
    ANDERSON v. STATE.
    (No. 5280.)
    (Court of Criminal Appeals of Texas.
    June 11, 1919.)
    1. Homicide <g=>803 — Instructions—Defense of Property.
    Charge on defense of property should not have been given, there being no fact showing defendant was defending against an attack on his property.
    2. Homicide <§=>300(7) — Instructions—Self-Defense.
    The state’s case being a killing from malice, and defendant’s theory being that deceased came in a threatening attitude to where he was working, -and he thought his life' was in danger, and he defended from that standpoint, the necessity to resort to other means of defense under Pen. Code 1911, art. 1107, is not to be charged.
    3. Homicide <§=>309(1) — Instructions—Manslaughter.
    Charge on manslaughter giving, as adequate cause, an attack by deceased on defendant threatening death, is erroneous; such matter constituting self-defense.
    4. Homicide <§=>309(1) — Instructions—Manslaughter — Provocation.
    Instruction on manslaughter limiting provocation to the time of the killing held, misleading, the trouble at the time being but a renewal of that of the evening before, and it being permissible to consider the two together.'
    5. Criminal Law <§=364(2) — Evidence — Res Gestae.
    Statements of defendant to his wife when, just after trouble with deceased the night before the homicide, he came home excited and agitated, and told of the occurrence, are within the rule of res geste.
    6. Criminal Law <§=>1091(11) — Bill of Exceptions — Rejection of Evidence — Incorporation.
    Defendant should, on objection to question to his witness being sustained as calling for self-serving declarations, be allowed to incorporate the excluded testimony.
    7. Criminal Law <§=>396(1) — Homicide <§=> 156(1) — Deliberation—Evidence to Meet Claim.
    The state', claiming killing of white landlord by negro renter, in the rented field, on the afternoon after trouble between the parties the night before', when the negro was ordered to leave the place, was deliberate, and bringing out the fact of defendant’s absence from the field in the forenoon, and his return thereto with his gun, he to meet this could show, not only that in the forenoon he went to town to consult with white friends as to what he should do, but that they advised him he had a right to remain with his crop.
    8. Criminal Law <§=>338(7) — Evidence — Matter Exciting Sympathy.
    Wife' of deceased, who did not see the difficulty, but only heard a remark of. deceased, should not have been allowed to testify that she was confined in bed with an,infant, as it could serve only to influence the the jury from sympathy; she and deceased being white, and defendant a negro.
    9. Criminal Law <§=>1128(2) — Appeal—Record.
    Remarks of prosecuting attorney in argument, made the basis of a sworn motion for new trial, will be taken on appeal as having occurred, there being no contest in regard to it, and no facts introduced on motion for new trial, notwithstanding affidavits of state’s counsel and the trial judge which were forwarded to the appellate court after the record was filed are independent of the record, and so cannot be considered.
    10. Criminal Law <§=>723(5) — Trial — Argument of Prosecuting Attorney.
    Statements in argument of prosecuting attorney on trial of negro for killing a white man, as to negro murderers and rapists, matters not in evidence, condemned, as tending to impair fairness of trial.
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    James Anderson was convicted of murder, and he appeals.
    Reversed and remanded.
    D. E. Coffman and Andrew J. Priest, both of Dallas, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant, a negro, was convicted for killing Clarence Potter a white man, and given the death penalty.

