Johnson v. State

Decision Date01 January 1865
Citation27 Tex. 758
PartiesW. R. JOHNSON v. THE STATE.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

An erroneous ruling by the court below in holding that a juror who is challenged for cause is a good juror, whereby the defendant was forced to a peremptory challenge, affords no ground for a reversal of the judgment, unless it appears that the defendant exhausted his peremptory challenges before a jury was obtained; and when the record is silent as to the fact, this court cannot infer that the defendant did exhaust his peremptory challenges before the jury was obtained.

The mere surmise that the defendant, by means of such erroneous ruling, may have been induced to accept jurors whom he would otherwise have rejected, is altogether too hypothetical and imaginary to authorize a reversal of the judgment.

Objections to evidence not taken in the court below are not available in this court, and dying declarations are not an exception to this rule.

Depositions cannot be admitted in criminal cases except upon the conditions and with the restrictions prescribed in the Code of Criminal Procedure; and the consent of the district attorney and the defendant to the taking of a deposition otherwise than in accordance with the provisions of the code will not, it seems, make the deposition admissible, if objected to at the trial on behalf of the state.

Though in every case of felony the court is required by statute to give a written charge, whether asked by the parties or not, yet it is only necessary for the court to give such instructions as are applicable to every legitimate deduction which the jury may draw from the evidence.

When a party who has taken the life of another relies upon threats against his own life as an element in his defense, he must show that, at the time of the killing, some act was done by the deceased from which he, the accused, might reasonably infer an intention of immediately carrying such threats into effect; in which case the accused was justified in the use of such means as were in his power for his own defense, and if death ensued thereby, the homicide was justifiable.

But in no case can mere antecedent threats, not accompanied by some demonstration indicative of their immediate execution, either justify the homicide of the party who made them, or reduce it from murder to manslaughter; and there is nothing in the 596th article of the Penal Code to countenance a different conclusion.

The jury were instructed that they could “take into consideration all the facts and circumstances surrounding the parties at the time of the killing.” Held, that this authorized the jury to consider of antecedent threats made by the deceased against the life of the accused, and which, it was also proved, had been communicated to the accused.

That the jury misunderstood the charge of the court and were thereby misled in finding their verdict, is not recognized by the code as cause for a new trial.

No case has yet occurred in this state wherein the courts have tolerated affidavits of the jurors made to impeach their verdict. If ever admissible, they can only be allowed in an extreme case and under an imperative necessity for the accomplishment of justice.

If a juror, who is impaneled in a case of felony, expressly informs a person that he cannot converse with him about the case, this cannot be considered to be a conversation “in regard to the case within the meaning of the 672d article of the Code of Criminal Procedure.

When a new trial on account of misconduct of the jury is claimed by virtue of the 8th clause of article 672 of the Code of Criminal Procedure, the granting or refusal of it is left to the discretion of the court, to be determined by the application of the facts to the result attained by the verdict.

APPEAL from McLennan. Tried below before the Hon. W. Y. McFarland.

The appellant was indicted at the spring term, 1862, of the district court of McLennan county for the murder of Demetrius Hays. The offense was charged to have been committed on the 21st day of December, 1861.

After various orders and continuances, the case came to trial at the fall term, 1864, when the defendant pleaded not guilty.

In the organization of the petit jury, one of the venire, A. G. Bondurant, on his preliminary examination, stated that he had been in the state of Texas for over one year, but that he was a refugee from the state of Louisiana, and claimed his citizenship there, and not in Texas; that he intended to return to Louisiana, though he had bought land and resided here. The court held him to be a good juror, and the defendant challenged him peremptorily and excepted to the ruling of the court. It does not appear either in the bill of exceptions or other part of the record, whether or not the defendant exhausted his peremptory challenges before the jury was procured.

It was proved by several witnesses that the deceased was shot in one of the streets of Waco on the morning of the day laid in the indictment; and that immediately thereafter he stated, in reply to inquiries, that Bill Johnson had shot him and had killed him for nothing. Some of the witnesses testified to details of the shooting as stated by the deceased, and that the deceased knew he was dying. He died in about two hours after being shot. This testimony went to the jury without objection, so far as appears by the record, but its admission is one of the errors assigned by the appellant.

