
    MEADOR v. STATE.
    (No. 7428.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.)
    1.Statutes @=167(1) — Statutes held repealed by omission from Revised Statutes of 1911.
    The adoption of the Code of Criminal Procedure, embraced in the Revised Statutes of 1911, omitting certain provisions of chapter 4, tit. 28 (articles 1111-1119), Rev. St. 1895, relative to calling special terms of the district court, and substituting the provisions of chapter 83, Acts Reg. Sess. 29th Leg. (1905), operated as a repeal of the omitted parts of the statute, since Const, art. 3, §§ 35, 36, forbidding passage of bill containing more than one subject expressed in the title or amending laws by reference to the title only, are specifically excluded by section 43 from applying to acts adopting revisions or digests of former statutes.
    2. Jury <®=»I3I (8) — Error to exclude question to juryman whether be had a prejudice against the plea of self-diefense.
    Under the general rule that to aid accused to intelligently exercise his peremptory challenges he may ask any question whose answer would reasonably affect his choice of jurors, accused may question a venireman as to prejudice against the plea of self-defense, even though he may be ready to answer that notwithstanding such attitude he could render a verdict unaffected thereby.
    3. Homicide <®=>308(I) — Charge in murder prosecution should be predicated on absence of self-defense and manslaughter.
    Though a shooting upon malice aforethought can be neither in self-defense nor manslaughter, it is the better practice to predicate criminality on the absence of self-defense as well as circumstances which might reduce the offense to manslaughter.
    4. Homicide @=>309 (I) — Charge on manslaughter should predicate criminality on absence of self-defense.
    One who kills another in sudden passion arising from adequate cause might act in self-defense, and where both issues are raised- by testimony it is better practice to qualify a charge dealing with manslaughter with the phrase ‘fand not a self-defense.”
    5. Homicide @=>288 — Grouping antecedent events in charge tends to confuse jury.
    Where the evidence conflicts as to .events immediately connected with the killing, grouping a large number of antecedent events in the charge is objectionable as tending to confuse the jury, since the jury might believe one or more of them and still defendant be not guilty.
    6. Homicide @=>301 — Self-defense In conflicting evidence to be considered in forming instructions.
    On the issue of self-defense where the state denies in toto the attack upon defendant’s father relied upon by the defense, the charge should be made to depend upon the jury’s belief of its existence as measured by the reasonable doubt standard.
    7. Homicide @=>l 10 — Killing of deceased while resisting unlawful force may be no higher offense than manslaughter.
    If defendant and his father restrained and falsely imprisoned deceased by force or threats or the show of a weapon, and thereby compelled him to submit to being tied and to agree that he might be carried to the county seat, even though their purpose was to do him no other harm, such acts would be unlawful, and if, in an effo.rt to regain his freedom, deceased made an assault on the father, in which defendant believed he used more force than was reasonably necessary, and in response to which defendant took the life of deceased,- defendant might be guilty of no higher offense than manslaughter.
    
      Appeal from District Court, Ward'County; Chas. Gibbs, Judge.
    , William Meador was convicted of murder, and he appeals.
    Reversed and remanded.
    John Howard; of Pecos, G. E. Lockhart, of 'Tahoka, and Williams & Williams, of Waco, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the' district court of Ward county of murder, and 'his punishment fixed at 99 years in the penitentiary.

Appella.pt was ,a boy 19 years of age. Deceased was, a tenant or hired man upon the ranch of appellant’s father. Peeling had grown up between the two men and had culminated in an encounter between them shortly before the homicide. On the day in question Andy Meador, the father of appellant, accompanied by appellant and some other members of his family, went- down to the ranch. Without going into details, there was trouble shortly after their arrival. Andy Meador with his family went to a neighbor’s house and phoned for the sheriff. They started Back toward their own ranch and on the way met deceased and his wife. We do not deem it necessary .to state the details of .what occurred here, but the testimony of the state, consisting principally of that of the wife of deceased on the one side, and that of 'the defense, as given by appellant and his sister, on'the other side, differs very materially. All -parties agree that they remained at this place several hours, and that finally deceased was tied by appellant and got into the car 'of the Meadors, in company with -his wife and the Meador family, and shortly thereafter the homicide took place. The state’s theory is that during the time the party were at the place where the homicide occurred, and when deceased submitted to be tied and got into the car, he -was under duress and acting according to the orders of appellant and his father, and-that after the party got into the car appellant and his father assaulted deceased and his wife with their hands, fists, a pair of pliers, and by beating them with guns, and finally by the shooting of deceased by this appellant. The defensive theory was that deceased agreed to go to the county seat in the car of appellant’s father, and that he consented to be tied and carried therein; that, after getting in the car under those circumstances, in some manner de'Ceased got his hands loose and made a violent 'assault upon Andy Meador under such circumstances and in such manner as to cause this appellant'to believe that he was about io kill Andy Meadór; and that so believing and in defense of his. father appellant shot and killed deceased.

