
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas,
    June 14, 1911.
    Rehearing Denied Oct. 18, 1911.)
    1. Courts (§ 97) — Run® or Decision — Decisions of Federal Courts — Effect on State Courts.
    The Court of Criminal Appeals is bound by the decisions of the United States Supreme Court in determining whether a negro was denied any right on account of race, color, etc., by the manner of selecting the grand jury which indicted him1.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-334; Dec. Dig. § 97.]
    2. Criminal Law (§ 1090) — Appeal—Bill of Exceptions — Necessitf—Change of Venue.
    Error in overruling accused’s motion for a change of venue cannot be considered on appeal where it is not presented by a proper bill of exceptions.
    [Ed. Note. — For other cases,' see Criminal Law, Cent. Dig. § 2811; Dee. Dig. § 1090.]
    3. Homicide (§ 308) — Instructions.
    It is not essential that the charge submitting the question of murder in the first degree should state in any way accused’s defenses, such as self-defense, though it might be best in some cases; it not being possible to charge all of the law in a single paragraph, but the charge must be taken as a whole.
    [Ed. Note — For other cases, see Homicide, Dec. Dig. § 308.]
    4. Homicide (§ 309) — Manslaughter — Issues.
    The first trouble between accused and decedent arose over the efforts of accused’s father to get possession of a house occupied by decedent for accused to live in. A short time thereafter, and a few days before the killing, decedent’s dog was shot, and he claimed that accused shot it and went to the house of accused’s father to find him, making threats of violence, and, when his father offered to pay for the dog, decedent stated, according to accused’s evidence, that he would be satisfied with nothing but accused leaving the county, and that, if he did not leave, “he is my negro, and I am going to have him,” all of which was communicated to accused. According to accused’s evidence, on the day of the killing, he and another were practicing shooting at a target in his father’s yard, and, after the cartridges of the target rifle were exhausted, he went into the house to get a Winchester rifle to continue the target practice, and, as he came out, saw decedent with a shotgun, and decedent started toward accused, when accused asked him. where he was going, but decedent did not reply, but immediately placed his gun to his shoulder and shot accused, immediately after which accused fired. The state’s evidence tended to show that accused shot first. Held, that the evidence required submission of the issue of manslaughter to the jury.
    [Ed. Note. — Dor other cases, see Homicide, Cent. Dig. §§ 649--656; Dec. Dig. § 309.]
    
      5. Homicide (§ 300) —
    Self-Defense—Issue.
    The evidence raised the issue of self-defense requiring its submission.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    6. Homicide (§ 300) — Evidence—Threats— Instructions.
    The evidence raised the question of threats by decedent against accused, requiring the court to charge thereon.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 300.]
    7. Homicide (§ 194) — Evidence—Self-Defense — Threats.
    In a prosecution for homicide, in which self-defense was an issue, and there was evidence that decedent intended to compel accused to leave the county because the latter killed his dog, evidence was admissible that accused was much alarmed and feared decedent, and contemplated leaving the county to avoid being injured by decedent.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 417-419; Dec. Dig. § 194.]
    8. Homicide (§ 157) — Evidence—III Feeling.
    In a prosecution for homicide, in which it appeared that the trouble originated over the efforts of accused’s father to have decedent put out of a house rented by him, evidence was not admissible that decedent did not pay part of the rent to accused’s father resulting in some ill feeling between them.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 288-292; Dee. Dig. § 157.]
    9. Homicide (§ 214) — Dying Declarations— Subject-Matter.
    Decedent’s wife testified in a homicide case that, when she got to decedent after the shooting, she kissed him, and asked him if he knew her, and he replied, “Get the doctor as quick as you can,” and told her to take him easy in removing him, and that witness supposed that her husband realized that he was not going to live, because a few seconds thereafter he told her to kiss him good-bye, and died before he was moved. Heidi, that the evidence was not admissible as a dying declaration, having no relation .to the cause or facts of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 448-450; Dec. Dig. § 2Í4.]
    10. Homicide (§ 338) — Harmless Error-Admission of Evidence.
    The admission of the evidence was calculated to prejudice accused’s rights and inflame the minds of the jury against him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    11. Homicide (§ 195) — Evidence—Self-Defense — Circumstances of Killing.
    In a homicide case in which the issue was self-defense, and the state claimed that accused fired the .first _shot with his rifle, the clothing which decedent wore when he was shot, the bloody parts of which were cut away, leaving only that part through which the shots passed, were admitted in evidence to discredit accused’s testimony as .to the position of decedent’s gun when he was shot, and to show that accused shot first. Accused claimed that decedent shot first, shooting from his right shoulder. Held, that the evidence was admissible for the purpose offered.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 420; Dec. Dig. § 195.]
    12. Criminal Law (§ 364) — Evidence—Bes Gestas.
    Evidence by accused’s father as to what accused told him about the killing when he saw him some time thereafter was not admissible, not being res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 816-S18; Dec. Dig. § 364.]
    13. Criminal Law (§ 713) — Trial—Argument.
    While the state’s attorney must stay within the record in his argument, and not use inflammatory language, he may insist upon the death penalty being imposed -where the evidence justifies it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. § 713.]
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Charley Jackson was convicted of first degree murder, and he appeals.
    ^Reversed and remanded.
    Callicutt & Call, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   PBENDEBGAST, J.