Briefly, the evidence discloses that appellant was a renter on the farm of deceased, occupying a tenant house on the premises, and also was employed by the deceased to assist in work about the place. Among other things, it was his duty to assist in feeding the work stock. ' The killing occurred on the 19th of June. On the evening of the 18th appellant fed the stock. Deceased came and asked him if he had fed the stock. Appellant replied in the affirmative and as directed by deceased. This statement was challenged as to placing a sufficient amount of hay in the lot for the stock not fed in the barn. The deceased questioned the accuracy of appellant’s statement, whereupon appellant replied that he had followed his instructions. Appellant then went in the barn to secure more hay, and deceased followed him. What occurred immediately in the barn is shown by the testimony of defendant, there being no one inside the barn except himself and deceased. There was another witness who testified to the preceding facts, and also with reference to what occurred when appellant and deceased emerged from the barn. Appellant’s statement is that while in the barn deceased took from where it was hanging a hay hook. This was a heavy iron hook. Deceased began beating him with it. Appellant warded oft his blows as best he could and ran. The third blow struck him in the back, and he said the scar from that wound was on his back at the time he was testifying; that he went immediately home. The other witness did not know what occurred in the barn. As they emerged, appellant was in front followed by deceased; that appellant picked up a piece of plank lying near by, and deceased made him put it down, and witness left at that juncture and heard nothing more. During the trouble and about its termination, the deceased told appellant that he must leave his place. The language and intonation of voice was an issuable fact, whether or not it was in an angry or threatening tone. Appellant immediately went home, spent the night, and the next morning went to Grand Prairie, about two miles away, to see his white friends, among them the constable. He returned from there about XI or 11:30, ate his midday meal, got his hoe, and went to his crop, and began hoeing cotton and cutting weeds. This was about 1 o’clock. About 2 o’clock deceased went to his part of the field several hundred yards away and began .plowing. Shortly after reaching this point, he left his team and plow and went to where appellant was working. A conversation occurred between them, the words of which were not heard by a state’s witness who was a hundred yards or more away. Appellant testified that when deceased approached him it was in an angry and threatening way, and was practically a renewal of the trouble of the evening before with reference to his leaving the place; that he made threatening demonstrations as he approached. Appellant told him not to come closer. He continued to approach in this attitude, when appellant picked up his gun, which was near by, and fired two shots, which resulted fatally.

Upon this state of case the court charg. ed the jury with reference to murder, manslaughter, self-defense, and in defense of personal property. There were several exceptions reserved to the charge, some of which were refused by the court as shown by his indorsement on the bills. These were so qualified as to leave it in some doubt as to whether they are sufficiently presented for consideration. There were exceptions to the charge before being read to the jury, which are approved without qualification. It may be questionable that standing alone these exceptions are sufficient; but, in addition to reserving these exceptions, appellant submitted a number of special charges which were refused by the court. His refusal was based on the statement that he had already charged the law correctly. Inasmuch as tile judgment will have to be reversed on other matters, the sufficiency of the bills of exception with reference to charges will not be discussed, but the general proposition involved in them will be noticed, inasmuch as the case must be again tried.

The charge on the defense of property, as we understand this record, should not have been given. This is specially true with reference to defense of personal property to which the court limited its charge in the instructions to the jury. As we understand this record, there is no fact that shows defendant was defending against an attack on his property, either personal or otherwise, and clearly not as to personal property. The deceased had ordered him to leave the plaqe. Appellant relied upon self-defense from apparent danger, and not from actual danger. There are statements in the court’s charge ■limiting some phases of the defensive matters to actual danger. This was also carried into the charge on manslaughter. The court 'also charged on self-defense from the standpoint of resort to other means under article 1107 of the Revised P. C., which requires that in any other unlawful and violent attack besides those mentioned in the preceding article, which is justifiable homicide, all other means must be resorted to for the prevention of the injury except retreat. The state’s case was a killing from malice on account of the difficulty the day before, urged because appellant carried his gun to his field where he was at work. Appellant’s theory was that deceased came to where he was at work in a threatening attitude, and he thought his life was in danger, and he defended from that standpoint. Where such is the case, .the attacks mentioned in article 1107, supra, are not to be charged. The decisions are very clear and numerous. There is a long line of decisions which lay down this proposition: If the attack, if made at all, was made with a deadly weapon, and from defendant’s standpoint at the time produced a reasonable expectation or fear of death or of serious bodily injury, it is error to charge the jury on the theory that defendant must have resorted to other means than retreat to avoid the necessity of killing his assailant. These cases are found collated in Branch’s Ann. P. C. § 1919. The cases are too numerous to be here collated and well understood. This further proposition is also stated by Mr. Branch in the same section: If defendant acts under a reasonable expectation or fear of death or of serious bodily injury, produced by the acts of his adversary at the time of the homicide, he is not bound to retreat, nor resort to other means of averting danger; he may slay his adversary if the danger be imminent and pressing, or if it reasonably appeared so to be to defendant, viewed from his standpoint at the time. The authorities under this proposition are also listed by Mr. Branch.

The charge on manslaughter contains, among other things, this:

“The following are deemed adequate causes: An assault or attack by the deceased upon the defendant threatening death or serious bodily harm.”

