Barnard v. State , 87 Tex. Crim. 365 ( 1920 )

Appellant was indicted in the Criminal District Court of Travis County, upon a charge of murder; and upon his trial was convicted of manslaughter, and his punishment fixed at four years in the penitentiary.

Considering the errors urged in the order as presented by appellant's brief, we first notice the contention that the verdict was reached by lot, and that same is, therefore, illegal. The record discloses that the testimony of the jurors was heard in support of this motion for a new trial, their testimony substantially being that after they had agreed on a verdict of guilty of manslaughter, finding themselves of various minds upon the question of the penalty, they agreed to add up their several preferences, as to amounts, and divide the result by twelve; which was done; and the quotient amounted to four years and a fraction — or, four years and five months, as testified to by most of them. Thereupon, some one either made a motion, or suggested that the verdict be fixed at four years, and there was a unanimous vote in favor of this term. This is not such procedure as amounts to a violation of our statute forbidding a verdict arrived at by lot. See Section 656. Branch's Ann. Penal Code; Dawson v. State, 72 Tex.Crim. Rep., 161 S.W. Rep., 469; Lamb v. State, 75 Tex.Crim. Rep., 169 S.W. Rep., 1159; Art. 837, Sub. Div. 3, Vernon's C.C.P. The evidence was practically in accord, that after agreeing to a verdict of manslaughter, a large majority of the jurors were found to favor five years, and two or three for a lesser penalty; and the trial court was warranted in concluding that the addition and division were not to be binding upon them, and it was not so in fact.

Complaint is made of the admission of the testimony of Mrs. Clark. This witness testified after the defendant had closed his evidence in chief, that deceased was manager of her farm, on which appellant was a tenant, and that on one occasion, when a misunderstanding came up over the division of some pecans — she accusing appellant of not delivering enough pecans as rental — that appellant became very angry, and said that whoever told her that was not her share of the pecans, had lied. In this connection she also stated that appellant insisted that deceased was the one who was causing him this trouble. The only persons present at this conversation, were appellant, deceased, and the witness. She further said that appellant was more than angry; that his eyes flashed, and that he clenched his hands. Appellant was on trial for murder, and evidence tending to show enmity, or former grudges on his part against deceased, was admissible. We think such was evidently the purpose and tendency of said testimony. At the request of appellant, the trial court instructed the jury not to consider any testimony of this witness, to the effect that appellant was not giving her the amount of pecans to which she thought herself entitled. If appellant desired to introduce any evidence upon this matter, he had the right so to do; and it does not appear that the trial court refused to permit him this privilege. The order of testimony is not fixed by iron clad rules under our practice, and is confided largely to the discretion of the trial courts; and their actions regulating same will ordinarily be upheld, unless by some unusual variance from the customary procedure, some injury appears probable; which is not the fact in the instant case.

Objection was also made to a statement in his argument, by the prosecuting attorney, to the effect that one of appellant's attorneys went out to the scene of the homicide with certain witnesses, and pointed out various places, and got said parties to make certain tests. It appears from the qualification affixed to this bill that as soon as said statement was made, one of appellant's attorneys named therein, arose and objected, for the reason that he was never out at such place. At once, the attorney prosecuting promptly retracted said statement, telling the jury that same was based on the fact that the testimony showed that an attorney for the defendant was out at said place, conducting said investigation for the defendant, but that if this one of defendant's attorneys said he was not there, he accepted his word and withdrew the statement. In this condition of the record, we see no injury possible in this matter.

Nor do we think the argument set out in Bill of Exceptions No. 7, to the effect that the children of deceased were entitled to sympathy, such argument as would call for a reversal of the case. However, this bill, considered in the light of the court's qualification, presents no objectionable matter. This is also true of his bill of exceptions No. 8. These bills were accepted by appellant, and are before us without objection to the court's qualifications.

Complaint is also made of the fact that the trial court submitted the issue of murder. We do not think any error was thus committed. We are referred to no authority holding that where one charged with murder is found guilty of manslaughter, the mere fact of the submission of the law of murder operates as any injury to the accused. No incorrect statement of the law of murder or of manslaughter in the charge, is here pointed out, by which we might be led to believe that the charge of the court could have had any evil effect in bringing about a conviction of the lower grade of homicide.

The evidence showed that appellant was armed with a pistol. He testified that deceased threw a rock at him shortly after their meeting, which struck him on the hand, causing pain and bloodshed, that deceased also then cursed him, and said he was going to his house and get his gun, and come out and kill him; that when deceased started to the house he, appellant, pulled his pistol and shot. There were three shots fired. Deceased was shot twice in the back, and expired almost immediately. We are doubtful if self-defense was in the case. See Lynch v. State, 24 Texas Crim. App., 364; Bush v. State, 40 Tex.Crim. Rep.. But if such theory appeared, the court fully charged on same as possibly raised by the testimony of appellant, instructing the jury that said issue was to be determined from the standpoint of appellant alone, and fully applied the law to the facts as made by the testimony, including a charge on the right of one assailed to pursue his assailant.

The only eye witness to the homicide beside appellant and deceased, was the wife of deceased, and she testified that when the last shot was fired, deceased was running away from appellant down the aisle of the cow barn, and that appellant was standing at the door shooting at him as he ran.

We have found no reversible error in this record, and the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING May 12, 1920.