
    JORDAN v. STATE.
    (No. 10155.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    1. Homicide <&wkey;300 (3) — Refusal to instruct that one attacked at night may rely on presumption that aggressor is armed and intends serious injury held not error.
    In prosecution for homicide, refusal of charges that one attacked at night has right to presume that aggressor is armed and means to inflict serious bodily injury, and has right to' rely on such presumption in repelling attack, held not error.
    2. Homicide <§=>293 — Refusal to instruct, that if person other than defendant, with whom defendant did not act, killed deceased, to acquit held not error under evidence.
    Where evidence did not raise issue that deceased met death at hands of person other than defendant or his brother, refusal to instruct that if defendant’s brother or some other person killed deceased, and if defendant did not act with them or him, to acquit, held not error.
    3. Criminal iaw <&wkey;829(20)— Refusal of special charge relative to deceased’s acting as principal, covered by general charge, held not error.
    In prosecution for killing, refusal of special charge relative to deceased’s acting as principal in affray, covered by court’s general charge, was not error.
    4. Criminal law <&wkey;8l5(5) — Refusing instruction to acquit if defendant tried to separate parties, ignoring defendant’s acts after entering fight and evidence that defendant killed deceased, held not error.
    Refusal of charge that if defendant entered affray to separate parties, to acquit him, which did not take into account his acts after entering affray and state’s evidence affirmatively showing that he cut and killed deceased, held not error.
    5. Crimina! law <&wkey;763, 764(8) — Refusal to charge undisputed evidence showed defendant did not act with brother in killing, and, if there was reasonable doubt whether defendant killed, to acquit, held proper.
    In prosecution for murder, special charge that undisputed evidence showed defendant was not acting with his brother in killing, and, that if jury had reasonable doubt as to whether defendant did killing, to acquit him was on weight of testimony and was properly refused.
    
      6. Homicide <§=>301 — Refusal of charge based on defendant’s acting to defend brother, not raised by defense, held not error.
    In prosecution for murder, in •which defendant maintained that he was attempting to separate his brother and deceased, refusal of special charge that if defendant entered affray to assist his brother, not knowing that brother was about to cut and kill deceased, to acquit was not error, in view of fact that court’s main charge covered all phases of defendant’s right to defend brother raised by testimony.
    7. Criminal law <§==>829 (4) —Refusal to instruct that danger need not be actual to authorize defendant to defend brother held proper, in view of general charge’.
    In prosecution for murder, where defendant testified that he did not see weapon of any kind in hands of deceased during fight or before, refusal of special charge that to authorize defendant to defend brother against unlawful attack by deceased danger need not have been real or actual was not error, in view of general charge covering issues of self-defense raised by evidence.
    8. Homicide <§=>286(1) — Refusal of charge on intent in killing, not applying law to facts, held proper.
    In prosecution for murder, refusal of special charge on intent, which was abstract proposition of law not attempting to apply law to facts in case, was proper.
    9. Criminal law <§=>829(4) — Refusal of special charge as to defendant’s right to defend brother, covered by general charge, held not error.
    In prosecution for murder, refusal of special charge that if defendant killed with knife, when it reasonably appeared to- him that deceased had made or was about to make unlawful assault on defendant’s brother which might result in death or serious bodily injury, to acquit, was not error in view of fact that general charge covered such phase of case.
    10. Homicide <§=>169(7) — Excluding testimony that prior to homicide defendant said he did not have knife held not error, under circumstances.
    In prosecution for murder by stabbing, exclusion of evidence that on evening prior to homicide witness heard defendant say he did not have knife, in view of court’s qualifications of bill of exceptions that witness testified he did not know whether defendant was present at such time, but that he was somewhere close around, and that such testimony was remote and hearsay was not error.
    11. Criminal law <§=>730(1) — Stating that defendant’s brother at time of killing was taking drunken sister home, withdrawn from jury, held not reversible error.
    In prosecution for murder, district attorney’s statement in opening argument in which he stated that defendant’s older brother was not present at killing but had gone to take his sister, who was drunk, home, withdrawn by court from jury with instruction not to consider it, did not constitute reversible error.
    12. Criminal law <§=>730 (!"5) — Attorney’s calling defendant assassin, wtihdrawn by court, held not reversible error.
    In prosecution for murder, statement of private prosecuting attorney in argument calling defendant assassin, withdrawn by court from jury with instruction not to consider it, held, not reversible error.
    13. Criminal.law <§=>368(3) — Statement by defendant’s brother, whom defendant claimed to have defended, immediately after killing held admissible as res gestee.
    In prosecution for murder defended on ground of defense of younger brother, admitting statement by younger brother immediately- after killing, “Come on and let’s go; it’s just another dead son of a bitch,” as part of res gestae was not error.
    14. Criminal law <§=>854(9) — In prosecution for murder, jurors’ leaving room to escape tobacco fumes held not to constitute “misconduct.”
    In prosecution for murder, fact that one juror walked to door of barber shop to escape tobacco fumes, and that later, when jury was in two adjoining rooms assigned to them, two jurors stepped into one room in which other jurors were not present to avoid smoke, did not constitute “misconduct.”
    [Ed. Note. — "For other definitions, see "Words and Phrases, First and Second Series, Misconduct.]
    15. Criminal law <©=>857(2) — In prosecution for murder, juror’s statement in jury room, based on testimony, that defendant’s sisters were crooked held not reversible error.
    In prosecution for murder, statement by juror in jury room, based on testimony, that defendant’s sisters were crooked held not to constitute reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Angelina County; C. A. Hodges, Judge.
    Tommie Jordan was convicted of manslaughter, and he appeals.
    Affirmed.
    W. S. Poston and Tom F. Coieman, both of Lufkin, for appellant.
    Sam D. x Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of manslaughter, and his punishment assessed at 2 years in the penitentiary.