The appellant was indicted and convicted of murder in the first degree, and given a life sentence in the pen-tentiary.

The record contains about 300 pages of typewritten matter. Many questions are raised, and some of them presented by a brief for the appellant. It will be .unnecessary for us to notice all of these various questions. Some of them doubtless will not occur upon another trial. We will therefore discuss and decide only such as we regard as material.

1. The first question raised is on motion to quash the indictment, claiming that, as the appellant was a negro, he was discriminated against in the selection of the grand jury which indicted him. He also raised the same questions as to the special venire out of which the jury was selected. This question seems not to have been fully developed. The state contested the matter, and it seems that there was only one of the jury commissioners who testified and one other witness. From the bills raising these questions and the contest of the matter by the state, it seems that it was raised after the state had announced ready for trial on a call of the case for that purpose. We will not undertake to pass upon that question now. If it is raised again, it will doubtless be fully developed, so that the court below and this court can more intelligently pass upon the question. There are many decisions on the question by the United States Supreme Court and by this court.

This court is bound by the construction of the United States Supreme Court, and would follow, of course, those decisions. We deem it unnecessary to cite them, but direct the earnest attention of the lower court to the questions if they are raised again. If there is any sufficient doubt on the subject, the state can reindict if necessary or proper, and so select the jury commissioners, the grand jury, and the special venire to try this as well as all other like cases so as to avoid an error.

2. Another question raised is the overruling of appellant’s motion for a change of venue. This is not presented by a proper bill of exception, and therefore cannot be considered.

3. The appellant complains of the charge of the court in submitting the question of murder in the first degree, and also murder in the second degree, as to the first, claiming that in the submission of both degrees of murder it was the duty of the trial court to present in a negative way the claim of self-defense by the appellant; and, as to the charge on murder in the second degree, he makes the same complaints, and, further, that the proper definition of murder in the second degree was not given, in that no definition of manslaughter nor of adequate cause was given so as to properly define murder in the second degree, and leaving the jury in the dark as to what constitutes murder in the second degree.

The charge of the court must be taken as a whole. All of the law of the ease cannot be given in any one paragraph or sentence, of course. The court’s charge submits correctly the question of murder in the first degree to the jury. It- is not essential in that charge that the court should give in a negative or other way the appellant’s defenses, and it is not reversible error to thus charge. However, it might be better in some instances to do so. As to the charge on murder in the second degree, we think the appellant’s contentions are correct, in that the jury was somewhat left in the dark as to what constitutes murder in the second degree with reference to any lesser degree of homicide. This perhaps might not be the case if manslaughter had not been raised by the evidence, and, as we think, should have been submitted to the jury.

4. Complaint was also made that the evidence in this case clearly raised manslaughter, and that the court erred in not submitting that issue to the jury. In our opinion the evidence in this case clearly raises the issue of manslaughter, and the court erred in not submitting it to the jury. All of these questions were properly raised by the appellant, both by bills of exception and in his motion for a new trial.

5. Another complaint by the appellant is made of the charge of the court on self-defense, claiming that it was too general, and did not apply the facts of the case to the law of self-defense. The evidence in the case clearly raised the issue of self-defense, in addition to the question of threats by the deceased against the appellant. The appellant asked special charges on the question of self-defense, which were refused, applying the law of the case on this subject to the testimony introduced on the trial. We deem it unnecessary to either quote the charge of the court on the subject or the requested charges refused, but are of the opinion that the substance of the special charges refused should have been given to the jury. It is unnecessary to detail the evidence in this case. We will only state, in a general way, the substance of the testimony.

