Appellant was convicted of burglary, and his punishment assessed at two years confinement in the penitentiary.
The indictment contains two counts. The first charges burglary by shooting a gun into the dwelling house of Charles Schmidt with intent to injure Charles Schmidt; and the second count charges burglary in that said appellant did break and enter with intent to commit a felony in this: That he, the said T.L. Railey, did then and there discharge firearms, to wit, a gun, into the said dwelling house of the said Charles Schmidt, with the intent then and thereby to unlawfully kill and murder the said Charles Schmidt. The court submitted alone the first count in the indictment.
Bill of exceptions No. 1 complains that before this cause was called for trial, cause No. 15548 being upon call, the district attorney filed his nolle prosequi dismissing cause No. 15548 pending in said court, wherein this defendant was charged with assault with a gun upon Charles Schmidt, the alleged injured party in this case, with the alleged intent to murder the said Charles Schmidt, alleged
to have occurred on the 30th day of April, 1908, in Harris County, Texas, and which cause was based upon the same identical facts as are the basis of this transaction, to wit: the shooting into the house of the alleged injured party, Charles Schmidt, and to which motion to nolle prosequi, by the district attorney, defendant objected on the ground that said cause No. 15548, being based upon the same identical facts and the same identical transaction upon which the indictment in this cause was based, that it was important to a fair judicial determination of the charge in this case that said cause No. 15548 be first tried that the issue of whether or not defendant, if guilty, was guilty of assault to murder, or of aggravated assault, or not guilty, be determined, that he might be able to present to the court such pleas of former jeopardy or former acquittal, as might arise from the verdict of the jury under a prosecution of said cause No. 15548; because the offense of burglary by the law of this State, as defined by articles 838 and 841 of the Penal Code, could only be constituted by an unlawful entry with the intent to commit theft, or a felony, and should the jury in said cause No. 15548 find defendant guilty of aggravated assault under the facts in evidence in this case, and it is here stated as a fact that defendant then and there claimed that the facts which would be adduced on the trial on behalf of defendant would show, that immediately prior to the shooting, the alleged injured party, Charles Schmidt, slapped the wife of defendant in the face in view of defendant, defendant being at that time 200 or 300 feet distant, and also called defendant's wife vile names, which insulting conduct as to said names was made known to defendant as soon as he reached the place where his wife was, he having, immediately upon seeing said Schmidt slap his wife, gone hastily towards where his wife and said Schmidt were, and on his approach said Schmidt went into his own house, followed by his own wife, and upon defendant getting to where his, defendant's, wife was, she stated to him that said Schmidt, in addition to striking her, had called her `a bitch' and `a whore,' and had used other insulting language to and towards her, and that defendant was greatly outraged by said matters, and immediately went into his own house, which was within a few feet of where said assault occurred, and got his shotgun and went upon the premises of the said Schmidt, and called to him from the gate to come out of the house that he wanted to see him, and hearing no response went through the gate to the immediate yard surrounding the house of said Schmidt and towards the door of the said house, and had passed beyond a certain window going towards said door when he heard the voice of said Schmidt in said house at about said window, and turning and stepping back to a point opposite said window saw said Schmidt and called to him to come out of the house, that he wanted to see him, and said
Schmidt then made a demonstration to reach for a pistol, according to the testimony of defendant, which defendant testified he saw lying on the table near said Schmidt, and that defendant called to him to stop, and said Schmidt not stopping defendant fired one barrel of his double-barreled shotgun, which was loaded with small shot, at said Schmidt, the other barrel being loaded but not discharged, and defendant stating that the reason he did not fire said other barrel, which there was nothing to prevent him from doing, was that he saw, after he had fired the first barrel, that said Schmidt did not appear to intend to make any further attempt to injure him, defendant, then, that the shooting into said house could not amount to a felony, and therefore could not constitute such an entry as would go to constitute the act of burglary under the law as defined in said articles 838 and 841 of the Penal Code, and that it was necessary to try cause No. 15548 first in order to ascertain the above facts.
