
    DENNIS v. STATE.
    (No. 9513.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    State’s Rehearing Denied Oct. 21, 1925.)
    1. Jury <&wkey;I3I (4) — Questioning jurors as to capital cases wherein they had previously served should have been allowed.
    In a prosecution for murder, question to jurors as to what capital cases they had previously served in as jurors should have been permitted to aid defendant in determining whether he would use his peremptory challenges.
    2. Jury <&wkey;l3l (4) — Great latitude in examining jurors allowed to determine whether peremptory challenge should be used.
    Great latitude, should be allowed party in examining jurors for the purpose of determining whether or not he would exercise his peremptory challenges.
    3. Homicide ¡&wkey; 187 — Permitting question to accused, why he did not go where his wife was when difficulty occurred, erroneous as burdening defense with question of retreat.
    In a prosecution for murder, permitting the state to ask accused while on witness stand why he did not go to where his wife was when difficulty occurred was erroneous as placing upon him the burden to retreat in order tó avoid necessity of killing his assailant.
    4. Homicide <&wkey;l23 — Under evidence, it was right of accused to protect his household, where it reasonably appeared to accused from act of deceased and companions that bodily harm to himself and household was intended.
    In a prosecution for murder, where deceased and armed companions went to house of accused, keW, that under the evidence it was right of accused to protect his household, where it reasonably appeared to him from acts of deceased and companions that bodily harm to himself and household was intended.
    On State’s Motion for Rehearing.
    5. Homicide <&wkey;l69(8) — Admission of testimony as to deceased’s statements before coming to accused’s home erroneous as burdening defendant’s right to defend home with motives, intent, and purposes of parties he was not aware of.
    In prosecution for murder, held, under the evidence, that the admission of testimony as to statements made by deceased to members of party before they came to household of accused was erroneous as burdening defendant’s right to self-defense and right to defend home, with motives, intent, and purposes of parties of. which accused had no knowledge.
    6. Homicide &wkey;>169 (9) — 'Testimony as to conversation in presence of accused properly ad- ' mitted.
    In a prosecution for murder in which it was shown that accused, while in his home, shot member of party who had declared that , they came to get a negro woman there,- the admission of testimony of a white witness with respect to her conversation with the negro woman in presence of accused, in which the negro-woman sauced witness, was proper as furnishing explanation of action of deceased, though it was disputed whether accused heard it.
    7. Homicide <&wkey;286(I) — Evidence held to warrant instruction under Code with reference to presumption arising from use of weapons.
    In a prosecution for murder, where deceased, constable, and armed companions went to.house of accused, keM, that under the evidence an instruction under Pen. Code 1911, art. 1106, with respect to presumption of intent to inflict injury, was warranted.
    Commissioners’ Decision.
    Appeal from Dictrict Court, Nacogdoches County; C. A. Hodges, Judge.
    Louis Dennis was convicted of murder, and he appeals.
    Reversed and remanded for new trial.
    
      Seale & Denman, of Nacogdoches, for appellant.
    Adams & Moore, Private Prosecutors, of Nacogdoches, and Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Nacogdoches county of the oifense of murder and his punishment assessed at confinement in the penitentiary for a term of 20 years.

The state’s testimony shows that George Teagle and his wife, Em Teagle, are negroes and that they were making a crop on the place of a Mrs. Smith, a white woman, in Nacogdoches county, and that on the afternoon before the killing occurred that night, Mrs. Smith had a conversation with Em Teagle which is alleged to have occurred in the presence of the appellant. We quote the following as Mrs. Smith’s version of this conversation:

“When I went up and talked to Em, Buster or Louis Dennis could hear it. I just went to the house and asked her if the children were there eating dinner, and to put them back in the field and pick cotton; and she said she wasn’t going tó do it; that she didn’t have to do it; that she had done said what she was going to do, and she didn’t have to do it and she would do as she pleased; and she was saucy along with it. Her language was rough. She just said ‘No damn white trash couldn’t make her do anything., * * * I afterwards saw Mr. Wynne and had a conversation with him.”