Isaiah Jackson, the father of appellant, rented a certain place in Navarro county from 0. h. Witherspoon for the year 1909, and again for the year 1910. On the place rented were at least two sets of houses a few hundred yards apart. One of these houses was occupied by Isaiah Jackson and the appellant during the year 1909. The deceased, Walter Murphy, a white man, rented the other house from Isaiah Jackson for the year 1909. During that year the appellant married, and his father wanted possession of this house from Murphy for the year 1910 so as to put the appellant and his wife therein, he needing the room in the house he occupied for the purpose of placing a hired hand therein. In seeking to get possession of the house from Murphy some trouble was experienced; so that Isaiah Jackson went to his landlord, Witherspoon, stating the facts to him and the necessity of his. having the house by the 1st of January, 1910, explaining the necessity therefor, and that some trouble was being had to induce Murphy to give possession thereof. Witherspoon thereupon, wrote to Murphy demanding the possession of the house for Jackson, and, in effect, stated therein that Jackson had informed him that he (Murphy) declined to deliver possession. This letter or notice was given with a view of instituting proceedings to eject Murphy, and recover possession of the property. When Murphy received this notice or letter, 'he became incensed at Jackson, claiming that he had falsely told Witherspoon that he was in effect? refusing to give possession of the house, and just a few days before the killing Murphy caused Isaiah Jackson to come to •his house where he cursed and abused him thereabout, and Jackson testified that Murphy, in effect, stated that he would not give possession of the property unless or until it suited him. Still later, and just a few days before the killing, one of Murphy’s dogs was wounded by a shot. Murphy claimed that the appellant had shot his dog, and just-two days before the killing he went to Jackson’s house with his brother-in-law, a young lad about 17 years of age, and his wife; Murphy and his brother-in-law being then armed each with a gun. Murphy thereupon demanded to see the appellant. The appellant was then in his father’s house, and the father and mother both Claimed that he was not there, Murphy asserting that he was, and demanded that he should be produced. He started into the house angry and making more or less demonstrations of intended violence to the appellant. Thereupon he was restrained by his wife, who induced him to then leave the Jackson place and return to his own home, which was only a few hundred yards distant from Jackson’s. On this occasion Isaiah Jackson, appellant’s father, apparently conceded that the appellant had shot Murphy’s dog and deplored the fact, and offered to pay him $25 damages thereabouts, which was refused by Murphy, and he thereupon suggested and rather insisted that Murphy file a complaint against the appellant, prosecute, and convict him for shooting the dog, and make him pay a fine therefor. This was declined by Murphy, and, upon being asked what would satisfy him, the testimony shows that he stated that nothing but the fact of his removal from that county would satisfy him. Upon being asked by Jackson how long he would have to remain away, he replied just as long as he, Murphy, lived in the county; that he would not permit him to live in that county; and on this occasion he stated that, if he did not leave, “he is my negro, and I am going to have him.” All of this was heard by or communicated at once to the appellant. The testimony shows that it had the effect of alarming him and his father and mother for his safety; that, in order to avoid Murphy, the father had him to go into Cor-sicana, a few miles distant, where he stayed a day and night with a relative, and they were discussing the necessity of his having to remove and of his father being without his services for the year 1910. His father thereupon took the matter to Witherspoon, his landlord, and discussed it with him. Wither-spoon, a white man, advised the appellant and his father that he thought they were needlessly alarmed, and advised him to return to his father’s house, but to keep out of the view of the deceased for a few days until the deceased became quieted. Thereupon the appellant did return to his father’s house, remained the following night and day, somewhat quietly secreted so as to keep out of the view of the deceased. In going to and from his work it was necessary for Murphy to pass somewhat near by the house of Jackson. There were two ways of going, the nearer across the field, which was sometimes done by Murphy, and the other close in front of Jackson’s house, which was the longer way, but also sometimes pursued by Murphy because of avoiding the muddy and sloppy way. The way in front of Jackson’s house was not exactly a public road, but was a road used for passing to and fro.

The killing occurred soon after dinner about 1:30 p. m. Shortly prior to the killing, one Kelley, a negro preacher, came to the house of appellant’s father, and, upon being bantered by. appellant, he engaged with him at shooting at a target with a little target rifle. Some 15 shots were fired alternately by Kelley and appellant at the target. Just about the time they got through with this target shooting, Murphy was passing Jackson’s house armed with a double-barrel shotgun. The appellant claims he did not know that Murphy was passing until immediately before the shooting. After exhausting the cartridges of the target rifle, he claims to have gone into his father’s house and got his Winchester rifle, with the intention of himself and Kelley shooting that at the target, and, just as he stepped out of the back part of his father’s house with the Winchester rifle, he saw Murphy with his double-barrel shotgun. The theory of the state was that the appellant saw Murphy as he was coming, and went into the house and procured the Winchester rifle for the purpose of killingi him. The theory of the appellant was, as stated above, that he got the Winchester rifle, had not seen Murphy before, and, as he stepped out for the purpose of using it with Kelley in firing at the target, discovered Murphy. The testimony then is conflicting.