It appears from the record that the appellant' was indicted for unlawfully killing Hubert Sanders with malice aforethought, on or about April -11, 1925, by stabbing him " with a knife. It was the'contention of the state, and evidence was introduced in support thereof, that the appellant, his brother, Rufus Jordan, and the deceased had attended, a dance on the night of the homicide; that when the dance was over and the parties were leaving for their homes, Rufus Jordan became enraged at the deceased and cursed and abused him, calling him “a son of a bitch”; and that deceased, after requesting the said Rufus Jordan to desist without avail, slapped or struck him with his hand, Whereupon the appellant, who was standing near and slightly to the rear of deceased, stabbed him in the neck, severing his jugular vein, and causing his death immediately thereafter.

The appellant contended that the cause of of the trouble between his brother and deceased was a very undignified remark made by the latter .to their sister upon her refusal to permit him to accompany her home. Rufus Jordan told deceased that “no one but a son of a bitch” would talk to his sister that way, which was followed by harsh words between the two parties -until the deceased struck Rufus with his hand. The appellant testified that at this point he caught hold of deceased and pulled him back with the sole intention of preventing a fight, and denied cutting deceased with a knife or seeing his brother do so.

The record discloses that Rufus Jordan was also charged with killing deceased, but that the indictment against him was dismissed because he was a juvenile.

The record contains 19 bills of exception.

In bills'1 and 7 complaint is made to the refusal of the court to give to the jury appellant’s special charges to the effect that where one is attacked at night he has a right to presume that the aggressor is armed and means to inflict upon the person attacked serious bodily injury, and that the party attacked has a right to rely on these presumptions in repelling the attack. We are of the opinion that the court committed no error in refusing these special charges.

Bill of exception No. 2 complains of the refusal of the court to give to the jury appellant’s special charge to the effect that if they believed that Rufus Jordan or some other person killed the deceased, and that the appellant did not act together with such person or persons, to acquit him. There was no error in the refusal of this charge, since the evidence did not raise the issue that the deceased met his death at the hands of some person other than appellant or Rufus Jordan.

The refusal of the court to give special charge No. 3, relative to deceased acting as a principal in the. affray, as set out in bill of exception No. 3, shows no error, as the court’s general charge covered this phase of the case.

In bill No. 4 complaint is made to the refusal of the court to give appellant’s special charge No. 4, to the effect that if the jury believed that the appellant entered into the fight or affray in an effort to separate the parties, to acquit him. The refusal of this cha.rge was not error, in view of the fact that this charge did not take into account - the acts of the appellant thereafter, the evidence of the state showing affirmatively that appellant cut and killed the deceased.

In bill 6 complaint is made to the refusal of the court to submit to the jury appellant’s special charge No. 6 on manslaughter. This issue passes out of the case by reason of the fact that the verdict of the jury found appellant guilty of manslaughter.

Bill No. 6 complains of the refusal of the court to give to the jury appellant’s special charge to the effect that the undisputed evidence in the case showed that the appellant was not acting with his brother, Rufus Jordan, in the commission of the offense, and that if they had a reasonable doubt as to whether appellant did the killing, to acquit him. This charge was upon the weight of the testimony and was properly refused by the court.

