
    ROWLEY v. STATE.
    (No. 10650.)
    Court of Criminal Appeals of Texas.
    Feb. 10, 1927.
    Rehearing Denied April 13, 1927.
    I. Criminal law <&wkey;925(l) — Juror’s request to outsider during deliberations to get his mail held not “misconduct,” warranting new trial.
    Conversation, in presence of officer in charge of jury, in which juror requested outsider, during deliberations on verdict, to go to post office and get juror’s mail, which he did, held not “misconduct” warranting new trial.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Misconduct.]
    
      2. Witnesses <&wkey;277(6) — Permitting prosecuting attorney to request defendant to read, on cross-examination, written statement by hiis son in his absence held not error.
    Permitting prosecuting attorney, on cross-, examination, to hand to defendant, and ask him to read, so that jury could not hear, a written .statement by defendant’s son in defendant’s absence, helé not error; jurors not being advised of its contents, and defendant’s counsel having right to question defendant on direct examination as to matters brought out on cross-examination.
    On Motion for Rehearing.
    3. Criminal law <&wkey;833 — Special charges must be given or refused in form requested.
    Special charges must be given or refused in the form in which they are presented.
    4. Homicide <&wkey;300( 14) — Instruction in murder trial to acquit, if deceased did act causing defendant, viewed from his standpoint, to believe his life in danger, held erroneous as omitting reference to what caused act.
    Part of special charge, in murder trial, to acquit, if deceased and another did act which, viewed from defendant’s standpoint, caused him to believe his life was in danger, helé properly refused as omitting reference to what brought about or caused such act, and placing no limitation on deceased’s conduct which may have brought about or caused act.
    5. Homicide <&wkey;300(3) — Defendant is not en-. titled to unqualified instruction that he had right to take deceased’s life because of attack ' or demonstration caused by his own conduct.
    While one may arm himself and seek an interview with another under some circumstances, he has no right so to conduct himself as to bring about difficulty or cause such other to make demonstration or attack on hiim, and then ask unqualified instruction in murder trial that he had right to take such other’s life because of such attack or demonstration.
    6. Homicide <&wkey;286(I) — Charge to acquit, If defendant entered building in which homicide occurred, without intent to produce difficulty, held properly refused.
    In murder trial, charge to acquit, if defendant entered building in which shooting occurred without intent to produce difficulty, was properly refused, as he may have changed his mind thereafter and been guilty of acts or conduct causing deceased to make attack.
    7. Homicide <&wkey;286(l) — Jury cannot be told to acquit on defendant’s intent at particular time before actual difficulty' leading to homicide.
    In murder trial, jury must look to whole facts surrounding difficulty in determining what caused it, and cannot be told to acquit on defendant’s intent at particular time before actual difficulty.
    Commissioner’s Decision.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Lewis E. Rowley was convicted of assault with intent to murder,- and he appeals.
    Affirmed.
    Howth, Adams & Hart, of Beaumont, and T. H. McGregor and A. L. Love, both of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State. '
    
   BETHEA, J.

The appellant was convicted of the offense of assault with intent to murder, and his punishment assessed at 15 years in the penitentiary.

The shooting, which resulted in the death of the deceased, Jack Gjertsen, arose over an argument concerning a labor or welding job the appellant had shortly before the difficulty performed at the instance and request of the deceased. After the work was done, the appellant presented a bill for about $60 on a time and material basis. The deceased and a witness by the name of Bell, who was working for deceased, insisted that the appellant had made a price on the job of $25 or $35. The contention of the state was that the appellant went to deceased’s place of business, and, after considerable argument over the account, drew his pistol and killed deceased without any provocation or excuse. The appellant defended on the ground of self-defense, testifying that the witness Bell and the deceased both were making an assault on him at the time he shot at the witness Bell and deceased.

The appellant requested three special charges, all of which were given by the court. The three special charges given cured all the exceptions and .objections to the court’s charge pointed out by the appellant.

Bill of exceptions No. 1 complains of the court’s refusal to give special charge No. 1. We are unable to agree with the appellant’s contention.

Special charge No. .3, requested by the appellant and given by the court, correctly presented the appellant’s theory as to the shooting, and did not in any way limit his right of self-defense. Said charge also instructed the jury that, if they believed from the evidence that .the witness Bell or the deceased, by reason of any act done on their part, viewed from the appellant’s standpoint, there was reasonably produced in his mind the fear of the loss of his life or any serious bodily injury to himself, and if while he was acting under such apprehension he shot and killed the deceased, he would not be guilty of murder or manslaughter, and would be entitled to be acquitted, even though the jury should find that he was not entirely free from blame or wrong in the transaction, or if they ha.d reasonable doubt on this issue they would give the appellant the benefit of such doubt and acquit him.

