
    STREICH v. STATE.
    (No. 3696.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Homicide <&wkey; 123 — Self-Defense — Defense Against Simple Assault.
    Where defendant killed deceased, an unwelcome guest in his house, whom he had attempted to eject, when the latter was making some sort of an assault upon him, either with or without a knife, defendant was justified if, in striking deceased with a pistol, so that the weapon was discharged, killing deceased, defendant used no more force than was reasonably necessary in resisting the. attack upon himself, since the right of self-defense exists in case of a mere simple assault upon one, as well as in ease of an assault which really or apparently threatens death or serious bodily injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 182, 183; Dec. Dig. &wkey;123J
    2. Criminal Daw <&wkey;636 — Triajd—Reception op Verdict — Presence oe Defendant — Statute.
    Under Code Cr. Proc. 1911, art. 899, providing that in all prosecutions for felonies the defendant must be personally present at the trial, but that in all cases the verdict shall be effectually received and entered in the absence of the defendant, when such absence on his part is willful or voluntary, where defendant, in a prosecution for assault with intent to murder, being under bonds, was away from the courthouse eating his supper when the jury returned its verdict, the judge not recalling defendant before receiving the same, such verdict was proper, since it was defendant’s duty to attend the court, and not the duty of the court to see that he did so.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. <&wkey;>636.]
    Davidson, J., dissenting in part.
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    C. F. Streich was convicted of assault to murder, and be appeals.
    Judgment reversed, and cause remanded.
    Walker & Burleson, of 'San Saba, Martin & Martin, of Fredericksburg, and W. T. Bagby, of Hallettsville, for appellant. Flack & Flack, of San Saba, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

This is rather a voluminous record in many respects. The case shows to have been fought with ability on both sides. The assault occurred at appellant’s house. The deceased, Taff, had made an assault on appellant on the gallery, at least, not in one of the rooms, having a knife in his hand at the time. The parties separated, but met again in one of the rooms in the house, and the trouble came up. Under the state’s theory, appellant shot Taff with a pistol. The evidence seems to be fairly conclusive that Taff was approaching appellant when the pistol was fired. The defendant, however, goes further, and states that he thought Taff was approaching him with a knife in his hand, and had succeeded in getting hold of him, and in the scuffle the pistol went off and shot Taff accidentally. There is evidence, which seems not to have been disputed, that appellant struck Taff on the head with the pistol, and a conclusion might be drawn, so far as the jury is concerned, that the pistol went off then. So we have the two theories— one for the state that defendant shot Taff intentionally, and the other that he struck him on the head, and in the scuffle growing out of this the pistol was discharged. We have, further, the testimony of appellant’s side that Taff was attacking Mm, he thought, with a knife; but there is testimony which seems to indicate the assaulted party did not have a knife open at the time. This is a sufficient statement to bring in review the questions to be decided.

The court charged the jury on assault to murder, and gave a general charge on aggravated assault and accident. In his charge on self-defense the court limited appellant’s right to danger and apparent danger to life or serious bodily harm from Taff. Objection was urged to this charge in the proper manner, and special requested instructions were asked, but refused. The effect of these exceptions and the special instructions asked was that the court had improperly restricted and limited appellant’s right of self-defense. It was contended in the trial court, and is here urged as being the law, that appellant had the right of self-defense under the circumstances, whether Ms life was in danger or his body of serious bodily harm. This is unquestionably the law, as applicable to this ease. Taff was an intruder, an unwelcome guest at the house of appellant; he was trying to get him away, and, after the first difficulty on the gallery, appellant found him in a room, and his testimony is that Taff made another assault upon him, and he thought with a knife. But whether he had a knife, or not, and made the assault at the time he was shot, and appellant only struck with the pistol in resistance to this attack, if his life was in danger, he was justified. If it was not in danger, and he used more force than was necessary, either to put Taff out of the house or resist the at-taels made upon Mm, still he had a right to have the jury instructed as to tMs phase oí the law of self-defense. The law of self-defense is not restricted to apparent or real danger of death or serious bodily injury under appropriate circumstances. A man has a right of self-defense in an ordinary simple assault; he has it in aggravated assault; he has it in assault to murder, as well as in the homicide itself. If appellant used more force than was necessary in resisting the attack that Taff may have made upon him, or used more force than was necessary to put Mm out of the house, still, if Ms life was not in danger or Ms body of serious bodily harm, he had the right of self-defense as against the other phase of it. This was the crucial point in the case. The refused special charge was on a vital issue, and the court’s charge restricted it, so that the jury would not apply, and were not informed of the law so they could apply, it to self-defense against danger less than death or serious bodily harm. This ought not to be a debatable question under all the authorities, as well as under statutory enactments.

