door of Baker’s saloon, when he saw deceased standing in front of said door, and that he immediately made a demonstration as if to draw a pistol, when he shot him. He also testified that McLean was with him at the time, and there is other testimony to the same effect. By McLean he proposed to prove, substantially, the same facts as testified by himself.
Unquestionably the testimony of this witness was upon the vital issue in the case, and was material to appellant’s defense. The testimony of some of the other absent witnesses, according to appellant’s statement, would also corroborate him as to what occurred in the difficulty or immediately before. The testimony of some of these witnesses is also material on behalf of appellant to show what Claude Poole and Grover Poole were doing shortly before the homicide, inasmuch as there is testimony in the record showing that they participated in the homicide, and there is some suggestion as to a conspiracy between them and appellant to bring on the difficulty, and this conspiracy was asserted by the State during the progress of thé trial. In our opinion the case should have been continued on account of the absent witnesses, or a new trial should have been granted after the testimony was developed and conviction obtained.
Appellant also assigns as error the action of the court in the"impanel
ment of the jury. The bill shows that four jurors, who had been summoned as special veniremen in the case, were excused by the court on his own motion, over the objection of the defendant, because said jurors stated on voir dire that they had not paid their poll tax for the year 1903 prior to the first day of February of said year. Under the statutes and Constitution of this State the fact that a juror has not paid his poll tax goes to his qualification. However, as we understand the statute, this is made a ground of challenge, and not an absolute disqualification of the juror. Art. 676, Code Crim. Proc., says, that no one who is subject to the third, fourth or fifth clauses of challenge, under article 673, shall be impaneled as a juror. The poll tax requirement is subdivision 1 of said article, and so is not included in either of said subdivisions which absolutely disqualify the juror. And this article, as amended by the last Legislature, which passed an act with reference to juries under the amendment of article 6, section
2
of the Constitution, adopted by the people in 1901, leaves the subject of challenging a juror on the ground that he was not a legal voter exactly as it was before. See amendment to the Const., Gen. Laws 27th Leg., p. 322; and amendment relating to qualification of jurors, Acts Spec. Sess. 27th Leg., 1903, p. 15.
There was no error in the action of the court refusing to require the district attorney to make a statement prior to the introduction of evidence as to what the State would undertake to prove. Art. 697, Code Crim. Proc.; Holsey v. State, 24 Texas Crim. App., 35.
Hor did the court err in retiring the jury when appellant’s attorney was making a rebutting statement in reply to a statement of the district attorney who had previously stated, in regard to the admission of certain testimony, as to what Grover Poole said or did during the difficulty, that he expected to show a conspiracy existed on the day of the homicide between defendant and Grover and Claude Poole to kill deceased. Of course, both statements should have been presented to the court, and the jury might well have been present at the statement of defendant’s counsel as well as when the statement of the district attorney was made. However, it may not have occurred to the court that there was any cause to retire the jury, until the question had been raised and presented by counsel for the State. At any rate, we fail to see any prejudice resulted to appellant from the action of the court in this regard.
We do not believe that it was competent to introduce before the jury what Grover Poole may have done and said on Saturday night preceding the homicide, during the difficulty with Stanley Jett, son of deceased, so far as anything said or done by said Grover was said and done in the absence of appellant. If, however, Grover Poole made any threat of further or future violence towards deceased, which was agreed to or participated in by appellant, the same was admissible ii> evidence.
In our opinion it was entirely competent for defendant to state the purpose of offering certain evidence as to the details of the killing of
Tom Poole by deceased. The court might, in his discretion, have retired the jury while such statement was being made. Appellant complains in this connection because the court refused to permit him to introduce the details of the killing of Tom Poole by deceased Jett. He contends that this evidence was admissible in order to determine the state of mind of appellant as to deceased Jett. While the killing of Tom Poole (a brother of appellant) by deceased Jett was undoubtedly the origin of the feud which resulted in the homicide for which appellant was here being tried, yet it does not occur to us that the details of said difficulty were admissible in favor of appellant.
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HENDERSON, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
The theory of the State was, that appellant entertained a grudge
against deceased because deceased had killed his brother, Tom Poole, some months before the homicide; that the feud was renewed and intensified on account of the difficulty between defendant and the son of deceased on Saturday night before the homicide; that appellant, at the time of the homicide, took advantage of deceased and shot him from the side door of Baker’s saloon, deceased at the time standing in the street and making no hostile demonstration against appellant.
Appellant’s theory was that deceased had repeatedly threatened his life, and on the morning of the homicide cursed and abused him; that the acts and conduct of deceased during the dajq and preceding the homicide, were calculated to and did create fear and apprehension on the part of appellant that he would be attacked by deceased; that on coming out of the saloon at the time of the homicide he saw deceased standing in front of the door some fifteen or twenty feet out in the street, and that deceased immediately made a demonstration as if to draw a pistol, when he shot and killed deceased, and that he was justified in doing so.