By his plea to, the jurisdiction of the trial court appellant attacks the law of 1905 authorizing district judges to call special terms o'f their courts when deemed advisable, at times fixed by them, etc; - It is -urged that said act is violative of sections 35 and 36 of article 3 of our Constitution; that said act is invalid in that it attempts to authorize district judges to call special terms of their courts without having theretofore fixed the time for convening such court, and without having given notice in some sufficient way of the time for the convening of such special terms. Sections 35 and 36 of article 3 of our Constitution relied on by appellant, are those forbidding the passage of laws by bills containing more than one subject, which must be expressed in the title; or the amending of laws merely by reference only to their titles. This contention of appellant seems to us to be directed at the soundness of the opinion in Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191, in which this court held that the adoption of the Revised Statutes of 1911, from which were omitted certain provisions of chapter 4, tit. .28, Rev. St. 1895, relative to the calling of special terms of district courts, and by which, in lieu of said omitted articles of the statute, the provisions of chapter 83, Acts Reg. Sess. 29th Leg. (1905) were inserted, operated as a repeal of the omitted part¡3 of the statute. In our judgment the opinion in the Mayhew Case .is correct, and we do not discuss the application of sections 35 and 36 of article 3 of the Constitution, to the act of the Thirty-Second Legislature in 1911 adopting the, Revised Statutes omitting the above articles and inserting in lieu thereof others, further than to call attention to section 43 of said article 3 of our Constitution which in terms exempts from the operation of sections 35 and 36, supra, those acts of the Legislature having for their purpose the adoption of revisions or digests of former statutes. We might, however, further observe that in the adoption of the Revised Statutes of 1911, the Legislature included the revision of the Penal Code and the Code of Criminal Procedure of this state, and iri articles 93 to 97, c. 3, tit. 2, of the Code of Criminal Procedure as adopted in 1911, we find the articles relative to special terms of district courts which are included in the civil, statutes. In the Mayhew Case, supra, we said that there is now no notice required to be given or published of the convening of any special term of the district court, and that the judge can make any order at such special term as he could make at a regular term, .unless forbidden by statute. The Mayhew Case is approved in Davis v. State, 83 Tex. Cr. R. 539, 204 S. W. 652, which cites many authorities; also in Shaw v. State, 89 Tex. Cr. R. 205, 229 S. W. 509, and other cases since. We uphold the'validity of the statute authorizing the calling of the special term at which the indictment herein was returned.

In view of our disposition of the case, we do not discuss appellant’s application for a continuance.

Appellant has a number of bills of exception complaining of the refusal of the learned trial judge to allow him to' ask the veniremen if they were prejudiced against the law of self-defense based on real or apparent danger. There seems no doubt under the decisions in this state that for the purpose of enabling the accused to intelligently exercise his peremptory challenges he has the right to ask any question whose answer would reasonably affect his choice of jurors. If one is opposed to a certain law involved in the case on trial, he might be subject to challenge for cause if it appear that his opposition is such that he could not give to the party entitled the benefit of such law. If opposed at all, even though he be ready to answer that notwithstanding such attitude he could render a verdict unaffected, the parties litigant have the right to ask and be informed so that they may act thereafter with knowledge. Hibbitt v. State, 90 Tex. Cr. R. 527, 236 S. W. 739; Campbell v. Campbell (Tex. Civ. App.) 215 S. W. 137; Houston v. State, 83 Tex. Cr. R. 190, 202 S. W. 86; Fernandez v. State, 82 Tex. Cr. R. 129, 198 S. W. 301; Barnes v. State, 74 Tex. Cr. R. 501, 168 S. W. 858; Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590. The recent case of Reich v. State (No. 7277) 251 S. W. 1072, opinion May 30, 1923, discusses the principle involved and cites authorities. It follows that in our opinion the action of the learned trial judge was erroneous.

A shooting upon malice aforethought can be neither in self-defense nor manslaughter, but in our opinion a- charge would be better if it told the jury that if they believed from all the evidence in the case, beyond a reasonable doubt, that the defendant A. B. shot and killed the deceased O. D. in H. county, Tex., about the-day of —, and that such shooting was not in self-defense, nor under circumstances which would reduce it to manslaughter, but was upon malice aforethought, then in such event they should find him guilty of murder and assess his punishment, etc.

One who kills another in sudden passion arising from adequate cause might act in self-defense, and where both issues are raised by testimony, we think it the better practice in submitting the law applicable to manslaughter to place .therein the qualifying clause “and not in self-defense.”

The trial court gave the following as part of his charge:

“If you find and believe from the evidence that on the occasion in question the deceased had consented to be tied and hauled in a car to the town of Andrews, and if you further find that pursuant to such agreement, if any, the defendant assisted by or under the direction of his father tied the deceased, and if you further find that deceased entered said car agreeably to such transit, and if you further find that during such journey the deceased became untied, or was otherwise released, and if you further find that the deceased, or the deceased and his wife made an attack upon said Andy Meador, which from the manner and character thereof caused the defendant to have a reasonable expectation or fear that the deceased, or the deceased and his wife, would either kill or inflict serious bodily harm upon said Andy Meador, father of the defendant, and if you believe that the defendant, William Mead- or, acting upon such reasonable expectation- or fear, killed the deceased then and in that event, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

