
    HUGHES v. STATE.
    (No. 10168.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.
    State’s Rehearing Denied June 23, 1926.)
    1. Jury <&wkey;45, 110(1) — One convicted in federal court for manufacturing whisky without paying tax, and not pardoned, held disqualified as juror, which disqualification cannot be waived (U. S. Comp. St. §§ 5966, 10509;. Vernon’s Ann. Code, Cr. Proc. Tex. 1916, art. 692, subd. 3, and article 695).
    One previously convicted in federal court for manufacturing whisky without paying tax, punishment for which is by fine and imprisonment not exceeding two years under U. S. Comp. St. § 5966, and a felony under section 10509, and not pardoned, held disqualified as juror under Vernon’s Ann. Code Cr. Proc. Tex. 1916, art. 692, subd. 3, which disqualification cannot be waived in view of article 695.
    On Motion for Rehearing.
    2. Homicide <&wkey;>l!9.
    One-has no right to use greater force than is reasonably necessary, viewed from his. standpoint, to repel assault which is less than deadly or calculated to inflict serious bodily injury.
    <gr=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Smith Comity; J. R. Warren, Judge.
    Ernest Hughes was convicted of murder, and he appeals.
    Reversed and remanded.
    See, also, 274 S. W. 146.
    Butler, Price & Maynor and Gentry & Gray, all of Tyler, for appellant.
    Sam D. Stinson, State’s Atty., of'Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Smith county of murder; punishment fixed at 15 years in the penitentiary.

We are met at the threshold of our consideration of this case by the proposition that one of the jurors who tried the case had been convicted of a felony and his citizenship had not been restored.

The facts adduced on the hearing of appellant’s motion for new trial showed that Juror Hobbs admitted that he had been convicted in the federal court of Alabama in 1912 for manufacturing whisky without paying the tax required by law, and that he had not been pardoned. The punishment for said offense appears to be by fine and imprisonment not exceeding two years. See section 5966, 1916 Compilation Federal Statutes. We find that a felony is defined in section 10509 of the same Federal Statutes as one which may be punished by death or imprisonment for any term exceeding one year. Said section was enacted in 1909, hence was in'force when Juror Hobbs was convicted. One who has been convicted for a felony is disqualified as a juror in this state. Subdivision 3, art. 692, Vernon’s Ann. Code Cr. Proc. 1916. This ground of disqualification cannot be waived. Article 695, Vernon’s Ann. Code Cr. Proc. 1916. The fact that the conviction was in the federal court does not prevent its being a disqualification. Amaya v. State, 87 Tex. Cr. R. 160, 220 S. W. 98.

The other questions raised may not occur on another trial.

For the error mentioned, the judgment must be reversed and the cause remanded.

On Motion for Rehearing.

Juror Hobbs swore upon the hearing of the motion for new trial that he had been convicted in 1912 in the federal court in Alabama for having operated a still “without paying the tax.” This seems a plain statement. The federal statute referred to in our original opinion makés the offense of operating a still without paying the tax a felony. We are at a loss to know how we could presume that Hobbs may have been convicted under a federal statute penalizing one who operates a still without obtaining a permit; it being insisted by the state that he may have had reference to this last-mentioned statute, punishment for a violation of which is a misdemeanor. Hobbs having used words plainly indicating the character of offense for which he had been convicted, if the state had not been satisfied it could have developed the matter further, but did not.

We are not in accord with appellant’s objection to the charge of the court on excessive force. While one is entitled to defend against any character of assault, still if the assault be less than deadly, or calculated to inflict serious bodily injury, the defendant has no right to use greater force than is reasonably necessary to repel the attach viewed from his standpoint.

The state’s motion for rehearing will be overruled.  