As appellant insists, article 838 of the Penal Code provides that burglary is constituted by the entrance of a house by force, threats or fraud with intent to commit a felony or the crime of theft. Article 839 of the Penal Code provides that he is also guilty of burglary who, with intent to commit a felony or theft by breaking, enters the house in the daytime. Article 840 of the Penal Code provides that it is not necessary that there should be an actual breaking to constitute the offense of burglary, except when the entry is made in the daytime. Article 841 provides the entry is not confined to the entrance of the whole body. It may consist of the entry of any part for the purpose of committing a felony, or it may be constituted by the discharge of firearms or other deadly missiles into the house with the intent to injure the person therein. Appellant contends that article 841 does not define a separate and distinct offense, but is explanatory of articles 839 and 840, and that there can not be burglary unless the intent is to commit a felony or the crime of theft, and, therefore, to discharge firearms into the house with intent to injure, an intent to injure not necessarily being a felony, that it would not be burglary unless there was a felonious purpose. In the case of Garner v. State, 31 Tex.Crim. Rep., we used this language: "Article 707 of our Penal Code (the old number which corresponds with article 841 of the present Code) defining what constitutes an entry in burglary, declares that `it may be constituted by the discharge of firearms or other deadly missile into the house, with intent to injure any person therein.' Under this provision of the statute, to discharge firearms into a house with intent to injure any person therein is per se burglary, and constitutes all the force and entry that is necessary and essential to that crime. Our conclusion is, that the indictment in this case is not defective, for the reason stated by appellant's counsel
in his motion to quash; and we are further of opinion, that it sufficiently charges a burglary by the discharge of firearms into a house with intent to injure the persons therein. The indictment is in substantially the same language as that used for a similar offense in the case of Searcy v. State, 1 Texas Crim. App., 440, and which indictment was pronounced to be good by the opinion of the court in that case." We hold that article 841 is but an addition to articles 838 and 839, and that the true construction to be placed upon it would be to make article 838 read as follows: The offense of burglary is constituted by entering a house by force, threats or fraud at night, or in a like manner entering a house and remaining concealed therein with the intent in either case to commit a felony or the crime of theft, or it may be constituted by the discharge of firearms or other deadly missile into a house with intent to injure the person therein. The Code itself provides that same must be construed as one harmonious whole and each provision thereof given validity and force without regard to the distinction that existed at common law between the construction of civil and criminal statutes. In the light of this rule of construction, both statutory and common law, we hold that it would be a strained construction to hold that the intent to injure must be a felony since this would destroy the liberal wording and evident intent of the law. Article 838 says if one enters a house with intent to commit a felony he is guilty, and then article 841, which makes it a burglary to shoot firearms into a building with intent to injure an occupant of the building, clearly was designed and intended to set up the offense or mode and method of committing the crime of burglary. In the case of Hammond v. State, 29 Texas Crim. App., 445, a converse rule appears to have been laid down to that here announced, but a careful reading of said last cited decision would show that it was only articles 838 and 839 there under consideration and not article 841, and any expressions in said opinion to the contrary clearly appear to be dicta. So, reverting to the action of the district attorney, complained of in the above bill of exceptions, we say the court did not err in permitting the dismissal of the assault with intent to murder case, since the State can carve, in drawing its indictments, any offense defined by the statute out of any given state of facts, dismiss either one of the indictments and try for the other. Centainly, if it is per se burglary to shoot into a house with intent to injure any person therein, it would become utterly immaterial whether appellant was guilty of murder or assault. In other words, being per se burglary to shoot into a house with intent to injure an occupant thereof, it becomes immaterial whether the party had a felonious purpose or not, and if appellant being apprised of the insults and indignities offered his wife, shot at the prosecuting witness upon first meeting and the same should only be aggravated
or simple assault, waiving the burglary feature, still these facts would become immaterial if he intended to injure the party in the house. The object and purpose of article 841 of the Penal Code was to protect the sanctity of the home and to punish the ruthless shooting into same by anyone where the purpose of so doing was to injure an occupant of said home or house. It follows, therefore, the court did not err, from any standpoint, in permitting the district attorney to dismiss the indictment above discussed.
Bill of exceptions No. 2 complains of the same matter, in substance, discussed in bill No. 1.
