
    SLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.)
    1. Homicide (§ 303). — Evidence — Instkuc-tions.
    Where accused, to justify the killing, showed that decedent at night was in accused’s inclosure, stealing corn, and that as decedent ■came from the cornfield accused shot him, and the state’s evidence showed that decedent did ¡not steal, but was trespassing on accused’s premises at night, looking for watermelons, a ■charge that if accused killed decedent to prevent theft in the nighttime, but the place at which the killing occurred was not the place where the theft was committed, he could not justify the killing, was erroneous under the facts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. § 303.]
    2. Homicide (§ 124) — Justification—Pbe-venting Theft.
    Under Pen. Code 1895, arts. 674, 675, providing that a homicide to prevent theft at night is justifiable where the killing takes place while decedent is in the act of stealing, etc., a killing of decedent while trespassing at night on the premises of accused, but not engaged in stealing, nor in committing acts making it reasonably appear that he was there to steal, is unjustifiable, but, where decedent is stealing in the nighttime, and is leaving the premises with the stolen goods in his possession, accused is justified in killing him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 184-188; Dec. Dig. §'124.] *
    3. Juey (§ 99) — Competency.
    Jurors who have formed and expressed an opinion prior to their acceptance on the jury to the effect that accused, is guilty are disqualified jurors.
    [Ed. Note. — For other eases, see Jury, Cent. Dig. §§ 438-443, 445-448; Dec. Dig. § 99.]
    Appeal from District Court, Mills County; Jno. W. Goodwin, Judge.
    Jim Slack was convicted of murder in the second -degree, and he appeals.
    Reversed and remanded.
    R. L. H. Williams and J. C. Darroch, both of Goldthwaite, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases sec same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes'
    
   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years’ confinement in the penitentiary.

The record discloses that appellant and deceased had never met until the night of the homicide. Appellant was at his home when deceased drove up in a wagon. • His wife and John O’Bannon and wife were also in the wagon, although appellant' did not see them. Deceased asked the way to Miller’s and appellant instructed them as to the way, and they drove on. Appellant retired, going to sleep on his gallery. Later in the night the rattle of a wagon awoke him, and, some one having been depredating around his premises, he listened, and near his barn the rattle of the wagon ceased. This aroused his suspicion, and he got up and went to the barn. Down the road he could see the wagon standing still, and heard some one breaking corn in his field, as he testifies.' He returned to the house, dressed in part, got his gun, and returned to his field, saying he could still hear the gathering of corn. He got in a position near some trees where he could not be seen, and watched and listened. In a few moments a man came out of his cornfield with a sack of corn on his shoulder, and something in his right hand. Appellant says, thinking he had been discovered, and that he, the man, had a pistol in his right hand, he fired, the shot killing deceased.

The state’s witnesses, Mrs. Speed, John O’Bannon, and wife, admit they came back down the road and stopped the wagon, and deceased got out and went into the field of appellant, saying he was going to see if he could not find a watermelon in the cotton. O’Bannon says, deceased not returning, he got out and went into the field in search of him. Appellant says O’Bannon was also pulling corn, but, as he threw up his hands when commanded, he did not shoot him. The state evidently relied on proving that deceased was not in fact stealing corn, and that the two sacks of corn had been placed where found by appellant after the homicide, although no positive testimony was offered on that point. The state’s witnesses all say they did not know where deceased was when shot, while appellant claims he was coming right from his corn patch with a sack of corn. Two sacks of corn were found in the field next day. It is unquestioned that deceased was killed inside of the inclosure of appellant, about a 60-acre field in which corn and cotton were planted.