Bill of exceptions No. 2 complains at the action of the trial court in overruling appellant’s motion for a new trial on the grounds that the jury trying the case was guilty of misconduct, in that one of the jurors, while they were deliberating upon their verdict, carried on a conversation with some person whose name was unknown to the appellant. We have carefully reviewed the evidence submitted on the motion, and fail to see whbre the appellant was deprived of any valuable right or suffered' any injury. The misconduct of the jury complained of was that the juror Skipworth asked a Mr. Walker to go to the post office and get his mail, and the said Walker did so, and brought the mail to him. This conversation between the juror and Walker took place in the presence of the officer in charge of the jury.

Bill of exceptions No. 3 complains of the action of the trial court in permitting the prosecuting attorney on cross-examination of the appellant to hand the appellant a written statement made by the appellant’s son in the appellant’s absence, and ask the appellant to read such statement. Objection was made for the reason that the same was an ex parte statement made in appellant’s absence. Appellant was requested to read the statement, but not so that the jury could hear it, and, after the same had been read by the appellant, the county attorney asked him if the matter stated therein was true, and appellant answered, “No.” Further questions were then asked appellant by the prosecuting attorney. Said statement was not offered in evidence, nor were the jurors advised as to its contents.

We are unable to agree with appellant’s contention as set out in this bill. The appellant’s counsel had the right on redirect examination to question appellant as to the matters brought out by the state on cross-examination. It does not appear that the appellant made any request of the state to see said statement and to read the same. Had the appellant demanded the right to see the written statement and to read the same, and been refused that right, another question might have been before us for consideration. ’ -

The court in passing sentence, however, failed to recognize the statute with reference to the indeterminate sentence; the sentence being for 15 years. The sentence will be reformed so as to conform to the indeterminate sentence statute, and made to read that the punishment shall not be more than 15 years nor less than 2 years.

The facts are amply sufficient to support the verdict of the jury, and, there being no errors in the record, the judgment of the trial court is affirmed.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

L/ATTIMORE, J.

Appellant insists that his special charge No. 1 should have been given. We quote, same:

“You are further instructed that, if you believe from the evidence that the deceased and the defendant had a previous disagreement over the account claimed to be owing by the deceased to the defendant, and that prior to the homicide the deceased had threatened the defendant, or had made threatening gestures towards defendant, or had exhibited a knife, the defendant would not lose‘his right of self-defense by arming himself and seeking an interview with the deceased for the purpose of bringing about a peaceable adjustment of their affairs, and if the deceased and the witness Beil did some act which, viewed from the defendant’s standpoint, caused the defendant to believe that his life was in danger, or that he was about to suffer serious bodily injury at the hands of the deceased, or the witness Bell, and that he, so believing, shot and killed the deceased, or if you have a reasonable doubt upon this issue, then you will acquit the defendant.”

It is the rule that special charges must be given or refused in the form in which same are presented. Manifestly that part of this special charge which seeks to have the jury told that, “if the deceased and the witness Bell did.some act which, viewed from the defendant’s standpoint, caused the defendant to believe that his life was in danger, * * * you will acquit the defendant,” is wrong. This instructs an acquittal if deceased and Bell, in an effort to protect their own lives against an unlawful assault by appellant, had done something which caused appellant to think his own life in danger. Same entirely omits reference to what may have brought about or caused the supposed act of deceased and witness Bell; also fails to place any limitation upon the acts and conduct of appellant which may have brought about or caused the supposed act of deceased and Bell. While appellant would have the right, under some circumstances, to arm himself and seek an interview with deceased, he would have no right to then and there conduct himself in such manner as to bring about a difficulty, or cause the deceased to make a demonstration, or an attack upon him, and then have the jury told unqualifiedly that, because of such attack or demonstration on the part of deceased, appellant would have the right to take the life of deceased, and if he did so, he should be acquitted. We think the special charge correctly refused.

Substantially the same defect exists in special charge No. 3, which sought to have the jury instructed that, if they found and believed from the evidence that, at the time the defendant entered the building in which the shooting took place, “he did not Intend to produce thé occasion or difficulty between the deceased, the witness Bell and himself, and that by reason of some act then done on the part of the deceased, or the witness Bell, which, viewed from the defendant’s standpoint, reasonably produced in his mind fear of the loss of life, or serious bodily injury, etc., and that, acting under such apprehension, the defendant shot and killed the deceased, he would not be guilty of mur • der or manslaughter, but would be entitle*! to be acquitted; * * * or if you have a reasonable doubt on this issue, you will give the defendant the benefit of such doubt and acquit him.” Appellant’s guilt is not to be made to depend on his intent when he entered the shop of deceased. Regardless of such intention at that time, he may have changed his mind, and may have been guilty of such acts and conduct thereafter as caused the deceased to make an attack upon him, or as might have directly brought about the homicide. In other words, the jury must look to the whole facts surrounding the difficulty in determining what caused same, and cannot be told that they must acquit the defendant upon his intent at a particular time antecedent to the actual difficulty.

The motion for rehearing will be overruled. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      ^reFor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     