In bill No. 8 complaint is made to the refusal of the court to give appellant’s special charge,- to the effect that if the jury believed that appellant, upon seeing an attack being made upon his brother, entered into the affray merely for the purpose of assisting his brother, not _ knowing that his brother was about to cut and kill deceased, to acquit him. The court committed no error in refusing to give this charge, for the reason that the appellant’s defense did not raise this issue. On the contrary, the appellant contended that he was merely attempting to separate the parties, and not that he. entered the fight in defense of his brother. The court’s main charge covered all the phases of appellant’s right to defend his brother raised by the testimony.

In bill 9 complaint is made to the refusal of the court to give to the jury appellant’s special charge to the effect that, in order to authorize appellant to defend his brother against an unlawful attack threatening serious bodily injury or death, the danger need not have been real or actual, but that under the circumstances appellant would have had such right whether the danger was real or apparent. This issue as to apparent danger was not raised by the evidence. The appellant testified that he did not see a weapon of any kind in the hands of deceased during the fight or before, and the court’s general charge covered such issues on self-defense as were raised by the evidence.

Bill 10 complains of the refusal of the court to give appellant’s special charge on intent. This charge is merely a meager abstract proposition of law, and does not attempt to apply the law to any facts in the ease, and, if given, would have been confusing to the jury. There was no error in the court’s refusal to give this charge.

In bill Nó. 11 complaint is made to the refusal of the court to give to the jury appellant’s special charge to the effect that if the appellant cut and killed deceased with a knife, but that if at the time he did so it reasonably appeared to him that the deceased had made or was about to make an unlawful assault upon his brother which might result in death or serious bodily injury, the appellant would be entitled to an acquittal. The court fully covered this phase of the case in his general charge and committed no error in refusing this special charge.

Bill No. 12 complains of the court’s charge on principals. We are of the opinion that this criticism is not well founded.

In bill 13 complaint is made to the refusal of the court to permit appellant to prove by Charley Bonner that on the evening prior to the homicide he heard the appellant say that he did not have a knife. This bill is qualified by the court to the' effect that the witness testified that he did not know whether the appellant was present at the time inquired about or not, but that he was somewhere close around, and to the further effect that said testimony was remote and hearsay. This bill, as presented, shows no error.

In bill 14 complaint is made to the opening argument of the district attorney, in which he stated that the older brother of appellant was not present at the difficulty but had gone home to take his sister, who was drunk, and to the closing argument of the private prosecuting attorney, Fairchild, in which he called appellant an assassin. The court withdrew these statements from the jury and instructed them not to consider same. These bills show no reversible error.

Bill 15 complains of the action of the court in permitting the state to prove by the witnesses Havard and Gann that Rufus Jordan, after the fight, stated, “Come on and let’s go; it’s just another dead son of a bitch.” The appellant contends that this statement was made after the difficulty, and that there was no evidence showing a conspiracy between Rufus Jordan and himself. The court, in qualifying this bill, states that the testimony was admitted as a part of the res gestas, that the statement was made at the scene of the homicide while all of the parties, including the appellant, were there, and that it was part of the main transaction and made just before the appellant and Rufus Jordan and the other members of the family left the scene of the homicide in their car. This bill, as presented, shows no error.

Bill No. 16 complains of the alleged separation of the jury and of a statement made in the jury room relative to appellant’s sisters being “crooked.” The evidence on motion for new trial showed that while the jurors were in the barber shop shaving themselves, the juror Barnes walked to the door of the shop in order to escape the tobacco fumes, which were distasteful to him; and that, while the jurors were deliberating upon their verdict in one of the two adjoining rooms assigned to them, most of them smoking at the time, the jurors Barnes and Noble stepped into the other room in order to get away from the smoke. We are of the opinion that this evidence fails to show a separation of the jurors, or any injury resulting to appellant by reason thereof. The statement made in the jury room relative to appellant’s sisters seems to have been the jury’s argument based upon the testimony introduced on the trial, and not made by any juror as a statement of fact. We are of the opinion that this bill of exception shows no error. Jack v. State, 20 Tex. App. 656.

What we have said in discussing bill 9 is applicable to bill 17.

Bill 18 complains of the court’s charge on the law of principals, it being contended that same was upon the weight of .the testimony. We are not in accord with this contention.

In bill of exception 19 complaint is made to the charge of the court on the law of manslaughter. The jury having found appellant guilty of manslaughter, this issue passes out of the ease.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM. 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. 
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