The court instructed the jury; “If you believe that the defendant shot and killed Ed Speed, the deceased, for the purpose of preventing theft of his corn in the nighttime by the deceásed, but believe that the place at which defendant shot Ed Speed was not the place where the theft was committed or within reach of shotgun from such place, then defendant cannot justify the killing on the ground that it was for the purpose of preventing such theft.” As an abstract proposition of law this is correct, but we, like appellant, fail to see its application to the state of facts proven in this case. If deceased stole any corn, he was killed inside of appellant’s inclosure as he came from the cornfield on his way to his wagon with the corn, and, this being the undisputed proof of appellant, the proposition of law had no application. The proof for the state circumstantially might raise an issue that deceased had stolen no corn, but was trespassing on appellant’s premises at night looking for watermelons, and this would not call for the above charge, and it was error to give it under the evidence in this case.

In the ease of Grant v. Hass, 31 Tex. Civ. App. 693, 75 S. W. 345, our Court of Civil Appeals, in construing this article of our Penal Code, says: “Article 674, Penal Code, which justifies homicide in defense of property, in so far as it refers to the crime of theft is as follows: ‘Homicide is permitted in the necessary defense of person or property under the circumstances and subject to the rules here set forth.’ Article 675 provides that homicide for. theft at night is justifiable, when committed under the following circumstances: ‘First. It must reasonably appear by acts, or by words coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named,’ which includes theft at night. ‘Second. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. Third. It must take place before the offense committed by the party killed is actually completed. * * * Eighth. In case of burglary apd theft by night, the homicide is justifiable at any time while the offender is in the building, or at the place where the theft is committed, or is within reach of gunshot from such place or building.’ If the plaintiff had entered the premises. at night, with the purpose and intention of stealing the melons, and his conduct had been of such a character as to make it reasonably appear that such was his purpose, his death by killing would have been justifiable. The killing must take place while the offender is in the act of committing the offense, or after some act done by him showing an intention to commit the offense; or, if the theft is completed, the killing must occur within gunshot distance of the place where the theft was committed. We are also of the opinion that in a proper case the rule of law just stated will justify the homicide of one who in the nighttime unlawfully invades or trespasses upon the premises of another with no purpose or intention to steal, but whose conduct is of such a character as to piake it reasonably appear to one exercising proper care and caution that such was his intention. The apprehension upon the part of the slayer must be reasonable, not merely conjectural, such as might arise from the mere presence of the intruder, but must be predicated upon some act upon the part of the deceased of a nature calculated to arouse in the mind of one of ordinary prudence and caution that a theft is about to be committed.” This is in accordance with the decision of this court in the case of Whitten v. State, 29 Tex. App. 504, 16 S. W. 296, and in these opinions the rules of law applicable are so fully discussed we merely refer to them. If deceased was merely trespassing on the premises of appellant, and at the time he was shot he was not engaged in committing a theft, and his acts and conduct were not such at the time as to make it reasonably appear to appellant that he was there for the purpose of committing a theft, the killing would be unjustifiable. But, if, in fact, deceased was stealing com in the nighttime, and was leaving the premises with the corn in his possession, appellant was justifiable in shooting him. This may seem to be a harsh rule of law, but the character of persons generally who commit theft in the nighttime experience has shown will take life before suffering detection and arrest, and the Legislature has for this reason broadened the common-law rule, and we have no right to restrict it.

Again, by the affidavits of Montgomery and Woody, it is made to appear that jurors Jim Brim and Sam Ward had formed and expressed an opinion prior to the time they were accepted and served on the jury, Brim having stated he “believed appellant was guilty, and, if he was on the jury, he would convict him,” while Ward is alleged to have said “that appellant had no right to kill deceased, and ought to be convicted.” No contest of these affidavits is filed, and the record comes to us with these facts testified to and not denied. Every person is entitled to a trial by a fair and impartial jury, and by jurors who have not prejudged his. cause, and, if these jurors went into the jury box with fixed views as stated by those witnesses,» they were improper jurors.

We do not deem it necessary to discuss the other Questions raised, as, on account of the above errors, the ease must be reversed and remanded.

The judgment is reversed, and the cause is remanded.  