
    State v. Hargroves.
    
      (Nashville.
    
    February 21, 1900.)
    1. Self-defense. Ca/nnot be invoked, when.
    
    A party cannot avail himself of the plea of self-defense, even if he is without fault in the first difficulty, where he leaves the scene of that difficulty declaring his purpose to see his adversary later, and, deviating from the road to his own home, obtains a gun, and, with the declaration that he intends to kill somebody or get killed, returns and seeks his adversary and shoots him, while the latter was known to be unarmed, and was making no demonstration except to escape. (Post, pp. 113-116.)
    
    3. New Tbial. Not granted on affidavits, when.
    
    Affidavits to the effect that a witness examined on the trial of a murder case stated after the trial that he had not told all he knew, and that the deceased had stayed at his house on the night before the killing, and had said he intended .to get the defendant next day, afford no ground for new trial, where the witness himself or his affidavit is not introduced. (Post, p. 116.)
    
    3. Jury. Misconduct.
    
    The mere fact that the officer in charge of a jury in a felony casé left the premises temporarily where the jury were confined, affords no ground for new trial, where it does not appear that there was any separation of or communication with the jury during his absence, but it is shown, on the contrary, by affidavits of jurors, that they were confined in rooms whose doors and windows were reasonably secured and fastened, and at no time opened, and that, in fact, no separation of or communication with the jury occurred. (Post, pp. 116,117.)
    
    4. Evidence. EUcited by Court.
    
    It is not error for the trial Judge to ask, in a proper and impartial manner, questions calculated to bring out the facts of a transaction already inquired about, for the better information of himself and the jury. (Post, pp. 117, 118.)
    
    FROM LAWRENCE.
    Appeal in error from Circuit Court of Lawrence County. Robt. B. Williams, J.
    Attorney-general Picexe for State.
    J. B. Wagstaee for Hargroves.
   Wilees, J.

The defendant is convicted of murder in the second degree, and sentenced to the penitentiary for twenty years, and has appealed. It appears that he and deceased, Ogle, and a man named Bailey were together on Sunday morning drinking and playing craps. The defendant won $3.25 from Ogle, and $1.40 from Bailey, and then declined to play any further. Thereupon a quarrel ensued and some harsh words passed and demonstrations were made, which indicated that the other parties intended to do defendant violence, unless he gave up the money he had won from them. The result was that he did give it up, and, as he says, some of his own besides. The defendant’s version is that the other parties robbed him and drew a knife on him and attempted . to cut bim. Tbis is denied by Bailey and by Orten, another party wbo was present. We think that tbe defendant’s version of tbis matter is in tbe main correct, though exaggerated. After the quarrel was over and tbe money bad been given up, tbe defendant left and went down tbe ■ road, saying be would see them later. He was asked to wait, as tbe other parties were going tbe same direction, but be replied to them “to go to hell.” It seems that a shot or two was fired about tbis time. Defendant says they were at bim, but tbe proof on tbis point is quite indefinite.

He went down tbe road about a mile to Tom Kochell’s and tried to borrow a gun, but failed, and then went on a half mile farther to Granville Rochell’s and obtained bis double-barreled shotgun from bis wife, and some extra shells, saying be wanted to kill a mad dog and might miss tbe first shot. In going to Granville Bochell’s be passed by the road which led to bis own home, and after getting tbe gun be came back and again passed tbe same road to bis own home, some 250 or 300 yards, in order to meet tbe other parties. To several persons along tbe way he said be was going to kill somebody, or get killed. He also says that bis reason for passing bis road home was that tbe parties called bim, but in this be is not supported by any other witness. He also says as a reason for passing Ms road borne, that be was afraid tbe parties would pursue bim and kill bim in tbe presence of bis family. As be approached ,tbe parties, be presented his gun at first one aud then tbe other. Bailey asked if tbe matter could not be settled, and be replied it could, if Bailey and Ogle would each throw bim a dollar. They refused to do this, and an altercation ensued. In tbe course of this deceased said be was unarmed, and tbe defendant replied “be knew it, and was going to kill bim.” He was very mad, and highly excited, and drew bis gun on Ogle, and shot bim. It appears that Ogle, at tbe time be was' shot, was manifesting an intention to get over a fence and -retire.

Defendant says, however, that be put bis band on bis hip pocket, and made demonstrations as if to cut or shoot bim.

It appears that Ogle had no arms upon him unless it was a knife, and that is doubtful. After shooting Ogle, be reloaded tbe gun and the other parties fled.

Defendant’s contention is, that after tbe first difficulty be armed himself in self-defense, and that be shot defendant when be was making a demonstration as if to draw a pistol.

But it . is clear from tbe evidence in this case that defendant passed bis own road home and went to a neighbor’s' to get a gun, and after getting it, did not go borne, but again passed bis road home some 250 or 300 yards, ■ until be met these parties, and the • weight of the evidence is that he shot Ogle when he knew he was unarmed, and in his shirt sleeves, and without ■ any demonstration at the time, and in pursuance of previous threats.

He appears, from the record, to have sought his antagonist and brought on the second difficulty, when he might have gone on home after he armed himself, and protected himself at his own home.

There are some affidavits for a new trial, but they were not deemed sufficient by the trial Judge, and we think he was correct. The principal one is that one of the witnesses examined stated, after the trial, that he had not told all he knew, and that Ogle and Bailey had stayed at his house the night before the killing, and said they intended to get defendant out next day and “do him up.” The witness who it is said would so state was not brought back and examined, and the Court had no assurance he would so state on a new trial. Besides, it would not be material, in view of the fact that defendant brought on the second difficulty after he was free from the first one.

An effort is made to show misconduct on the part of the jury, or an opportunity for it. There is no proof or intimation that the jury separated, or that anybody communicated with them. They were confined in a room which had several doors and windows, which were reasonably secured and fastened, and were at no time opened, and three of the jurors testify that there was no communication with any of them, nor any improper conduct. It is shown that the officers were on the outside, and that they did leave the premises and go down into the town, but there is an absence of any proof that any communication was had, or anything improper occurred. We do not find anything to show improper conduct or tampering with the jury, but, on the contrary, it appears that there was no improper conduct or communication.

Objection was made to questions put by the trial Judge which served to bring out more fully, and in detail, the fact that defendant passed by his road home in going after the gun and in returning with it. This fact had been brought out by the district attorney • in the examination of defendant himself. This was very important, and we think the object of the trial Judge was to bring out more fully the facts about the localities.

The examination was intended to make more plain what had already appeared, and the trial Judge was not, as w^e think, Intending to indicate to the jury his impression, but rather to get the facts more clearly brought out for the information of the jury and of himself, and to give the defendant opportunity to give such explanation as he could.

We think, under the facts, that there is no reversible error in the record, and the judgment of the Court below is affirmed.  