The court signs the exception with the qualification that this and some of the other objections to the charge on manslaughter were only excepted to in a general way. The exception approved by the judge is as follows:

“Now comes defendant and excepts to the charge on manslaughter because it includes subdivision 1 of article 1129, and the last sentence of section 2 of article 1129 of the Texas Penal Code, because said portions are not the law applicable to the case, are misleading to the jury, and prejudicial to the defendant.”

Another exception to the charge on manslaughter is as follows:

“Now comes the defendant and excepts to the court’s charge on manslaughter because the same does not properly set forth the law applicable to the case, and the court’s action in refusing to give the defendant’s special charges Nos. 1, 2, 3, and 4.”

Without discussing whether these exceptions and the refused requested instructions cover what the defendant believed to be the defects and errors in the court’s charge, they were sufficient to call the court’s attention to these matters. They are noticed so that upon another trial the court’s charge should be so given as to avoid such errors. The quotation from that charge authorizes the jury to convict of manslaughter upon a clear-cut proposition of self-defense. The statute announces as adequate cause an attack causing pain or bloodshed. As given the court authorizes the jury to convict of manslaughter upon the law of self-defense. The statute make this the law of self-defense, and in his charge on self-defense the same proposition is given as basis for acquittal. There are other matters suggested for reversal on the charge of manslaughter which we think should not occur upon another trial. That portion of the charge which limits the provocation to the time of killing, and not to some other provocation as given by the charge, is misleading. It was impossible, under the circumstances of this case, to disconnect the difficulty the evening before from that which occurred at the time of the homicide. It was but a renewal with an interregnum, but plainly referable to the previous trouble. Had the killing occurred the evening before, there would be no question of manslaughter being in the case. There is no question but that deceased did approach him at the time of the killing, and reminded him that he had ordered him to leave his premises, and in such manner as to demand he should leave. While defendant might not be permitted to use the provocation the evening before to reduce the homicide to manslaughter, yet the two should be considered together, and in the light of each other. The court did in a general way instruct the jury that they might consider all the facts and circumstances in the case. If upon another trial the court should see proper to charge with reference to the previous provocation, it must be so done as not to instruct the jury not to consider it in any light as a provocation. Standing by itself, it might not be a provocation; yet in the light of all the circumstances it was but a renewal of the difficulty that occurred the evening before. There should be a direct and pertinent application of the law to the facts. The charge in regard to defense of property, especially personal property, should be avoided, and that the accused should be required to resort to all other means.

A bill of exceptions recites that, while appellant’s wife was upon the witness stand, the defendant sought to prove by her that he came home from the barn on the evening of the 18th excited and agitated. She asked him what was the matter; was told what had occurred between himself and deceased, and his fear of trouble; that he had been ordered from the place, and he did not know what to do. The court ruled this out on the theory that it was self-serving, and also states in the bill that defendant did not offer to prove that his mind was agitated and excited, and did not offer to prove specifically at what time the conversation occurred after he reached his residence. Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Lewallen v. State, 33 Tex. Cr. ft. 412, 26 S. W. 832. The defendant’s counsel sought to dictate and state his reasons, and what the witness would testify in this respect, among’ other things that he was agitated and excit- , ed. The bill shows at this juncture the district attorney objected and asked the couri if he was inaugurating the practice of stopping the trial in order for the dictation of a bill of exceptions, and the court said no. These statements to the wife were within the rule of res gestee. If he was excited and agitated at the time and had just come from where he had been beaten by deceased, and ordered to leave his premises, his statements would be admissible in view of this record. We think for this reason the judgment should be reversed. The accused should be permitted to incorporate his excluded testimony.