Appellant assigns as error the action of the court in overruling his motion for continuance. Among other witnesses appellant claims particularly that the court should have continued the case on account of the absence of Walter McLean, Walter Austin, Prank Sessions, C.
K.
Baxter and Bernie Looney, who had been summoned and were not present.
As to these witnesses we think the diligence was sufficient. We' think the testimony of Walter McLean was material, inasmuch as the State’s testimony tended strongly to show that appellant came out of .the side door of Baker’s saloon, and fired the fatal shot at deceased when deceased was unaware of his presence and making no demonstration against him. According to appellant’s testimony he was coming out of the front door of Baker’s saloon, when he saw deceased standing in front of said door, and that he immediately made a demonstration as if to draw a pistol, when he shot him. He also testified that McLean was with him at the time, and there is other testimony to the same effect. By McLean he proposed to prove, substantially, the same facts as testified by himself.
Unquestionably the testimony of this witness was upon the vital issue in the case, and was material to appellant’s defense. The testimony of some of the other absent witnesses, according to appellant’s statement, would also corroborate him as to what occurred in the difficulty or immediately before. The testimony of some of these witnesses is also material on behalf of appellant to show what Claude Poole and Grover Poole were doing shortly before the homicide, inasmuch as there is testimony in the record showing that they participated in the homicide, and there is some suggestion as to a conspiracy between them and appellant to bring on the difficulty, and this conspiracy was asserted by the State during the progress of thé trial. In our opinion the case should have been continued on account of the absent witnesses, or a new trial should have been granted after the testimony was developed and conviction obtained.
Appellant also assigns as error the action of the court in the"impanel
ment of the jury. The bill shows that four jurors, who had been summoned as special veniremen in the case, were excused by the court on his own motion, over the objection of the defendant, because said jurors stated on voir dire that they had not paid their poll tax for the year 1903 prior to the first day of February of said year. Under the statutes and Constitution of this State the fact that a juror has not paid his poll tax goes to his qualification. However, as we understand the statute, this is made a ground of challenge, and not an absolute disqualification of the juror. Art. 676, Code Crim. Proc., says, that no one who is subject to the third, fourth or fifth clauses of challenge, under article 673, shall be impaneled as a juror. The poll tax requirement is subdivision 1 of said article, and so is not included in either of said subdivisions which absolutely disqualify the juror. And this article, as amended by the last Legislature, which passed an act with reference to juries under the amendment of article 6, section
2
of the Constitution, adopted by the people in 1901, leaves the subject of challenging a juror on the ground that he was not a legal voter exactly as it was before. See amendment to the Const., Gen. Laws 27th Leg., p. 322; and amendment relating to qualification of jurors, Acts Spec. Sess. 27th Leg., 1903, p. 15.
There was no error in the action of the court refusing to require the district attorney to make a statement prior to the introduction of evidence as to what the State would undertake to prove. Art. 697, Code Crim. Proc.; Holsey v. State, 24 Texas Crim. App., 35.
Hor did the court err in retiring the jury when appellant’s attorney was making a rebutting statement in reply to a statement of the district attorney who had previously stated, in regard to the admission of certain testimony, as to what Grover Poole said or did during the difficulty, that he expected to show a conspiracy existed on the day of the homicide between defendant and Grover and Claude Poole to kill deceased. Of course, both statements should have been presented to the court, and the jury might well have been present at the statement of defendant’s counsel as well as when the statement of the district attorney was made. However, it may not have occurred to the court that there was any cause to retire the jury, until the question had been raised and presented by counsel for the State. At any rate, we fail to see any prejudice resulted to appellant from the action of the court in this regard.
We do not believe that it was competent to introduce before the jury what Grover Poole may have done and said on Saturday night preceding the homicide, during the difficulty with Stanley Jett, son of deceased, so far as anything said or done by said Grover was said and done in the absence of appellant. If, however, Grover Poole made any threat of further or future violence towards deceased, which was agreed to or participated in by appellant, the same was admissible ii> evidence.
In our opinion it was entirely competent for defendant to state the purpose of offering certain evidence as to the details of the killing of
Tom Poole by deceased. The court might, in his discretion, have retired the jury while such statement was being made. Appellant complains in this connection because the court refused to permit him to introduce the details of the killing of Tom Poole by deceased Jett. He contends that this evidence was admissible in order to determine the state of mind of appellant as to deceased Jett. While the killing of Tom Poole (a brother of appellant) by deceased Jett was undoubtedly the origin of the feud which resulted in the homicide for which appellant was here being tried, yet it does not occur to us that the details of said difficulty were admissible in favor of appellant. The general rule is that the details of a former difficulty, even between the same parties, is inadmissible, and much more so where the difficulty is between other parties. Heffington v. State, 41 Texas Crim. Rep., 315, and authorities there cited. Here the former difficulty and homicide was not between the same parties, and we see nothing in that difficulty or the peculiar circumstances under which it occurred that would shed light on this homicide. Accordingly we hold that the court did not err in excluding this evidence.