Bill of exceptions No. 3 complains that the regular panel of jurors for the week having been tested on their voir dire as to their qualifications, and only twenty-two having qualified, the court ordered twenty-five talesmen to be brought in to be tested on their voir dire out of which to complete the list of twenty-four names, from which list the parties should select a jury, and thirteen of said talesmen jurors having qualified, defendant then requested the court to have the names of said twenty-two jurors of the regular panel and all of said talesmen who had qualified placed in the box and shaken up and drawn from the box in the regular way until a panel of twenty-four was completed, which request the court refused to grant as to the said twenty-two regular jurors, but did grant said request insofar as securing the names of two additional jurors from said list of talesmen was concerned. There was no error in the ruling of the court.
Bill of exceptions No. 6 complains that defendant having called Frank Frost, who was duly sworn as a witness in his behalf, and who testified that he knew the complaining witness, Charles Schmidt, and his wife, and that he, witness, on a certain occasion when said Schmidt had taken up the horse of the witness went to the place of residence of the said Schmidt, and that said Schmidt, without provocation or excuse, spoke in a loud and angry manner to him, but spoke in Mexican and that he could not understand that language, but the conduct of the said Schmidt was violent, which testimony, after it was given, was, upon motion of the State, stricken out, over the objection of defendant made at the time; and appellant further offered to prove by said witness the above said facts to which he had testified, and further, that the wife of said Schmidt at said time and in the same connection, attempted to strike the witness, which was also without provocation or excuse, and which testimony the witness would have given had he been permitted; and which testimony was then and there stated to be offered in contradiction of the statement of the said Schmidt that he was not a man that ever got mad, as claimed by defendant in this case, and that he never used violent or profane or indecent language or conduct to or towards anyone, and that his wife was never violent in
language or conduct, and as an impeachment of said Schmidt and his wife as witnesses in this case, and as shedding light upon the probable conduct of said Schmidt and his said wife at the time said Schmidt assaulted the wife of defendant, as claimed by defendant and his wife, and his, defendant's witness, Willie Schubert. We do not think this testimony was admissible. Previous altercations with other and different parties could not throw any light on this question. If appellant had laid a predicate to impeach said prosecuting witness Schmidt, asking said Schmidt if he had not had a difficulty with the witness, then said witness could have been introduced to impeach said Schmidt on said question, but isolated instances of temper or quarrels is not a compliance with the rules of evidence to prove reputation.
Bill of exceptions No. 7 shows the defense introduced three witnesses, each of whom testified to the general bad reputation of the alleged injured party, Charles Schmidt, for peace and quiet in the community in which he resides, and defendant then offered to further prove by each and all of said witnesses that they were acquainted with said Schmidt's habits and disposition and his general reputation as to using violent, profane and indecent language and conduct to and towards others, and specially when he was angered at anyone, and it was at the time stated to the court to be offered in connection with the general bad reputation of said Schmidt for peace and quiet, as bearing on the general issue of the conduct of the said Schmidt to the wife of defendant at the time of the alleged assault of said Schmidt on the wife of defendant, and the alleged use by said Schmidt to the wife of defendant of vile and insulting language, just a few moments before the shooting occurred, and as bearing on the probable conduct of said Schmidt at the time of the alleged shooting of said Schmidt by defendant. Under the facts of this case we do not think this testimony is material, since, as stated above, the testimony could only go to corroborate the fact that the prosecuting witness had assaulted appellant's wife, and it being burglary per se to shoot into a house to injure the prosecuting witness, then the testimony becomes immaterial, since it could only serve to corroborate appellant's theory that the assault was an aggravated assault and not an assault with intent to murder; and under the statute above discussed, it being immaterial whether it was an assault to murder or aggravated assault, then it follows that the testimony was immaterial.
Bill of exceptions No. 8 complains practically of the same error of the court in refusing to admit reputation of the prosecuting witness as discussed in the above bill.
