Tardy v. State

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Bill of exceptions number 1 complains that during the selection of the jury Lee Bear and Jim Taylor were duly and legally summoned talesmen, after the exhaustion of the special venire, and were each asked the following question by appellant's counsel: "Whether he had formed an opinion as to the guilt or innocence of the defendant from what purported to be the facts in the case, and from what he had heard of the case; and each juror answered in the affirmative that he had formed an opinion. And each juror was further asked if it would require other and different evidence to change his opinion. Each answered it would." Whereupon defendant's counsel challenged each of said jurors for cause; and the court overruled the challenge and compelled defendant to peremptorily challenge said two jurors. And defendant took two other jurors, to wit, Jim Richburg and Dick Winfrey, whom he would have challenged peremptorily but for his challenges having been exhausted by the action of the court in declaring the two jurors Bear and Taylor qualified jurors. The court approved this bill with the following explanation: "The court had already asked the two jurors the statutory question and in answer to which they said they had formed no such opinions as would in any way affect their verdict; and such opinion as they had formed was only such as every man would form, based merely upon rumor. And the court further asked each of said jurors, if there was established in their minds such an opinion from hearsay or otherwise as would influence their verdict; and each answered they had not. Each of said jurors answered that nothing that they had heard would influence them in their verdict. And the court being of opinion that each of said jurors was impartial and had no such opinion as would influence their verdict, ruled they were qualified to serve as jurors." The explanation of the court shows there was no error in the ruling.

Bill of exceptions number 4 complains of the following language used by the district attorney in closing his argument to the jury: "Gentlemen of the jury, you acquit this defendant on these facts, and it will cause more murders to follow." To which statement of counsel defendant objected by his attorney, and asked that said language be withdrawn from the jury, and that the jury be instructed not to consider the same. Which objection was overruled, and defendant excepted. No special charge was requested by appellant requiring the jury to disregard this argument. We can not say it is of such a character as would necessarily prejudice appellant to that extent as would authorize a reversal.

Appellant asked the court to give the following charge: "You are further instructed in this cause, that defendant is a competent witness in his own behalf; and you are the sole judges of his testimony, and you should judge and weigh it as you would the testimony of any other witness." This charge was refused. In this there was no error. It is never proper for the court to single out the testimony of any witness and give a charge similar to the one asked. Defendant's testimony, under the law, stands as any other witness; but it is not proper for the court to charge thereon.

In motion for new trial appellant complains of the following portion of the court's charge: "The testimony relating to former indictments against the defendant was admitted for the sole purpose as it relates to the credibility of the defendant as a witness." The objection to said charge being that the same failed to instruct the jury that such evidence was introduced and admitted for the sole purpose of affecting defendant's credibility as a witness, and should be considered by them for that purpose alone. The record shows that defendant had been previously tried in Arkansas for murder and acquitted; and had also been previously charged with various thefts, and acquitted. The court in the above charge tells the jury that the testimony can be considered for the sole purpose of affecting his credibility. We take it that this can not be construed otherwise than as a statement that it can be considered for no other purpose. However, it is better and proper to so state as appellant insists. If the jury can consider it but for one purpose, it necessarily limits it to that purpose. We do not think there is such error in the charge complained of authorizing a reversal.

Appellant also objects to the following portion of the court's charge: "Upon the subject of self-defense, you are further charged that, if you believe from the evidence beyond a reasonable doubt that defendant armed himself with the intent and purpose to provoke a difficulty with the deceased, as a pretext for killing him; and if you further believe from the evidence beyond a reasonable * * * that defendant with malice express as before defined, did shoot and kill D.L. Thompson, though his own life or serious bodily injury was threatened in such difficulty, then defendant would not be entitled to the plea of self-defense, but such killing would be murder in the first degree." This charge is erroneous, and under all the authorities it is laid down that bare intent and purpose to provoke a difficulty does not deprive defendant of the perfect right of self-defense. He must do some act or something at the time of the difficulty that does provoke the same. For a discussion of this question, see Matthews v. State, 58 S.W. Rep., 86.

Appellant also complains of the following charge: "But if the purpose of defendant in arming himself, if such be the fact, was to protect himself against another, with no purpose to attack the deceased or to provoke a difficulty with him for the purpose of killing him, then defendant would be justified, if the deceased did attack him in such a manner as to produce in his mind a reasonable apprehension of his life or serious bodily injury as before defined and instructed." Appellant's objection to this charge is, because the same limits appellant's right of self-defense to an attack by deceased, and not to apparent danger; and because the court intimates to the jury in said charge his own doubt as to defendant's testimony as to his (defendant's) purpose in arming himself. The evidence on the part of appellant shows an actual attack was made by deceased upon appellant, and hence this portion of the charge is pertinent to the evidence introduced. As stated above, the purpose of defendant in arming himself is not an incriminative fact per se, where the issue of provoking the difficulty is in question. But he must do some act at the time to provoke the difficulty before the bare fact of preparation would in any sense forfeit his right of self-defense. However, the court tells the jury here that if he did arm himself without any such purpose, and deceased attacked him, he would have the perfect right of self-defense. We can not see how appellant can justly complain of this charge.

The only other error assigned which we deem necessary to pass upon is the failure of the court to change the venue. The bill presenting this matter is quite voluminous. A careful reading thereof does not convince us that the court committed any error in refusing to change the venue. It shows local prejudice, as we understand, in the town of Lockhart, where the killing occurred; but outside of that, it does not appear that such a degree of prejudice existed as precluded a fair and impartial trial of defendant in that county; and does not present such a state of facts as would authorize us to interfere with the discretion of the trial court in these matters.

For the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.