
    KNIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.)
    1. Criminal Law (§ 1092) — Appeal—Record-Filing.
    Where the statement of facts and bills of exception were not filed until 130 days after the entry of sentence at a term of court which continued more than 8 weeks, they could not be considered, though the trial court granted extensions of time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Criminal Law (§ 1097) — Appeal and Error — Statement of Facts — Review op Instructions.
    In the absence of a statement of facts, the Court of Criminal Appeals cannot review the sufficiency of the charge or the refusal of special charges; it being presumed, in such case, that the trial court Correctly charged all the law applicable to the evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2984, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    3. Homicide (§ 124) — Justifiable — Self-Defense.
    That one is armed with a gun when he goes upon premises in dispute does not impair his right of self-defense, if his adversary makes a demonstration which, in the light of previous events, leads him to believe that he is in danger of his life or of serious bodily harm; but, if no such demonstration is made, he has no right to kill, though his adversary wrongfully seeks to obtain and retain possession of the premises.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 184-188; Dec. Dig. § 124.]
    4. Criminal Law (§ 720) — Argument of Counsel.
    Prosecuting officers should keep within the record, and, in discussing the evidence, draw only legitimate deductions therefrom.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    5. Witnesses (§ 340) — Impeachment—Adultery.
    Evidence in a murder trial that a state’s witness had been divorced from her first husband for her adultery was properly excluded.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1116, 1117, 1119, 1121; Dec. Dig. § 340.]
    6. Jury (§ 66) — Selection.
    It is the policy of the law that jurors be drawn by commissioners, and not selected by the sheriff or any officer.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 283-290, 306; Dec. Dig. § 66.]
    7. Criminal Law (§ 1166%) — Appeal and Error — 'Verdict—Disqualification of Juror.
    Where a juror qualifies on his examination, and states that he has no opinion in the case and knows nothing of the facts, and it subsequently appears that he had expressed an opinion that the defendant should be hung, and where, during the deliberations of the jury, he states matters only in evidence at a former trial of the defendant, which he attended, and states that any one who has done as defendant has done should be hung, a verdict of manslaughter, fixing the highest sentence permitted by law, will be set aside, especially where it appears that this high penalty would not have been given by the jury but for the misconduct and preconceived opinion of the juror.
    [Ed. Note. — For other cases, see Criminal Law,. Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.
    Ike S. Knight was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Lattimore,r Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder. When tried, he was .convicted of manslaughter, and his punishment assessed at five years’ confinement in the penitentiary.

1. It appears by the record in this case that sentence was pronounced on defendant on January 27, 1911. It further appears that the term of court continued for more than 8 weeks, and that, under the provisions of the law relating to filing of statement of facts and bills of exception in courts where the term lasts longer than 8 weeks, the time for filing such papers begins to run from the time the court pronounces sentence on a defendant; that being the final judgment. In this case the bills of exception were not filed until the 6th day of June, 1911, and the statement of facts was not filed until the 26th of May, 1911. In courts where the term lasts longer than 8 weeks, the court is,powerless to grant more than 90 days in which to file such papers from and after the date of sentence; while in courts, not extending beyond 8 weeks, they may grant 90 days from the date of adjournment of court, but can grant no more time in which to file statement of facts and bills of exception in the trial court. In this case, there was an order granting 90 days, and then an order granting 90 days additional. This last order the court was without authority to grant. The bills of exception were not filed until 130 days after the entry of sentence, and were not even filed within 90 days after the adjournment of that term of court. Attorneys will please remember that when a term of court continues in session more than 8 weeks, the time begins to run from the date sentence is pronounced, that being the final judgment; while in courts whose terms are less than 8 weeks the time begins to run at the date of adjournment. The Legislature has made this distinction, and we have no authority to disregard such regulations. Therefore the statement of facts and bills of exception, hot having been filed within the time fixed by law, cannot be considered.

In this condition of the record, we cannot consider the questions raised by the bills of exception, nor can we consider the assignments relating to the charge ■ of the court, nor the refusal to give the special charges; for, in the absence of a statement of facts, we presume the court charged the law and all the law applicable to the evidence. However, while we cannot consider the statement of facts in passing on the case, yet we have read it, and, as this-case will be reversed on another ground, under the evidence, the defendant would have the right to go to the house, and would have the right to carry a gun with him, and these rights the court should fully protect in his charge; and the fact that he carries this gun home with him would not impair his right of self-defense, if deceased, just before or at the time the first shot was fired, made a demonstration which, in the light of previous events, led defendant to believe that deceased was then and there about to kill him, or do him .serious bodily injury. On the other hand, if deceased was not making a demonstration or doing an act which would lead defendant to believe his life was in danger, he would not have the right to kill him, even though deceased had wrongfully sought to obtain and retain possession of the premises.

2. And we would also say that prosecuting officers should always keep within the record, and discuss the evidence, and draw only legitimate deductions therefrom. A number of the bills relate to exceptions to remarks of counsel, and some of the bills present remarks that should not have been made.

In view of another trial, we will say that the court did not err in excluding evidence that a state’s witness had been divorced from her first husband on the ground that she had been guilty of adultery.

3. As before stated, in making these general remarks, we are not undertaking to pass on the various assignments in detail, nor can we pass on the one relating to the drawing of the jury, but think it not improper to remark that it is the policy of our law that jurymen be drawn by commissioners, and not selected by the sheriff or any officer; that the jury wheel law was passed that jurymen drawn on each and every case might be secured in a way that no person could control their selection; and it is the part of wisdom to follow the mandates of the law, and let jurymen be selected in a way therein provided. No course should be adopted or followed that would result in juries being otherwise selected.

4. The matter that presents reversible error is that one of the jurymen, Mr. O. H. Rowleter, on his examination qualified, stating he had no opinion in the case and did not know anything about the facts. One of the jurymen swears that while they were deliberating on the ease Mr. Rowleter stated he had attended a former trial of Ike S. Knight, and any man that would go home and pour the money into the lap of such an old hag as that was ought to be hung; that it seemed funny to him that defendant did not know to whom this property belonged when he went to pay the taxes; that said juror also stated to the jury there present that defendant, Ike S: Knight, had shot .a man by the name of Montgomery Howell; that defendant had shot one of the man’s legs off. Mr. Whitley testified that, prior to being selected on the jury, this juror had stated, in conversation, while discussing this former trial, “If he had been on the jury, he would have broke his darn neck,” and stated that “any man who would live with the parties that he was living with needed his neck broke.” Mr. Riley also states that 11 of the jurors were for a low sentence, and the juryman Rowleter was for a higher sentenceand the sentence given defendant is the highest known to the law for the offense of which he was convicted. It is thus seen that facts were related by the jurymen that were not in evidence,' the shooting of two other men, and other facts; and, if the witnesses are to be believed, the juryman had heard the evidence on the former trial, and then had formed and expressed an opinion that defendant ought to have had his neck broken. In the record before us, these facts are not disputed nor questioned; consequently we-are of the opinion that defendant has not had a fair and impartial trial, guaranteed to him under our laws. Guilty he may be" —this fact we are not passing on — and without these remarks he, perhaps, would have been found guilty of the same offense .of which he was convicted; but it is manifest he would not have received the same high penalty for this offense that he did receive, if it had not been for the misconduct of this juryman and his preconceived opinion.

The judgment is reversed, and the cause is remanded.  