It is complained by appellant, in his tenth bill of exceptions, that the court committed error in refusing him the privilege of showing certain evidence of a negative character; that is, he states the court permitted the State to prove by R. M. Johnson that he was within a few feet of deceased when the shooting commenced; that the first thing that attracted his attention was a shot from Baker’s saloon, and that at that time deceased was standing twelve or fifteen feet out in front of said saloon, and that J ett had not fired up to the time he looked at him and after hearing the first shot. Defendant then proposed to show that, standing as he was, and not being particularly attracted to Jett until after said first shot, Jett might have made some demonstration and he not have seen it. The court refused to permit this testimony on the ground that it was of a negative character. We believe that it was competent for appellant to have proven the facts alleged by said witness. Appellant claimed, as a part of his defense, and proved by witness, that J ett did make some demonstration before he fired the first shot. The effect of Johnson’s testimony certainly tended to show that Jett was doing nothing. On cross-examination it was permissible to prove by said witness that he was not looking at Jett prior to the first shot, and that he did not see whether he made any demonstration or not, and this could be elicited in the manner here proposed. The court is criticized in this and several other bills in regard to his actions and statements, when counsel for appellant made objections to testimony. Here the bill shows that the court interposed and stated to counsel, as follows: “I wish to state right here that whether State’s counsel objects to this question or not, the court is not going to permit any question of that kind, which can only bring out negative testimony. It impresses me that it is nothing but a consumption of time, and I will stop you every time I think you ask a question that is not proper, whether State’s counsel objects or not, and will give you
jour bill of exceptions every time I stop you.” Ordinarily the duties of a judge will be best conserved by merely ruling on the admissibility of testimony; and, if necessary, stating his reasons therefor. Sometimes it may be permissible to admonish against asking questions that are obviously illegal and objectionable, but we have seen nothing here authorizing the court to interpose as was done. We further believe that the court should be careful in admonishing counsel, either for the State or defendant, lest in so doing the influence of counsel may he improperly weakened or disparaged with the jury.
Appellant proved by the witness Ben Soileau that he met defendant at Frank Brown’s saloon, about 2 o’clock on the day of the homicide, the homicide occurring an hour or two thereafter; that appellant and Dave Craft and witness were talking and drinking; that he told appellant he had heard Jett threaten him that morning; that directly afterward they started down the street, and he asked appellant if he was not coming too. And in this connection appellant proposed to prove that he stated to the witness Soileau at the time that he did not want to get cooped up in one of those saloons by Jett and his crowd. The State objected to this latter portion of the testimony on the ground that it was self-serving, and the court sustained the objection. Appellant claims that this testimony was admissible in order to show the condition of the defendant’s mind, and that he was desirous of avoiding a difficult)', and that he apprehended danger from deceased and his crowd should they get him in some place where they could coop him up or get the advantage of him. While this was a declaration of defendant, it was anterior to the difficulty, and was -a fact tending to show his then condition of mind and his apprehension of the difficulty with deceased. We believe that it should have gone to the jury for what it was worth, as tending to shed light on appellant’s frame of mind as to deceased at the time of the difficulty and killing which occurred an hour or two thereafter.
What is here said is applicable to appellant’s seventeenth bill of exceptions. ' That is, appellant could show that when he was advised by his brother George not to have a conflict with Jett, and defendant said to him he did not want to have any trouble with Jett and that he would not if he could avoid it, but that he might have, as Jett was drunk, and that he was afraid Jett would do him harm or attempt to kill him. While it is true this was a statement of appellant with reference to Jett, it was not made after the homicide but shortly before it. The declarations or conversations between defendant and third persons with reference to deceased would not, ordinarily, be admissible, yet it occurs to us that, under the circumstances of this case—it having been shown by a number of witnesses the condition of deceased, that he was drinking and cursing and abusing appellant during that day, and evidently pursuing him— we believe it was competent to show that appellant declared to others that he knew deceased was seeking a difficulty with him, and that it was his purpose to avoid the difficulty if he could. Of course, such testimony
might be manufactured, and be self-serving; but we are not passing here on the credibility of the witness but on the admissibility of the testimony as going to show appellant’s condition of mind before and at the time of the difficulty. And it is no answer to this proposition to say that appellant could take the stand and testify himself. The jury might not believe him, whereas they might believe another witness who testified to acts and declarations of appellant before the homicide tending to show that he was desirous of avoiding any difficulty. At le.ast, in our opinion, it should have gone to the jury for what it was worth, to be weighed by them. Simmons v. State, 31 Texas Crim. Rep.,
227.