And again in paragraph 17 of the charge, in applying the law to the facts, the court grouped a great many facts involved in the testimony. We doubt the wisdom of such attempted grouping of facts in any case. The charge above quoted requires the jury to believe a number of things, one or more of which might be believed by them and still the accused not be 'guilty, and vice versa. If the facts relating to the immediate killing be in substantial accord, as viewed -from the standpoint of the state and the defendant, and the question be whether or not such facts were legal or illegal as viewed in the light of the state’s contention, or that of the defendant concerning antecedent events, then there might arise an apparent necessity, .for mentioning same and submitting the law of such antecedent facts and occurrences. In the instant ease, however, the testimony relative to what occurred at the time and immediately connected with the homicide varied so widely as reflected by the testimony for the state, from that offered by the appellant, as leads us to conclude that the attempted grouping of antecedent facts could but tend to confuse the jury.

According to the testimony of the wife of deceased, her husband made no attack at all upon Andy Meador at the time of the shooting. She testified that after her husband’s hands were tied by appellant they all got in .the car and that appellant made an assault upon her and when her husband struggled to release himself, apparently to defend witness, appellant beat him over the head with a pair of pliers and reduced him to a state of semiconsciousness. She then detailed continued assaults upon her and her husband by appellant and his father covering a period of one-half hour or, more, which culminated, according to her testimony, in the request by appellant of his father that he be permitted to shoot deceased. 'She said that Andy Mead- or told him that he was afraid Thornberry would hear the shot. The Thornberry residence was in sight about a half mile off. She further stated that appellant again asked his father to let him shoot deceased, and that Andy Meador told him to go, ahead and shoot him; whereupon appellant fired the fatal shot.

Appellant and his sister testified in substantial accord that, after waiting for the sheriff to come for a long time, deceased agreed that he might be tied and carried to Andrews, the county seat of Andrews county, in their father’s car, and that appellant tied him and the party all got in the car, and that soon after getting in and before they left the place deceased got loose in some way and threw himself upon appellant’s father and began choking him and reduced him to such a condition that appellant thought he was going to kill him, and that in order to protect his father he got the gun and shot.

In our opinion the grouping of facts as was done in the instant charge should be avoided, and an instruction should be given the jury in appropriate language upon the law of murder, of manslaughter, and defense of appellant’s father, in the terms of approved charges, in substance, that the killing if not in self-defense and not under circumstances reducing same to manslaughter, but if upon malice aforethought, would be murder; but if the jury believed from the evidence that the homicide was unlawful, but did not believe beyond a reasonable doubt that same was on malice aforethought, then they should consider whether same was manslaughter; which should be followed by full and apt instructions on the law of manslaughter containing, among other things, instructions that the jury might look to all the facts and circumstances in determining the adequacy of the cause.

On the issue of self-defense of himself or his father, in view of the fact that the state denies in toto any attack on the father of appellant by the deceased — and the defensive theory rested entirely upon the fact of such attack — the charge should be made to depend on the jury’s belief in this regard. If the homicide was to defend against an attack reasonably calculated to produce in the mind of appellant a fear and apprehension of the death or serious bodily injury of his father at the hands of the deceased, he' should be acquitted. If satisfied beyond a reasonable doubt that there was no such attack by deceased, the accused should not be acquitted on such ground.

The state’s theory of the case is that, regardless of what had preceded the immediate acts of appellant and deceased before they had gotten into the car, appellant attacked deceased while in said ear and killed him. If so and not in defense of his father, it would be murder or manslaughter. The defensive theory, regardless of what occurred before they got into the car, is that appellant shot to defend his father against a murderous attack by deceased. If the jury should believe this defensive theory supported by the testimony of appellant, his sister, and brother, they would likewise believe the same witnesses as to the antecedent happenings. This would apply to the jury’s belief of the state witness; if they believed her as to the fact that deceased made no attack upon appellant’s father, there would seem no doubt of their acceptance of her testimony as to the antecedent facts. Hence our statement that charges grouping such facts could but confuse the jury.

What we have here said is based oij the facts as they appeared on this trial. We do not attempt to lay down any rule applicable if it should be made to appear that deceased was trying only to release himself from unlawful restraint further than as below stated.

In view of another trial we call attention to the law of manslaughter as growing out of imperfect self-defense. Mr. Branch cites many authorities, in sections 1751 and 2008 of his Annotated P. C., which afford light on this proposition. If appellant and his father restrained and falsely imprisoned deceased by force o,r threats or the show of a weapon and thereby compelled him to submit to being tied and to agree that he might be carried to the county seat, even though their purpose was to do him no other injury or harm, such acts would be unlawful on their part. If the jury believed that, in an effort to obtain his release or freedom from such restraint and imprisonment, deceased made an assault upon •appellant’s father in which they believed that he used more force than was reasonably necessary to effect such release, and in response to which or in defense against which appellant took the life of the deceased, he might be guilty of no higher grade of offense than manslaughter.

If the state’s theory be true as made by its testimony and appellant shot and killed the deceased not in defense of his father and not under such circumstances as would reduce it to manslaughter, his offense would be murder.

For the errors above mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
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