Kelley, appellant, and appellant’s mother testified that Murphy started directly towards appellant, when thei appellant hailed him, and asked him where he was going. He made no reply, but, instead, shifted his double-barrel shotgun from his left hand to his right, immediately placed it to his shoulder, and fired at and hit the appellant with small shot. Tha’t immediately the appellant fired, and then alternately Murphy and he again fired. The testimony shows clearly that Murphy fired both barrels of his shotgun at the appellant, and struck him with shot both times. The testimony of the state tended to show that the appellant shot first, and then they alternated shooting at one another. The testimony of the appellant tends to show that the appellant was very much alarmed, and was afraid of the deceased continuously from the time he was charged by deceased with shooting his dog, and that he was endeavoring during all this time to keep secreted and out of the view of the deceased to avoid being killed, or having some serious injury inflicted upon him. We have thus given a brief summary of the evidence so as to show the different contentions of the state and the appellant.

6. Several bills of exception were reserved by the appellant to the court’s action in refusing to permit the testimony of Isaiah Jackson and others to show that the appellant was very much alarmed and feared the deceased, and was contemplating removing from his father’s and out of the county so as to avoid being killed or injured by the deceased. Without reciting this testimony that was rejected, and the various bills that raised it, it is our opinion that this character of testimony was admissible, and that me court erred in excluding it. Even the testimony that was admitted in our opinion clearly raised the question of manslaughter, and required the court to charge thereon. This was insisted upon by appellant in the court below, properly saved by bills of exception, and set out as grounds of his motion for a new trial. We think it would be useless to take up each of these several bills of exception as to the exclusion of this testimony, for what we have said above in our opinion shows that the fur-tlier testimony which was excluded ’ should have been admitted, and that even what was admitted with what was excluded clearly raised the issue of manslaughter, and the court-erred in not charging thereon.

7. Another bill of exception by appellant shows that he offered testimony to show that the deceased had failed to pay a part of the rent to Isaiah Jackson for the said house rented by Isaiah Jackson to deceased for 1909, and that a controversy or some feeling arose between them thereabouts. There was no error committed by the court in refusing to admit this testimony.

8. With the qualification made by the court in allowing appellant’s bill of exception taken to the refusal of the court to permit Isaiah Jackson to testify that he heard from others that the deceased was not going to get out of the house and give Jackson possession thereof, there was no error in excluding same.

9. By hill of exception No. 19 it is shown that the court permitted Mrs. Murphy, the wife of the deceased, to testify in effect that, when she got to the deceased, he was still alive and rational, and that, when she got there, she kissed him, and asked him if he knew her; that he replied, “Get -the doctor as quick as you can.” Shei then assured him that she had sent for the doctor, and would get him there as soon as she could. She then asked him if he wanted to go to the house. She understood his reply to he to take him easy, and she supposed that he realized his condition, and that he was not going to live, because it was but a few seconds until he told her to kiss him goodbye, and she did so, and he died before he was moved. Objection was made to the introduction of all of this, and especially of the fact that she had kissed him when she first or soon after she reached him, and then he requested her to kiss him good-bye, which she did, for many reasons, among them, that it was not a dying declaration of the deceased, as what he said and what was done did not tend to show anything about the cause or the facts of the killing, and it was a conversation and acts between the deceased and his wife when the appellant was not present, and would have a tendency to prejudice the rights of the appellant and stir the emotions of the jury against him, and inflame their minds, and would be the occasion which was done of unfairly and improperly appealing to the sympathies of the jury. Our opinion is that this evidence was clearly inadmissible on all of the grounds objected to at the time.

10. Other bills show that the appellant objected to the introduction of the garments the deceased wore when he was shot. The theory of the state attempted to be supported by the introduction of these articles of clothing was to show that the appellant’s testimony and that of his witnesses as to the position of deceased’s gun at the time he was shot, and that the appellant shot first, and not the deceased, in our opinion was admissible. The qualification of the bills shows that the bloody portions of the garments were cut away, leaving only substantially that portion of the clothing where the shots passed through. Such testimony was admissible for the purpose for which it was offered and introduced by the state.

11. Another bill by the appellant was to the exclusion of the testimony of appellant’s father of what the appellant told him when he first saw him some time after the killing. In our opinion this testimony was properly excluded. It was not res gestas.

12. Several bills complain of the argument of the county attorney. This court again calls attention to the fact that the attorneys representing the state must stay within the record in their argument, and not use inflammatory language in their arguments. However, it is perfectly legitimate for the state’s counsel to insist upon the infliction of the death penalty where the evidence justifies it, and they clearly have the right to argue from the testimony which was introduced and from the record such matters before the jury.

13. The appellant insists that the court erred in charging on the subject of threats by the deceased against the appellant. A charge on this subject is, of course, a separate and distinct matter from that of self-defense. Our opinion is that the record in this case shows that the court was called upon to charge on the subject of threats, and there was no error in the court giving a correct charge on that subject applicable to the evidence -introduced.

As stated above, it is unnecessary to give all of the several bills of exception and the many questions raised by this record. We have given a sufficient indication of what is admissible and what not, and of the several charges to be given, and of the defects in some of them as complained of by the appellant.

For the errors above pointed out, the judgment is reversed, and the cause is remanded.  