There is another bill of exceptions which recites that defendant offered to testify that on the morning of the 19th he went to the town of Grand Prairie to talk with his white friends about his trouble with deceased and get their advice as to what he should do. The bill states very fully what he expected to testify. We are of opinion defendant should have been permitted to testify to these matters. There is no question in this record that the difficulty between deceased and defendant grew out of the matters already mentioned at the barn on the evening of the 18th. Appellant was permitted to testify he did go to Grand Prairie to see his white friends in regard to what he should do about leaving his crop. All else was excluded on the theory it was self-serving. State’s case is predicated upon the idea that the killing was deliberate, and that taking his gun with him to the field was in pursuance of such formed design. The state did bring out the fact of his absence from' the field and his coming back and going to work, • and that he carried his gun to his place of work. Appellant had a right to explain his absence. He had a right to explain or do away with any adverse fact by reason of the state’s view of it if he could, and this by the express terms of the statute. These facts were used by the state as incriminating. He would have stated his purpose was to confer with the white men, he being a negro, and a renter, and deceased the landlord, a white man, in view of the threatening attitude of deceased, and the beating, and being ordered to leave the place, to meet the force and effect of the state’s contention. He would have testified and would have shown by these white men that they, told him he had a right to remain with his crop. The state relied upon its side of the case to show malice, deliberation, preparation, etc. Appellant had a right to meet this and show that his purpose was not as contended by the state. The state may prove motive or malice, deliberation, or purpose; but when the state does this the defendant has a right to. meet this and show that his purpose was not such as was contended by the state. Roller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832; Berry v. State, 30 Tex. App. 423, 17 S. W. 1080; Branch’s Crim. Law, § 337. He might not be permitted to go into details of these conversations, but that they advised him he had the right to remain with his crop we think was permissible.

There is another question. The wife of deceased was placed upon the witness stand and testified that she heard her husband say: “Put it down! Put it down!” She did not, as shown by the bill, see any of the difficulty and could not because of obstruction. The state was then, over objection, permitted to prove by this witness that she was in bed from childbirth, and that the child was three or four days old at the time, and it was also shown she had this baby in her arms while testifying on the witness stand before the jury. Serious objection was urged to this testimony, which should have been sustained. The state could prove by the wife that she heard her husband make the remarks, but it was not proper to prove by her the fact she was confined in bed with childbirth, the baby only being three of four days' of age. She was a white woman, and deceased a white man. The natural sympathy and feeling engendered by the jury for a woman under such circumstances must have had a decided influence. The injury is emphasized in the verdict, which was death.

There is another bill of exceptions reserved to remarks of the district attorney. Some of these are reserved in a bill of exceptions, and some in motion for a new trial. The motion for a new trial was sworn to by defendant and by his counsel as being true. There was no contest in reference to it, and no facts introduced on the motion for new trial. There is an affidavit signed by the district judge and one by state’s counsel forwarded here since the record was filed, which are independent of the record and cannot be considered. These remarks were brought to the attention of the court as stated. There being no evidence and no controversy about it, they will be taken under the authorities as having occurred. See Stanley v. State, 16 Tex. App. 400; McLaughlin v. State, 48 Tex. Cr. R. 215, 87 S. W. 158; Bateson v. State, 46 Tex. Cr. R. 34, 80 S. W. 88; Anderson v. State, 50 Tex. Cr. R. 137, 95 S. W. 1037; French v. State, 55 Tex. Cr. R. 541, 117 S. W. 848. There are a number of other cases that might be cited, but these are sufficient.

Among other things, it is shown in motion for new trial that the following language was used by one of the prosecuting officers:

“Negro rioters in Houston called a white woman and her baby to the door and then cruelly shot them down.”

State’s counsel also denounced the defendant as a “murderer and a rapist,” and in substance said:

“When once his (defendant’s) desire for white blood arises, nothing can satiate his bloodthirstiness.”

Again:

“Why didn’t he go and get an injunction if he were acting in defense of property.”

And again he said:

“Inasmuch as. the good citizens of Grand Prairie had restrained and withheld themselves until the trial of this case, it is your duty to bring in the death penalty.”

These are samples of the argument to which reference is above made. The .judge undertakes to qualify the language to some extent. There was no contest as to the language used with reference to the riot in Houston; there was no evidence that defendant was a murderer and a rapist, unless as to murder growing out of the facts of this case, or that he had ever otherwise acquired a thirst for the blood of white men. Language of this character should not be indulged. While the court in his qualification to the bill of exceptions undertook to minimize the force and effect of some of these remarks, the others seem to stand unchallenged, and especially those set out in the motion for new trial and not embodied in a bill of exceptions. Other matters are set up which occurred during the trial in the courtroom tending to impair fairness of trial.

This defendant was defended by two young lawyers appointed by the court. They showed commendable zeal and energy in the defense of their unfortunate client. The fact that counsel were appointed by the court- is to be considered, we think, legitimately in support of the proposition that defendant was a friendless negro without means and influence.

The judgment ought not to stand as affirmed in view of this record. It is therefore reversed and remanded. 
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     