After this conversation, it seems that the negro woman Em Teagle, the appellant, and possibly some other negroes left the place and went across the river into San Augustine county. The Mr. Wynne referred to was the party killed that night, and he was at that time constable of the precinct and seemed to have been employed by Mrs. Smith to look after the hands in gathering the crops. After the conversation between Mr. Wynne and Mrs. Smith, Mr. Wynne, the deceased, seems to have enlisted the aid of other parties, and some four of them armed themselves, two having shotguns and two having pistols, and six of them went to the crossing on the river where it was assumed that Em Teagle and the appellant and the other negroes would come back into Nacogdoches county during the night. For some reason, appellant and Em Teagle and the others did not cross the river at the bridge where deceased and his party were waiting for them. Deceased and his party remained at the river until about 9:30 o’clock and proceeded from there to the home of the appellant. Upon reaching the home of the appellant, the facts show that some of the six men went in the house and had á brief conversation with the appellant, asking him if Em Teagle was there, and to this question he answered in the negative. These parties then • went back to the car where the deceased was and reported to him, and he got out of the car, and several of the other parties got out of the car, and some of them went to one part of the house and some to another, and according to the state’s witness Bluford Menefee, the deceased walked in the house, went in the hall, knocked on the door where appellant was in bed with his wife and where the negro woman Em Teagle and a baby girl of the appellant were sleeping in another bed, and when he knocked on the door said:

“Cap, this is the constable. Get up and light a lamp. We want to get old Em. We are not going to bother any of you, any of you folks.”

And the appellant got up, but did not light a lamp, and they lit a lamp across the hall in the other room, and the deceased told them that he did not want to look in that room but in the other room, and they never did light a lamp in the other room; and the negroes were heard moving around in that room, and Mr. Wynne knocked on the door again, like ordinary knocking on the door, and the door flew open, and deceased was shot.

It was appellant’s version of the affair that these parties went to his house about 11 o’clock at night, and that each of them was unknown to him, and that one of the parties kicked the door open, and the shot was fired by appellant in the direction of where the door was kicked and the deceased was killed.

There is no suggestion in this record that the deceased had any warrant of arrest or other papers of any character authorizing him to arrest any party in appellant’s home or to search the house for any purposé. On the contrary, the record affirmatively discloses the fact that deceased and his party were naked trespassers who, in the quiet hours of the night when appellant was at home in bed with his wife, invaded his home, and after being informed that the party for whom they were looking was not at his home, insisted on going through his house with the positive declaration that they wanted to get old Em.

It was also in evidence from the sheriff of Nacogdoches county, and from members of the grand juryj that various members of the party who were with the deceased that night had made the statement on various occasions that deceased kicked the door before the shot was fired.

Appellant assigns various errors, but in the view we take of the cáse it is not necessary to discuss many of them. By proper bill of exceptions, the appellant shows that two of the veniremen, while being examined on their voir dire, stated that they had sat on juries in capital cases prior to this case in the district court of Nacogdoches county. Whereupon the defendant in order to test their qualification as jurors, and in order to determine whether or not he should use Us peremptory challenge on said jurors, asked them what capital, cases they had heretofore served as jurors on in said county, and the trial court refused to allow appellant to ask these jurors that question. This action of the court we think was error. A peremptory challenge is a right given by law to the appellant under which he may excuse, for any reason sufficient to him, any member of the venire called to try his case. The peremptory challenge therefore partakes of the nature of a valuable right granted by the state. Under it he may challenge for any reason deemed sufficient by him, or he may not exercise the challenge at all, if to his mind it seems best not to do so. Under these circumstances, it is apparent that great latitude should be allowed a party in examining veniremen in order that he may determine in his own mind whether or not he desires to have said' veniremen serve on his jury. Moore v. State, 98 Tex. Cr. R. 162, 265 S. W. 385; Belcher v. State, 96 Tex. Cr. R. 382, 257 S. W. 1097; Welk v. State, 96 Tex. Cr. R. 373, 257 S. W. 1098; Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Bennett v. State, 97 Tex. Cr. R. 459, 261 S. W. 1036; Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 793.

The information which appellant sought from these veniremen, for ought we can say, might have been well calculated to have enabled him to have intelligently exercised his peremptory challenge. Various things might have entered into the trial of a former case that would have enabled the appellant to have intelligently passed upon the desirability of the jurors in the instant case. We think under the authorities above cited, under the facts of this case, that the appellant was entitled to elicit the information sought by th.e question, and that the trial court was in error in refusing to permit the question to be asked; but as the bill does not show that appellant exhausted his challenges or that any injury occurred by reason of the refusal to permit the question, we would not reverse on account of this error.