Application for continuance was made and overruled. In view of another trial, that matter is not discussed. The witnesses may be obtained, and, if not, the matter may be presented in a different way, and would be viewed differently in another application for continuance.

There is another question in the case wMch ought to reverse the case; hut, it being reversed on the other question, it is not fully discussed, but mentioned rather incidentally. The jury retired to consider their verdict. Appellant was on bond; had a right to be on bond under the statute. He asked the county attorney whether he could go home, in view of the fact the jury had not returned a verdict and were out considering it, and the county attorney suggested to him he had better not leave; that the jury might come in with a verdict. Appellant made arrangements with a neighbor to carry Ms horse home, so he might spend the night around the courthouse to respond to any verdict the jury might return. There seems to have been a general scattering from around the courtroom, it being about supper time. Appellant went off to get his supper, and it seems the jury brought in a verdict while appellant was getting his supper, near by and in easy reach of the courthouse by call from the sheriff. The verdict was brought in and received by the court, and the jury discharged, in the absence of the defendant. He was not called, but was back at the courthouse in a few minutes. The court seems to have thought, because counsel for appellant was present and raised no objection, therefore defendant’s rights in the matter were waived. His counsel said he was as much unaware of the absence of the defendant as was the court. The duty was more obligatory upon the court to see that defendant was present when the verdict was received than on the counsel. The verdict ought not to have been received in the absence of the defendant; this by mandatory provisions of the law. It is evidenced from this record that defendant was not. willfully or voluntarily absent within the meaning of the law at the time the verdict was received. He was there directly afterwards, and was seen by the judge in one of the rooms of the courthouse. The reception of this verdict under the decisions of tMs court was not correct. This is not a novel case. See Derden v. State, 56 Tex. Cr. R. 396, 120 S. W. 485, 133 Am. St. Rep. 986; Cowart v. State, 145 S. W. 341; Choice v. State, 52 Tex. Cr. R. 285, 106 S. W. 387; Whitehead v. State, 147 S. W. 583; Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117; Foreman v. State, 60 Tex. Cr. R. 576, 132 S. W. 937; Emery v. State, 57 Tex. Cr. R. 423, 123 S. W. 133, 136 Am. St. Rep. 988; Stoddard v. State, 132 Wis. 520, 112 N. W. 453, 13 Ann. Cas. 1211; Hill v. State, 17 Wis. 675, 86 Am. Dec. 736.

With reference to the other phase of this matter, that is, the reassembling of the jury and having them return a verdict in the presence of the defendant, is unauthorized by law. This has been a matter of frequent decision, and one very recently in an opinion by Judge Harper. After the jury returns a verdict and has been discharged, that ends their connection with the case. They cannot be reassembled to do anything in connection with their verdict. That is a closed incident, and a recalling is unjustified and unauthorized. So a recalling of the jury did not amend the matter, nor assist it in any way, but rather emphasized the fact the court understood that the former act in receiving the verdict in the absence of defendant was erroneous, and by this means he sought to correct that mistake or error.

There are other matters in connection with the first proposition — that is, charges in reference to self-defense of the home and necessary force to eject Taff from the house; but in view of what has been said these matters will not arise upon another trial. In other words, the court will properly instruct the jury with reference to those matters.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J., and HARPER, J. Under article 899, as the appellant was on bond, and he had voluntarily gone out of the courtroom, we do not think there was any error in receiving the verdict. It was appellant’s duty to attend court, and not the duty of the court to see that he did attend, since the enactment of article 899. 
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