Hart v. State

• Decision Date: 27 May 1925
• Docket Number: (No. 8728.)
• Citation: 276 S.W. 233
• Parties: HART v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 233

HART v. STATE.

(No. 8728.)

Court of Criminal Appeals of Texas.

May 27, 1925.

Rehearing Granted October 14, 1925.

Commissioners' Decision.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Earl Hart was convicted of manslaughter, and he appeals. Reversed and remanded.

Chastain & Judkins, of Eastland, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

Appellant was indicted and tried in the district court of Eastland county and convicted of manslaughter and his punishment assessed at confinement in the penitentiary for a term of 5 years. This is the second appeal to this court. The first appeal will be found in 95 Tex. Cr. R. 566, 255 S. W. 414.

The appellant, through his counsel, complains of the action of the court in refusing to quash the jury panel in this case. It appears from said motion to quash that the contention is made that the officers upon whom the law imposes the duty of filling the jury wheel between the 1st and 15th of August of each year, by their acts rendered the jury drawn from said wheel unlawful because there were additional names of approximately 300 or 400 voters placed in said wheel on the 12th day of January, 1924. The court, in qualifying appellant's bill in this respect, states that when the jury wheel was filled in August, 1923, under a misapprehension of what the law required, the names of certain individuals exempt under the law from jury service were not placed in the wheel, and when this court handed down its decision in the case of State of Texas v. Atwood, 96 Tex. Cr. R. 249, 257 S. W. 563, holding that the jury wheel had been improperly filled, in that such names had not gone into the jury wheel, that the judges of the Eighty-Eighth and Ninety-First district courts entered orders upon the minutes of the respective courts directing the officers authorized under the law to meet and place the names of all such jurors exempt under the law in the jury wheel, which was done on the 12th day of January, 1924, It is contended by appellant that by reason of adding said additional names in said jury wheel that said officers and said courts connected therewith violated the acts of the Legislature relative to filling said wheel, and that same could only be done in August as above stated. This court in the Knott Case, 274 S. W. 978, and in the case of McNeal v. State, 274 S. W. 981, recently handed down, held that the jury wheel could be filled at other and different times than between the 1st and 15th of August, and that there was no error in permitting same to be filled upon other dates when it is ascertained that it is improperly filled in August. We fail to see any distinction between the cases, supra, in principle and the instant case. It certainly cannot be denied that if the wheel had been improperly filled in August and thereafter it could be properly filled upon other dates as in the McNeal Case, then in the instant case the additional names left out could be added without affecting the validity of the wheel. In view of the McNeal Case and the Knott Case, we are of the opinion that there is no error in the action of the jury commission in the instant case.

The appellant also complains of the court's refusal to give his special charge to the jury as set out in bills of exception Nos. 2 and 3, to the effect that if the jury believed from the testimony in the case that at and just prior to the time of the homicide the deceased was lying in wait for the defendant * * * with the intention of killing the defendant or inflicting serious bodily injury upon the defendant, and manifested any intentions of carrying out such hostile purpose, if any, by any act or gesture calculated to lead the defendant to believe that his life was in danger, * * * then the defendant would have the right to shoot deceased and continue to shoot so long a time as necessary to insure his own safety, etc. We do not believe there is any error in the refusal of the court to give this charge for the reason that said charge is not the law, because same is limited to the manifestations and intentions of the deceased, and to the acts and gestures of the deceased calculated to lead the defendant to believe that his life was in danger. In such cases, the law does not base the action of the defendant on the manifestations and intentions of the deceased at all, but it is based on the impression of the acts of the deceased on the mind of the defendant, and it is not based on what is calculated to lead the defendant to believe, but what the defendant actually does believe from his standpoint. This charge not being a proper charge, there is no error in the court's refusing the same; besides, the court gave a broad and liberal charge to the jury on the defendant's right to act on the appearances of the danger at the time of the killing.

The court submitted this case to the jury on manslaughter, and the jury returned their verdict in response thereto assessing the penalty at 5 years in the penitentiary, and the court in the judgment and in the sentence erroneously stated that the jury found defendant guilty of murder, though the recognizance properly states the verdict was for manslaughter, and the sentence should have been not less than 2 nor more than 5 years. The judgment and sentence is hereby corrected to read that defendant was convicted of and adjudged guilty of manslaughter instead of murder, and that he be confined in the penitentiary not less than 2 nor more than 5 years.

After a careful examination of the entire record, we are of the opinion that there is no reversible error shown, and the judgment of the trial court should be reformed and affirmed, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant was indicted for murder, and on the former trial was convicted of manslaughter, with punishment assessed at confinement in the penitentiary for a period of two years. The appeal resulted in a reversal. See 95 Tex. Cr. R. 566, 255 S. W. 414.

On the present trial the court instructed the jury thus:

"The defendant stands charged by indictment with the offense of manslaughter, alleged to have been committed in the county of Eastland and state of Texas, on or about the 23d day of May, 1922. To this charge the defendant has pleaded `not guilty.'"

The verdict read:

"We, the jury, find the defendant guilty as charged, and assess his punishment at 5 years in the state penitentiary."

The judgment and sentence declare the appellant guilty of the offense of "murder," and assess his punishment at confinement in the penitentiary for a term of "not less than 5 nor more than 5 years." The judgment and sentence thus entered are out of harmony with the verdict of the jury and with the law. It was manifest from the charge of the court that the appellant was on trial for the offense of manslaughter. The court instructed the jury that such was the "charge" against the appellant. Responding to this instruction, the jury found the appellant guilty as charged, and assessed his penalty at confinement in the penitentiary for a...