Complaint is made at the court’s action in permitting the state to prove by the witness Harrell that the deceased was looking for Em Teagle when they went to the home of appellant. This testimony should have been excluded. Appellant could not be bound by the motive, intent, and purpose of the parties in going to his house at night armed with shotguns and pistols, when he was not aware of such motive, intent, and purpose. Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 484; Bowen v. State, 47 Tex. Cr. R. 146, 82 S. W. 520; Tillman v. State, 51 Tex. Cr. R. 202, 101 S. W. 210; Patterson v. State (Tex. Cr. App.) 60 S. W. 559; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120.

Complaint is made at the court’s action in permitting the witness Mrs. Smith to testify to the conversation she had with the woman Em Teagle in the presence of the appellant, and in permitting her to detail said conversation and to testify that the Teagle woman was saucy to her at that time. This testimony could serve no purpose in the case except to engender race prejudice and inflame the minds of the jury against the appellant. The record affirmatively shows that appellant was nothing more than a mere bystander at the time of this conversation, that he was not spoken to or in any manner drawn into the conversation by either of the parties to it, and nothing is disclosed by the conversation that would in any manner have warranted his taking part therein. It is also true that the conversation was not admissible because it was irrelevant and immaterial to any issue involved in this case. Just how the fact that the Teagle woman sauced Mrs. Smith would in any manner justify a party of six men arming themselves and going at night to the appellant’s home and demanding the right to invade it and search it for this Teagle woman is not disclosed by this record.

Appellant also complains at the court’s action in permitting the state to ask the appellant, while a witness in his own behalf, why he did not go where his wife was when the difficulty occurred. It is appellant’s contention that this was tantamount to allowing the state to ask the appellant why he did not retreat. We think appellant’s contention in this respect is correct. The law does not place the duty or the burden upon a citizen of Texas to retreat in order to avoid the necessity of killing his assailant. Many authorities will be found among the reports of this court upholding this principle; then if he is not required to retreat, it follows that the state would not be authorized to prove by him that he failed to retreat and to use this as a circumstance to impinge upon his perfect right of self-defense.

• Appellant also contends that the court should have charged article 1106 of the P. C. in this case. The evidence as detailed above shows that the deceased and the posse with him went to the defendant’s home at night, and the defendant’s testimony and that of his witnesses show' that the deceased and those with him came into his house armed with shotguns and pistols and that the defendant saw them coming in thus armed. The record further discloses that they came into his house and demanded that he light a lamp and advised him that they were there for the purpose of getting old Em, who was at the time a guest in his house. And the testimony further clearly, at least from the defendant’s standpoint, shows that the deceased demanded that the door to defendant’s bedroom be opened, and upon appellant’s refusing to open it that he kicked the door. It is further in evidence from one of the state’s witnesses that a- small pistol was lying under or beside deceaséd when he fell. Under these circumstances, we think it clear that article 1106 of the P. 0. should have been charged. As supporting this contention, appellant cites the following cases, which we think sustain his contention: McMichael v. State, 49 Tex. Cr. R. 422, 93 S. W. 723; Scott v. State, 10 Tex. App. 112; Ward v. State, 30 Tex. App. 687, 18 S. W. 793; Hall v. State, 43 Tex. Cr. R. 479, 68 S. W. 783; Newman v. State, 58 Tex. Cr. R. 443, 126 S. W. 578.

It was clearly the right of the appellant to protect himself and those of his household against any act of the deceased, and those áceompanying him, from which it reasonably appeared to the appellant that it was the purpose and intent of such persons, or either of them, to commit murder or to inflict serious bodily injury on the appellant or some member of his household. Viewing this case from all the facts developed, if is difficult to see how any impartial mind can reach the conclusion that it did not appear to the appellant, viewed from his standpoint, at least, that the deceased and those with him were about to kill the defendant or some other person with the defendant, or to do them some serious bodily injury; and on the testimony adduced on the trial we would be very reluctant to hold that the facts are sufficient to show an offense.

For the errors above mentioned, it is our opinion that the judgment should be reversed and the cause remanded.

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.

On State’s Motion for Rehearing.

MORROW, P. J.