In this connection we would state that we do not believe it was permissible for appellant to show, as was attempted, that Claude Pool, in the conversation on that same day, told appellant not to have any violence with deceased, that he (deceased) would shoot him down like a dog. That was merely the opinion of an outsider, and was not admissible as testimony.
We believe it was competent for the appellant to have shown by witness McDaniel how it was that Jett, the deceased, came to make the threat to him against appellant on the evening of the day of the homicide, to wit: Said witness stated that deceased told him, about
2
o’clock on the evening and just before the homicide, that he was going to send every damn one of them home feet foremost before he left the street—• meaning the Poolesi® Appellant then proposd to show by said witness how deceased came to make such expression, to wit: That witness was then urging deceased to go home; that he was drunk and mad, and that after he slept over it he might not feel so violently inclined toward defendant and his family in general. Of course, as stated by the court, the threat was already proven; but it stood alone before the jury, and they might think it strange that deceased made a threat, without any statement in that connection to show how he came to make it, whereas the colloquy which called it forth showed it came about in a natural way, and so would serve to strengthen the testimony of the witness as to the main fact proven.
By appellant’s twenty-fourth bill of exceptions it is shown that, while State’s witness Johnson was on the stand, in connection with the introduction of some of his evidence as to the acts of Grover and Claude Poole with reference to the difficulty between defendant and Stanley Jett on the Saturday night preceding the difficulty, the district attorney stated to the court, in the presence of the jurjq that the State’s theory was that there was a conspiracy between defendant and Grover and Claude Poole on the day of the homicide to kill deceased. In rebuttal of this statement, appellant proposed to prove by said witness Johnson that he was present in court when the case against Claude and Grover Poole was called for trial (they being indicted for this homicide), and that he then heard the district attorney nolle pros all such cases, stating orally to the court that the State had no testimony showing any con
nection of Grover and Claude Poole with the killing of Jett. This testimony was objected to and excluded. Appellant claimed that it was admissible to answer the State’s intimations and statements as to a conspiracy between said parties. It does not occur to us that this testimony was competent or admissible. If the State had introduced evidence on this subject, then testimony in rebuttal thereof would have been admissible. In the absence of such testimony in response to the statements of the district attorney, objections should have been made to said statements, or a charge asked from the court to the jury expunging the same from consideration.
A number of exceptions were saved, to the court’s charge, many of which were to definitions which, in our opinion, were properly embodied in the charge. However, an objection was taken to the charge of the court because the effect thereof was to deprive appellant of the defense of apparent danger. While the court did instruct the jury that appellant had the same right to act in self-defense on apparent as well as on actual danger, yet when the judge came to appljdng the law to the facts, all the charges on self-defense are predicted on an “actual attack.”
As we understand the evidence on the part of the appellant there was no actual attack by deceased on appellant at the time of the homicide, but there was preparation to attack. Appellant testified that he started out of the saloon at the front door. “I got to a screen on the right-hand side of the building, near the east side door; I saw Jett near the corner, about three or four steps from the outside of the sidewalk; he was walking toward the building; he threw his left hand to his scabbard, and with his right hand attempted to draw his gun. Up to that time I had made no demonstration to draw mine. My pistol was in my hip pocket, and I drew it and fired it at him to stop him from coming to me. I saw Eogers; he jerked his gun about the same time Jett did. I fired, and the last I saw of Jett he was walking backwards off the sidewalk. He had not got his pistol out when I fired. Within a second the next shot came. I did not hear anything except the shots. It was not a second after the first two shots that I heard the third one. I stepped behind the screen and ran out of the back door of the saloon. As I ran there were two more shots fired around the corner.”
Under this phase of the case, as stated, there was a hostile demonstration, but up to the time appellant fired there was no actual attack on the part of deceased or Eogers. Under these circumstances, it occurs to us, the court should have distinctly told the jury that it was not necessary, in order that appellant assert his right of self-defense, that he await an actual attack. If deceased made a demonstration as if to draw a pistol, and appellant believed he was drawing a pistol for the purpose of making a deadly assault on him, he had a right to anticipate his movements and shoot in self-defense. Phipps v. State, 34 Texas Crim. Rep., 560; Brady v. State, 65 S. W. Rep., 521.
In the view we take of this case the court was not authorized to charge on an attack by deceased of a violent and dangerous character less than an assault with intent to kill or do serious bodily injury, as the facts do not warrant such a charge. Orman v. State,
22
Texas Crim. App., 604.
Appellant has a number of other assignments of error, which he discusses at some length in his brief; but we do not deem it necessary to pass upon the same. For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.