Bill of exceptions No. 11 shows that W.J. Love, district attorney, being on the stand as a witness in behalf of the State, in the State's rebutting testimony, was permitted to state and testify
to the jury that his reasons for dismissing the indictments in cause No. 15548 and cause No. 15549, the first alleging an assault by defendant with a gun upon the alleged injured party, Charles Schmidt, and the second, charging such an assault with said same intent upon Mrs. Charles Schmidt, and both of which were based on the shooting which is the basis of this prosecution, was, because in his judgment, the same facts were the basis of said prosecution, that are the basis of this prosecution, and that the State could not carve "two convictions" out of the same facts, and that for that reason he nolle prossed said indictments and elected to try defendant upon the indictment in this cause, to which testimony when offered, and before it was given, defendant objected on the ground that same was the opinion of said witness, and was admitting said opinion of said witness before the jury as evidence, that in his judgment and opinion the defendant was guilty in this case, and that when the jury had convicted defendant in this case, according to said opinion of said witness that the State could not then carve "another conviction" out of the same facts, and that the same was not the statement of any facts, and that the nolle prosequi entered in said causes stated the reasons for their being entered, and that the said opinion of said witness was irrelevant, immaterial and incompetent as evidence to prove any fact or issue in this case. The court overruled the objections and witness was permitted to testify as above detailed. This bill is allowed with the following qualification: "The indictment in causes Nos. 15548 and 15549 referred to, together with the motions of the district attorney, to nol-prosse the same had been admitted in evidence on behalf of the defendant over the objection of the State, and the testimony above objected to was admitted on behalf of the State to explain to the jury why said cases had been nolle prossed by the district attorney." Certainly, in the light of the court's explanation, if error at all, the testimony of the district attorney was harmless. The defense had insisted upon introducing the indictments charging appellant with assault with intent to murder upon prosecuting witness Schmidt and his wife, and the reasons of the district attorney for nolle-prossing same and it could do no harm to amplify the reasons for nolle-prossing the indictments. None of the testimony, however, ought to have gone before the jury. It is a matter addressed to the discretion of the court and with which the jury had nothing on earth to do, but certainly appellant can not complain, after the indictments were introduced and the reasons for nolle-prossing also introduced, that the district attorney explained to the jury.
Bill of exceptions No. 12 shows that the State's witness, Jack Hagerman, being on the stand for the State in its rebutting
testimony, and being on cross-examination, the said witness having testified on the day of the occurrence alleged in the indictment in this cause, he went to the place known as the "Jones' place," which was in sight of what occurred between the State's witness, Charles Schmidt, and defendant's wife, which immediately preceded the shooting, and that he saw defendant's wife at her buggy and apparently unhitching her horse, and saw her grab her buggy whip out of her buggy and go to the fence and put her foot on the first board of the fence as if she was going to get over with the whip in her hand, but that he would not say that she was unhitching the horse, or what occurred prior to that time, and the State's witness, Charles Schmidt, having testified that defendant's wife slapped at him three times across the fence and that he jumped back each time, and that she then ran to her buggy and grabbed the whip and came back to the fence with it, and defendant's wife having testified that said Schmidt slapped her at the fence and then started as if to get over the fence, and that she then went to the buggy and got her whip with the intention of defending herself as best she could against said Schmidt should he cross the fence to continue his assault on her; and the witness further testified that he did not see defendant's witness, Willie Schubert, a small boy about eight years old, who had testified that he was present and had gone to where Mrs. Railey was, to take her some meat that had been left by a butcher at his mother's for Mrs. Railey in the absence of Mrs. Railey, and that he heard said Schmidt call Mrs. Railey "a bitch" and "a whore" and some other ugly names, and saw him slap her, and that he then left and went to his home, his mother living upstairs over said "Jones' place," and defendant then asked witness Hagerman the following question: "If that little boy says he was out there, you wouldn't undertake to dispute that he was not, would you?" and to which question the witness would have answered had he been permitted to do so, that if the little boy said he was there he would not dispute it, and which was at the time stated by defendant to be offered for the purpose of testing the extent to which the witness would assert that the little boy was not present at the time of the alleged assault upon, and insulting conduct towards, defendant's wife by the State's witness, Charles Schmidt. This testimony was utterly inadmissible; it called for an opinion of the witness. The court approves the bill, however, by stating that the State also objected to the form of the question as being improper, and the court only sustained the objections as to the form of the question, and stated to counsel for defendant at the time that he might ask the witness any question or questions which would elicit the fact of whether or not said boy, Willie Schubert, was present at said time and place, or whether the witness saw said boy, and thereafter counsel for defendant did propound
proper questions to said witness which elicited the following testimony from him: "I will not undertake to say that he was not there (referring to said boy, Willie Schubert); I will not do that now; I say that I did not see him there."