According to the evidence, Eta. Teagle, a negro woman and wife of George Teagle, a neighbor of the appellant, used in the hearing of the appellant some impudent language to Mrs. Smith, a white woman. The deceased, Wynne, was a constable of the precinct and an advisor of Mrs. Smith. Circumstances suggest that the incident was reported to Wynne by Mrs. Smith. Wynne gathered a company of four men, besides himself, and, after going to the home of George Teagle and taking therefrom the guns that were found upon the premises, went at night to the home of the appellant after he and his family had retired, for the purpose of arresting Em Teagle. No complaint had been filed against her, and in the possession of the officers was no process for her arrest and no search warrant. She was chargeable with no offense save that growing out of the alleged impudence to Mrs. Smith, the occurrence of which was a controverted issue. The appellant, when called out of his bed, denied that Em Teagle was in his house. This was controverted. As a matter of fact, she and her baby were there; also appellant’s wife. The deceased and his companions insisted that the woman Em Teagle was in the house and demanded that it be searched. At least two members of the party had pistols in their possession. There were guns in the car which, according to the appellant, were in possession of the parties who were demanding admission to his residence. While the deceased, was at the door which was opened, a shot was fired by the appellant from inside the house, and the deceased was killed.

The state’s witnesses claim that the deceased did not open the door, but merely knocked upon it. Appellant’s testimony was to the effect that the deceased kicked the door open. Upon that issue the state’s witnesses were impeached by contradictory statements testified to by the sheriff, by members of the grand jury, and others. Appellant, in his testimony, disclaimed knowledge of the identity of the parties, and said that they did not ask for Em Teagle but for George Teagle, her husband. D'uring the transaction, appellant’s wife became very much excited and alarmed and expressed fears of death at the hands of the parties who were on the premises.

The offense, if any, against Em Teagle, was a trivial one. The conduct of the constable and others seems out of harmony with the mission on which it is claimed they were engaged. Their manner, their arms, and their attitude, even from the state’s testimony, were calculated to alarm the appellant and his family and to put them in fear of injury. Even if the purpose of the posse was to make an arrest of the negro woman, we are aware of no law which, for the alleged offense, would have justified the manner in which it was undertaken; nor, under the circumstances, the making of the arrest without process. The appellant’s act, whether viewed from his standpoint or that of the state, was within his rights in denying admission to his house. He testified that the posse did not announce their purpose nor declare that they were officers, and that these facts were unknown to him.

In this state of the record, the statements of Wynne to. the witness Harrell before they came to the appellant’s home were manifestly improperly received. The law authorized him to act upon the facts within his knowledge. There is no testimony and no contention that he heard or was in a position to hear Wynne tell Harrell that he was going to the appellant’s home to make an arrest of Em Teagle. In holding this testimony improper and under the facts of the case prejudicial, this court, in the original opinion, announced, we think,- a correct legal proposition supported by sound reason and numerous precedents. That principle is that one acting in the defense of his person or his home is not to be affected by the motives of others unknown and undisclosed to him. This is announced in terse and pertinent language by Presiding Judge White of this court in Brumley’s Case, 21 Tex. App. 240, 17 S. W. 140, 57 Am. Rep. 612, in which are cited both judicial decisions and text-writers. This principle has been adhered to by this court, so far as we are aware, without departure, as is illustrated by many decisions collated by Mr. Branch in his Ann. Tex. P. C. § 1930.

Upon reflection, it is believed that the testimony of Mrs. Smith to the effect that Em Teagle made to her, within the hearing of the appellant, the remarks which Mrs. Smith imputed to Em Teagle, as set out in the original opinion, were not improperly received in evidence. That the remarks were made within the hearing of the appellant, it is true, was controverted; but if the jury believed that he did hear them, they might have been regarded as furnishing some explanation to the appellant of the conduct of the deceased immediately before he was killed.

According to the appellant’s testimony, all members of the posse were armed. The state’s evidence is aflirmative to the effect that the deceased and one other were armed with pistols, and to the effect that in the automobile some 40 feet from the appellant’s house there were several shotguns. Whether these guns,' at the time the fatal shot was fired, were in the hands of the members of the posse, is controverted. The use of weapons under the circumstances, we think, rendered it incumbent upon the court to instruct the jury n accord with article 1106, P. O., wherein it is said in substance that where the assailrnt is using a deadly weapon, the legal presumption prevails that he intended to inflict injury. The nature of the ease, that is, the evidence adduced, is not such as to warrant our holding tljat in failing to embrace the substance of article 1106 in the charge, there was an absence of injury to the accused.

After a careful examination of the record, we are constrained to hold that the motion for rehearing should be overruled, which is accordingly done. 
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