
    ORANGE v. STATE.
    (No. 3408.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Criminal Law <©=>991 — Judgment—Punishment — Indeterminate Sentence.
    Where defendant was convicted of murder, the judgment should have been under the indeterminate sentence law, sentencing him to the penitentiary for not less than five years nor longer .than his natural life.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. <©=>091.]
    2. Criminal Law <@=>770 — Instructions — Affirmative Defense.
    A reliance on a plea of not guilty, and the fact that the state does not prove guilt beyond a reasonable doubt, does not call for any other or different affirmative charges than those on the presumption of innocence and reasonable doubt. It is only where the evidence presents an affirmative defense that an. affirmative charge to acquit, if the facts are consistent with defendant’s innocence, is called for.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. <@=>770.]
    3. Jury <@=>83 — Competency — Change op Opinion.
    A juror who, in answer to the question whether, after hearing the evidence and being of the opinion that defendant should be acquitted, the fact that the other 11 jurors were for conviction would or might cause him to change his opinion and lead him to an agreement, answered, “I don’t know; I cannot say; I am afraid and believe it might,” was not subject to challenge for cause.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 400, 402-404; Dec. Dig. &wkey;83.]
    Appeal from District Court, Lavaca County; M. Kennon, Judge.
    Victor Orange was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at life imprisonment in the penitentiary, and the court so passed sentence. The judgment under the verdict of the jury should have been adjudged under the indeterminate sentence law, and provided that appellant be confined in the penitentiary for a period of years not less than five nor longer than his natural life, and the judgment is so reformed, and the clerk of this court will enter the proper judgment, and certify it to the clerk of the trial court for observance.

The court gave a full, fair, and explicit charge on the law of circumstantial evidence. The charge itself is not complained of, but it is urged that in addition thereto the court should have also presented an affirmative charge:

“If from the circumstances introduced in evidence, such circumstances are consistent with the innocence of the defendant, you must acquit him, although you find that a hypothesis of guilt will account for all the circumstances proven.”

A reliance on a plea of not guilty, and the fact that the state has not proven the guilt beyond a reasonable doubt, does not call for any other or different affirmative charge than that presented by the charge on presumption of innocence and reasonable doubt. It is only where the evidence presents an affirmative defense that such a charge is called for.

The only other question presented is that the court erred in not sustaining appellant’s challenges for cause as to three of the veniremen. As Messrs. George Baur and E. Nalkemper did not serve on the jury, those two bills need not be discussed. The bill presenting the contended-for erroneous ruling as to Joe Murphy appears in a different light. Appellant, at the time the challenge for cause as to this juryman was presented, had exhausted all his peremptory challenges, and Mr. Murphy was sworn in and served as a juryman on the trial of the case, and if the challenge should have been sustained it would present such error as would necessitate a reversal of the case. Code Cr. Proc. 1911, art. 692, provides 14 grounds as challenges for cause. It is not contended that any of them exist, but it is admitted Mr. Murphy answered the questions presenting those grounds in a way that would render him a competent juror. The only complaint is that in answer to the question, if after hearing the evidence he was of the opinion the appellant should be acquitted, and the other 11 were of the opinion he was guilty, “if that fact would or might cause him [the juryman] to change your opinion as to the guilt, and lead you to agree with them in their conclusion?” The juryman answered: “I don’t know; I cannot say; I am afraid and believe it might.”

It is a matter of common knowledge, known to all mankind, that if any body of men hear the same matter, and 11 out of 12 come to the same conclusion, it ordinarily would have an influence on the twelfth man, if he was a well-balanced, reasonable man. If his opinion was firm and fixed, it might not cause him to change it, yet the mere fact that the other 11 had arrived at a different conclusion would necessarily, to some extent at least, have weight with him in reviewing the matters in his own mind, and the question propounded would elicit from a great majority of thinking citizens the answer, “It might do so,” and we all know and appreciate the fact that, if he did not so answer, such would in fact be true, unless a man was one of those who are unreasonable, hardheaded, or stubborn by nature. The jurymen are sent into the jury box to reflect over and study the testimony, and if they were to eternally stand by their first impressions there would be but few verdicts rendered by 12 men. The only question is: Was the juryman convinced of the guilt of the person at the time the verdict of guilty was rendered? If so, it reflects a true verdict. We cannot hope to exclude from the jury box all men who might be influenced by the views of their fellow man. If so, a jury would be difficult to obtain.

The judgment is affirmed. 
      <@=>I?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     