Bill of exceptions No. 13 complains the court erred in refusing to sustain a motion of appellant to require the State to elect which count in the indictment would be relied upon for a conviction. The court merely submitted the first count in the indictment. This cured surely any error in the ruling of the court.
Bill of exceptions No. 14 complains that the State argued to the jury as follows: The defendant interposes technical objections and in that way prevents the State from proving certain facts. This bill is allowed with this explanation: "After the objection by defendant to the language used as set out above, the court instructed the jury not to consider said argument, and at the conclusion of the argument, at defendant's request, gave to the jury defendant's special instruction No. 1, again instructing them that they should not consider said language." The explanation cured any possible error in the argument. Bill No. 15 complains in substance to same facts as those stated in bill No. 14.
Bill of exceptions No. 16 complains in substance of the following statement in the closing argument by the State: "Let us now get rid of slop that is always injected in a criminal trial by the defendant." The explanation to this bill says that after the objection of defendant to the language used, as above set out, the court instructed the jury not to consider said argument, and at the conclusion of the argument, and at defendant's request, gave to the jury defendant's special instruction No. 3, again instructing them that they should not consider said language. This bill and bill No. 17 complain practically of the same matter. In the light of the explanation of the court none of this argument was prejudicial to appellant.
Bill of exceptions No. 19 shows that defense counsel in course of his argument, after stating that children are usually truthful, stated that the Savior had said, "Suffer little children come unto me, for of such are the kingdom of Heaven." In reply to this, State's counsel used this language: "The Gentleman who uttered the expression, `suffer little children come unto me, for of such is the kingdom of Heaven,' lived nearly two thousand years ago, and did not know of the juvenile laws and courts of Texas, and of the small boys who have been juveniled under that law." Waiving the sacrilege of the suggestion of the State's counsel, we do not think there was any error in the retort made upon appellant's argument.
Bill of exceptions No. 21 complains of the misconduct of the jury who, after they retired to consider their verdict, received other
evidence in the absence of defendant, of a material character, other than that adduced upon the trial of this cause, in this, to wit: that one, or more, of said jurors whose name or names defendant is unable to now give, drew a diagram of his or their own which was substituted for the two diagrams introduced in evidence of the interior of the room in which the said Schmidt was at the time the shot was fired, one of said substituted diagrams having been drawn by the said Schmidt, and the other by the State's witness, J.A. Voss. We have carefully reviewed the matter complained of in this bill and think that the mere fact that one of the jurors had been on the building when it was constructed and had some personal knowledge of its location, did not and could not have injured appellant for him to state the knowledge that he had of the location of the building, in the light of this record, since appellant says when he reached the window that the injured party attempted to shoot him with a pistol or gun, and a pistol is frequently called a gun, and that he fired for self-preservation. The defendant's case is that he fired on account of the indignities offered appellant's wife. So we see nothing in the plat suggested by the jury that could injure in the remotest appellant's rights. Of course, the question is well settled that additional evidence that injuriously affects or could injuriously affect the rights of a defendant is a proper ground to reverse a case. One or more maps were introduced. The bill presenting this matter is too long and voluminous to copy in this opinion. Suffice it to say that there was no error prejudicial to appellant. Furthermore, the bill presenting the matter does not appear to be signed by the judge.
The charge of the court in all respects properly presents the law of this case, and presents the doctrine of reasonable appearances of danger as well as actual danger from the defendant's standpoint, authorizing the jury to resolve each reasonable doubt in behalf of the appellant. We have carefully reviewed seriatim all of appellant's contentions, and do not believe there is any error in this record authorizing a reversal of the judgment, and same is in all things affirmed.
Affirmed.
[Rehearing denied December 22, 1909. — Reporter.]
ON PETITION FOR WRIT OF ERROR TO U.S. SUPREME COURT. January 13, 1910.