
    BOWMAN v. STATE.
    (No. 9261.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Homicide &wkey;>340(4) — Where accused convicted of manslaughter, error in charges on murder automatically removed from case.
    When accused was convicted of manslaughter, questions as to the correctness of charges on murder and inadequacy of charges submitting manslaughter were automatically removed from the case.
    2. Criminal law &wkey;>893 — Verdict should receive liberal rather than strict construction; object being to ascertain intention of jury.
    Verdict of conviction should receive liberal rather than strict construction, and, if the finding of the jury can be reasonably ascertained, verdict should be held good as to form; the object being to ascertain the jury’s intention.
    3. Criminal law <&wkey;>885 — Verdict as rendered in manslaughter case held not such as to give accused benefit of suspension of sentence.
    Verdict of conviction of manslaughter held not to recommend suspended sentence, in view of fact that word “not” was written into verdict in different handwriting from that of the balance of verdict, and 'was not stricken by drawing line through it, where it clearly appeared that such word was written over the line.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>778(5) — Objection that charge on self-defense placed greater burden upon defendant than required by law held without merit.
    In prosecution for murder, objection that court’s instruction on self-defense placed greater burden on appellant than required by law held without merit, since charge, when correctly construed, made right of self-defense dependent upon belief in premises and not upon-actual fact of assault, and gave defendant right of self-defense, if deceased advanced toward her in threatening manner.
    5. Homicide t&wkey;>300(3) — Not erroneous for court to make right of self-defense dependent on belief that accused was in danger of life or serious bodily injury.
    In prosecution for murder, held that it was not erroneous for court to make defendant’s right of self-defense dependent upon belief [ that accused was in danger of losing life or suffering serious injury at hands of deceased.
    Commissioners’ Decision.
    Appeal from District Court, Panola County; Chas. L. Brachfield, Judge.
    Della Bowman was convicted of manslaughter, and she appeals.
    Affirmed.
    J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.
    ' Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Panola county for the offense of manslaughter, and her punishment assessed at confinement in the penitentiary for a term óf two years.

Various objections are urged by appellant to the charge of the court, but most of these objections are applicable to the charge on murder, and the inadequacy of the charges submitting manslaughter, and, in view of the fact that the appellant was convicted for manslaughter, these questions have thereby been eliminated from the ease.

We have carefully examined appellant’s criticisms of the court’s charge submitting the law of self-defense, and we cannot agree that it is subject to the criticisms urged against it, but, on the contrary, we think it very clearly applies the law to the facts in the case.

Appellant complains, that the verdict as .rendered by the jury was; such as to give her the benefit of the suspended sentence. The original verdict of the jury has by proper order of the court been sent to this court, and is before us for review. The verdict is in the following language:

“We, the jury, find the defendant guilty of manslaughter, and assess her punishment at two years’ confinement in the penitentiary. We further find that the defendant has never been convicted of a felony in this state or any other state, and recommend that her sentence be not suspended.”

The verdict is properly signed by John’ Young, foreman. In that clause of the verdict which reads, “and recommend that her sentence be not suspended,” there is a line .drawn either under or over the word “not.” In ordering the original verdict’ to be sent’ to this court, the trial court makes the fol-lowing explanation:

“That the jury, after having considered the case, carne into open court with a verdict of guilty, assessing the penalty at two years in the penitentiary, but failed to pass on the question of whether they would suspend the sentence or not. The court, in the presence of one of. the attorneys for the defendant, wrote the verdict just as it was written by the jury, and underneath wrote the form that was necessary on the question of suspended sentence, leaving a blank underscored by the line, and instructed the jury that, if they decided to suspend the sentence, they would leave the space blank, and, if 'they decided not to suspend the sentence, they would write the word “not” in the space. The jury was then ordered to retire to their room to further consider their verdict, after they brought in the verdict as recorded in this ease. In writing the word “not” they wrote it so that the line would pass through the word “not”; they wrote it so that the line would pass through the word instead of above the line. When the verdict was returned in the court, the same was read to the jury in" the presence of defendant and one of defendants attorneys, and the- foreman of the jury was asked if that was the verdict of the jury, which refused the suspended sentence. The foreman answered in the affirmative, and then the balance of the jury were asked if it was their verdict, and'they all answered in the affirmative. There was no objection by defendant or her counsel, and the verdict was received.”

By a separate bill of exception, the defendant shows to the court that he excepted to the explanation of the court with reference to how this verdict was received and what was said and done at the time it was received. Appellant by his bill shows that the reason that he objected and excepted to the court’s explanation was that said explanation cannot be received to impeach the verdict as it was returned, to explain it, or show a mistake in it, but the verdict must speak for itself.