The defendant proved by two witnesses, whose testimony is substantially the same, that they and the accused stayed at the house of Mrs. Parsons in Waco, the night previous to the morning on which Hays was killed; that on that morning the defendant left Mrs. Parsons' for the purpose of going up town to attend to some business; that defendant carried his gun and took with him his negro boy, also armed with a gun, as had been the habit of defendant ever since the killing of his brother, Houston Johnson; that defendant took the street he usually took when he went up town, he and his boy being on horseback; that some five or ten minutes before defendant left Mrs. Parsons', the deceased and his nephew, James D. Hays, had started down the back way to the river. The witnesses were standing in the porch, and their attention was called by a negro girl remarking, “there goes Hays after Dr. Johnson.” They then saw Hays riding up in a walk from the river to the street, in the direction of the street that Johnson was in; that after Johnson had passed the street that Hays was in and had passed the corner of the picketing and the house in the yard, Hays put his horse into a pace or trot, and rode up and turned the corner of the picketing into the street after Johnson. That after Hayes had come into the street behind Johnson, the latter turned and shot, and Hays fell from his horse. One of the witnesses heard but the one shot; the other stated that Johnson fired a second time after Hays had fallen from his horse.

By Thomas Newby, a witness for the defense, it was proved that Hays had made threats against Johnson; witness did not tell Johnson of the threats, but told Miller that Hays was carrying his gun for Johnson, and Johnson told witness to tell Hays to quit carrying his gun for him, or he would be compelled to hurt him. That Hays said he had waylaid Johnson and Beauchamp, and if they had come along that night he would have got them. Hays told witness this, just after Johnson and Beauchamp had had a difficulty with Hays. That Hays made the worst of the threats on the evening or night after the difficulty, which was while the leaves were green and before corn was gathered, in the fall before Hays was killed. That Hays was in the habit of carrying his gun and six-shooter. On cross-examination the witness stated that he had never heard Hays threaten to attack and kill Johnson but once, and that was when he came home on the night that he said Johnson and Beauchamp had attacked him on his way from town. That his head was bleeding and cut with a stick, and he said Johnson had broken his walking stick over his head, and that Beauchamp had shot at him; that after he had come back from lying in wait that night, he said if they had come along he would have got them; that Hays showed witness the place he lay in wait for them; it was in the corner of his own field which witness was cultivating. That Hays' way of making threats was that if Johnson did so and so, he, Hays, would do so and so; and in this way witness had often heard Hays threaten Johnson up to the time of his death.

C. B. Tuning, a witness for the defense, testified that he had heard Hays threaten Johnson; that Hays came to witness' house and asked him if had some large buckshot, saying that his shot were too small and he wanted some larger ones; that he intended “to set them up, or fix them up,” meaning Johnson and Beauchamp; that this was a day or so after Johnson and Beauchamp had a difficulty with Hays. That witness told Johnson what Hays said about him, and about his wanting buckshot; and also told him that he thought he was not safe, and he had better take some one with him when he went about.

Isam Farris, for the defense, testified that he heard Hays say that he and Johnson could not live in the same range and travel the same road.

There is other evidence in the record introduced by the defense, and relating to the previous killing of Houston Johnson, a brother of the defendant, by one Ensaw; in which, it seems, Hays had been accused of participation.

With reference to the evidence of antecedent threats by Hays introduced by the defense, the court charged the jury as follows: “The defendant, Johnson, seeks to justify or excuse the killing of Hays on the ground of threats made by Hays to take the life of him, Johnson. Now, threats by Hays to kill Johnson do not afford a justification for Johnson's killing Hays, unless it be shown by the evidence that at the time of the killing, Hays, by some act then done, manifested an intention to kill...

To continue reading

Request your trial
44 cases
  • Treadway v. State
    • United States
    • Texas Court of Criminal Appeals
    • 7 February 1912
    ...App. 89, Elam's Case, 16 Tex. App. 34, and Leeper's Case [27 Tex. App. 694, 11 S. W. 644], decided at the present term. See, also, Johnson's Case, 27 Tex. 758. Loose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely......
  • Colbert v. Journal Pub. Co.
    • United States
    • New Mexico Supreme Court
    • 15 June 1914
    ...15 Or. 313, 16 Pac. 33; Wooten v. State, 99 Tenn. 189, 41 S. W. 813; Endowment Rank K. P. v. Steele, 108 Tenn. 624, 69 S. W. 336; Johnson v. State, 27 Tex. 758; Heucke v. Milwaukee City R. Co., 69 Wis. 401, 34 N. W. 243; Pool v. Milwaukee Mechanics' Ins. Co., 94 Wis. 447, 69 N. W. 65. The r......
  • Goode v. State
    • United States
    • Texas Court of Criminal Appeals
    • 20 January 1932
    ...505; Testard v. State, 26 Tex. App. 273, 9 S. W. 888, 890; Bailey v. State, 26 Tex. App. 706, 9 S. W. 270. In the early case of Johnson v. State, 27 Tex. 758, there appears a case so like the one at bar that we quote: "Article 672, of the Code of Criminal Procedure, expressly forbids the gr......
  • Strong v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 April 1913
    ...89; Elam's Case, 16 Tex. App. 34; and Leeper's Case [27 Tex. App. 694, 11 S. W. 644], (decided at the present term). See, also, Johnson's Case, 27 Tex. 758. "Loose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT