Habel v. State

• Decision Date: 15 March 1890
• Court: Texas Court of Appeals
• Parties: HABEL <I>v.</I> STATE.

13 S.W. 1001

HABEL

v. STATE.

Court of Appeals of Texas.

March 15, 1890.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

Under an indictment charging him with the murder of Ed. Gillette, the appellant was convicted of manslaughter, and sentenced to two years in the penitentiary. The evidence showed that the two men were quarreling in a theater, and went outside to fight it out, when appellant drew a pistol, and shot the deceased. Other facts sufficiently appear from the opinion.

D. G. Wooten, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant was convicted in the lower court of manslaughter, and given two years in the penitentiary. Appellant was indicted, and put upon his trial for murder. The record sufficiently shows that the court ordered the summoning of the special venire out of which the jury was to be selected for the trial of the case; and the objection to the transcript in that particular, based upon the rulings in Steagald's Case, 22 Tex. App. 486, 3 S. W. Rep. 771, is not maintainable.

As to other objections to the special venires for talesmen, it is first urgently insisted that the same should have been quashed because the court declined and refused to administer to the sheriff and each of his deputies the oath prescribed by article 3056 of the Revised Statutes before they executed said writs. That statute reads: "Whenever it may be necessary to summon jurors who have not been selected by jury commissioners under the provisions of this title, the court shall administer to the sheriff and each of his deputies the following oath: `You do solemnly swear that you will, to the best of your skill and ability, and without bias or favor towards any party, summon such jurors as may be ordered by the court; that you will select none but impartial, sensible, and sober men, having the qualifications of jurors under the law; that you will not, directly or indirectly, converse or communicate with any juryman touching any case pending for trial; and that you will not by any means attempt to influence, advise, or control any juryman in his opinion in any case which may be tried by him, so help you God.'" This statute has been held applicable in criminal as well as in civil cases. Wyers v. State, 22 Tex. App. 258, 2 S. W. Rep. 722. When this statute was originally passed, it expressly provided in terms that the oath should be administered "at the commencement of each term of the court at which jury cases may be tried." Hicks v. State, 5 Tex App. 488. In the Revision, as shown in article 3056, supra, it is not stated in terms at what particular time the oath should be administered; but we think it is apparent from the language used that, if it has once been administered, that will suffice thereafter at the same term for the summoning of all "such jurors as may be ordered by the court," and that it is not necessary to have the oath repeated every time new or additional talesmen are to be summoned. In explaining the bills of exception on this point, the learned trial judge states that the said oath was duly administered to the sheriff and deputies on the first day that the criminal docket was taken up, and that none but the officers so qualified took part in summoning the talesman in this case. He also certifies that in each instance, before the said talesmen were summoned, he cautioned the sheriff as to his duty in summoning them, as provided shall be done by article 615 of the Code of Criminal Procedure. This was the necessary and proper practice. Defendant's objections to the action of the court in this matter are without merit.

Perhaps we should have first noticed the defendant's objections to the issuance of venires for talesmen until certain of the original venire men who had been summoned, and who were absent, had been attached, and brought into court to be passed upon. He also asked a postponement of the trial until this could be done. Attachments were promptly issued for these absentees as soon as demanded, but a defendant cannot unreasonably delay the trial on account of the absence of such summoned jurors. Code Crim. Proc. art. 640. The questions here raised were fully discussed in Hudson's Case, 28 Tex. App. 323, ante, 388. No error is made to appear in relation to this matter.

Many objections are made, and criticisms indulged in, with regard to the charge of the court. In so far as murder of the first or the second degree is concerned, all such questions are eliminated by the fact that defendant has been convicted of manslaughter, and not murder. As to manslaughter, the charge embraced all the statutory rules with regard to that crime. Had defendant not been found guilty of manslaughter, the charge might have been held insufficient as not pertinently applying the law of that grade of crime to the particular facts of the case; and defendant, in a special requested instruction which was refused, attempted to call the attention of the court to the omission. The instruction was not itself the law, but was sufficient to call the attention of the court to the necessity of an instruction directly applicable to the facts. An instruction was given by the court with regard to mutual combat entered into where death, or seriously bodily injury likely to result in death, might ensue, and properly instructed the jury that, in such state of case, self-defense would not apply. King v. State, 4 Tex. App. 54; Crist v. State, 21 Tex. App. 361; Thumm v. State, 24 Tex. App. 667, 7 S. W. Rep. 236; Williams v. State, 25 Tex. App. 216, 7 S. W. Rep. 666; Willson, Crim. St. § 982. But the court did not instruct as to what the law would be if defendant went out to engage in a fisticuff with deceased, and with no intention of having a deadly contest, or using a deadly weapon, and that his deadly weapon was only used after deceased was apparently about using a deadly weapon upon him. The facts, perhaps, called for some such instruction. But in such case the defendant's right of self-defense would not have been, as is insisted by counsel, a perfect one, and entirely justifiable in law, but would have been imperfect to the extent of the gravity of the offense which he intended to commit originally. He went out to engage in an affray, which is a misdemeanor. Pen. Code, art. 313. "A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong,—if he was himself violating, or in the act of violating, the law, — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law...