We cannot agree with appellant’s contention in this matter. The verdict should receive a liberal rather thar. a strict construction, and, if the finding of the jury can be reasonably ascertained, the verdict should be held good as to form. The object should be to ascertain the intention of the jury. Section 646, Branch’s P. C., and many authorities there cited.

Applying this rule of construction to the verdict in this case, we have no doubt but that the jury intended not to suspend the appellant’s sentence. An inspection of the original verdict shows that the word “not” was written in a different handwriting from that of the balance of the verdict, and it also seems perfectly apparent from an inspection of the verdict that the word “not” was written over the line rather than that the line was drawn through said word. Under these conditions, we think it clear that appellant is not entitled to a suspended sentence under the verdict rendered.'

Finding no error in the record, it is our opinion that the same should be in all things 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.

On Motion for Rehearing.

LATTIMORE, J.

Appellant and her daughter testified that they were going up the railroad track and met deceased, his brother Johnny, and others, following which meeting some conversation was had between appellant and Johnny, after which the latter caught hold of appellant’s daughter; that appellant then drew her. pistol, and told him to turn the girl loose or she would kill Mm. Appellant and her daughter testified that at this time deceased advanced toward appellant, who repeatedly told him to get bade, but, he continuing to advance and throwing his hand behind him, appellant turned the pistol from Johnny to deceased and fired. The court gave the following charge;

“Now, if you believe from all the evidence that the defendant, viewing it from her standpoint at the time of the" killing, believed that Johnny Pipkin was making an assault on her daughter Evaline Bowman, and from the relative size and strength of the parties and of any statements communicated to her made by the said Johnny Pipkin, or threats to do her, the said Evaline Bowman, any injury, that she, the defendant, drew the pistol for the purpose of protecting the said Evaline Bowman, and at which time the said Abram Pipkin interfered and attempted to prevent her, the defendant, in protecting her said daughter, Evaline Bowman, and in so doing she shot and killed the said, Abram Pipkin, then you will find the deT fendant not guilty; or, if you believe from the evidence that the defendant, believing that her daughter was in danger from an assault made by Johnny Pipkin, and was attempting to protect her, and that the said deceased Abram Pipkin advanced towards her in a threatening manner, and, viewing the same from her standpoint, it reasonably appeared to her that she was in danger of losing her life or receiving serious bodily injury at the hands'of the said Abram Pipkin, whereupon she shot and killed the said Abram Pipkin, you will find the defendant not guilty; or, if you have a reasonable doubt as to any of these facts being true, you will acquit the defendant.”

This charge is made the subject of attack in the motion, it being asserted that same placed a greater burden upon appellant than is required by law, in that it required the jury to find before they could determine that appellant acted in self-defense — that Johnny, the brother of deceased, was making an unlawful assault on defendant’s daughter, and that defendant was protecting her daughter, or attempting to do so, at the time she shot and killed deceased.

We think a careful analysis of the charge will show that appellant’s right óf self-defense was made to depend upon her belief in the premises and not upon the actual fact of an assault, and, furthermore, the latter part of sai'd charge gives to her the right of self-defense, if deceased advanced toward her in a threatening manner, and, if viewed from her standpoint, it reasonably appeared to her that she was in danger, etc. We do not think appellant could have suffered any injury from the fact that in both phases of said charge the court inserted the proposition of her drawing the pistol for the purpose of protecting her daughter. It was not claimed by anybody that deceased made any attack upbn appellant separate from or disassociated with her drawing the pistol upon Johnny, the brother of deceased. All the witnesses, both for the state and the appellant, assert that the pistol was drawn by appellant in a threatened attack upon Johnny Pipkin. We think also that it is perfectly apparent that what was done by deceased was for the purpose either of assisting his brother or making a separate attack _ upon appellant, regardless of her purpose "of protecting her daughter. We are unable to perceive any error in the charge.

Nor are we able to see any force in the proposition that the court made appellant’s right to defend herself depend upon whether she believed herself in danger of losing her life or suffering serious bodily injury at the hands of deceased. She testified, as did her daughter, that deceased advanced toward her, and continued to come, notwithstanding her repeated warning to get back, and that he threw his hand behind him, and that thereupon appellant shot. This, we think, did not make it erroneous to make the right of self-defense depend upon a belief that appellant was in danger of losing her life or suffering serious bodily injury.

The motion for rehearing will be overruled. 
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