
    TORRANS v. STATE.
    (No. 8223.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Jury 122 — Refusal to- stand aside juror held not error, in view of lack of diligence and prejudicial efféct.
    Refusal to stand aside juror because related to state Witness held not error, where diligence in discovering juror’s relationship or prejudicial effect of juror’s presence was not shown; juror’s relationship- to state witness not being statutory ground of challenge for cause.
    2. Homicide 198 —(Testimony that defendant forcibly ejected occupant held admissible in rebuttal of testimony of peaceable possession of premises.
    In prosecution for assault with intent to-murder, testimony that defendant and his wife had forcibly ejected witness from certain premises by means of weapons was competent in rebuttal of defendant’s claim that assault was, committed while in peaceable possession of such property.
    3. Criminal law @=3656(2.) —< Statement by . court that attorney could take witness out and talk to him held not error.
    Action of trial court in telling attorney for either side, who has witness unfamiliar with court procedure or who is voluntarily offering statements in evidence, that it would be proper for attorney to take witness out and talk to him is not error.
    
      4. Homicide <@=198 — Testimony as to ownership of property properly excluded.
    Where alleged assault occurred in connection with defendant’s possession of property, testimony of one defendant that she had gone into question fully and knew the property belonged to her and the other defendant held properly excluded.
    5. Criminal law <@=l 120(3) — Bill failing to show what excluded answer would have been not reviewable.
    Bill, complaining of court’s refusal to permit defense to ask state witness on cross-examination if she was not a common prostitute, held not reviewable, where it does not show what answer would have been, or that she would have waived right to decline to answer.
    6. Homicide <@=300 (7) — Requested charge on self-defense held properly refused as requiring jury to believe all facts stated therein before acquitting, and as net being sustained by facts.
    In prosecution for assault with intent to murder, defendant’s requested charge as to defense of property held properly refused as grouping a number of facts and requiring jury to believe them all before acquitting, and also as not being sustained by the facts.
    7. Homicide <@=303 — Failure to charge on defense of property held not error, in view of evidence.
    In prosecution for assault with intent to murder,' court’s failure to charge on defense of property rights held not error, in view of evidence.
    8. Criminal law <@=730(7) — Argument of prosecuting attorney held not reversible error, in view of court's instruction to disregard and evidence supporting argument.
    In prosecution for assault with intent to murder, committed while in possession of premises from which former occupant had been forcibly ejected by means of weapons, argument of prosecuting attorney that defendant had forced such occupant, an old lady, out of premises by punching a gun in her breast was not reversible error, in view of court’s instruction to jury not to consider such remarks, and of occupant’s testimony to same effect, although such testimony was improperly excluded on defendant’s objection.
    9. Criminal law <@=l 171 (6) — Argument of prosecuting attorney merely abusive, improper but not reversible error.
    Argument of prosecuting attorney that “Dogs * * * will respect their dead, but here is a man who is lower than dogs, * * * ” etc., although improper, was not sufficiently injurious to warrant reversal, where it related to no issue.
    10. Criminal law <@=722(3) — Argument of prosecuting attorney held warranted by state’s evidence.
    In prosecution for assault with intent to murder, statement by prosecuting attorney that “defendant was at hotel that day ready to shoot anybody who came there,” held warranted by state’s evidence that defendant eom-menced shooting, without parleying, immediately upon perceiving officers approaching hotel.
    On Motion for Rehearing.
    11. Homicide <@=247 — Evidence held not to shew rightful possession, within statute as to homicide in protection of property.
    In prosecution for assault with intent to kill, committed while in possession of premises from which former occupant claimed she had been forcibly ejected by defendant, evidence held insufficient to show defendant’s rightful possession of premises, within Pen. Code, art. 1110, as to homicide in protection of property.
    12. Homicide <@=310(4) — Evidence held not to warrant instruction on aggravated assault.
    In prosecution for assault with intent to murder, evidence held insufficient to warrant instruction on law of aggravated assault.
    Appeal from District Court, Eastland County; E. A. Hill, Judge
    W P. Torrans was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    E. A. Bills, of Eastland, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Eastland county of assault with intent to murder, and his punishment fixed at two years in the penitentiary.

A hotel building situated in the town of Banger was the subject of. a controversy between appellant and his wife, on one side, and the Bices, on the other The Bices seem to have been in possession of the property. On the day of the alleged assault they were all supposed, by appellant, to have-gone to a funeral. As a matter of fact, the mother-in-law of one of them had been left at said building. Appellant and his wife, each armed with a pistol, went to the building, after consultation with an attorney, and took possession of it. There is a controversy between them and the mother-in-law-; as to the manner and method of such taking.'.. She testified that they presented a pistol at her and took it from her, but her evidence was excluded by the court. Appellant and his wife said that when they entered and took possession she went away.

The mother-in-law of the Bices reported to the officers what had taken place, as viewed by her from her standpoint, and said officers went to the premises in a car. They testified on this trial that appellant and his wife-were sitting on the porch when they stopped their car at the curb, and that before they had time to acquaint said parties with their official character or the purpose of th.eir visit appellant and his wife began shooting at them from the porch. Appellant and his wife testified in substance that they expected trouble with the Rices, and went to said premises prepared to defend their possession, thus acquired, by the use of their weapons. They said they had been told by an attorney they had a right to do so. They further testified that when the officers came up appellant was upstairs in the building, and that his wife was sitting on the porch, and that they were fired upon by the officers without preliminaries. She testified that she returned the fire. Appellant said that when he heard the shooting from where he was he thought the Rices had come back and opened fire upon them. Both appellant and his wife testified that they did not know any of the party of officers, and that they supposed an attack had been made upon them by the Rices.

Erom what we have said, it is plain that the theories, respectively, of the state and the defendant were wholly at variance; that of the state being an unprovoked assault by appellant and his wife upon the officers with pistols, without waiting for any manifestation of hostility on the part of said officers, or any explanation from them as to the purpose of their stopping at the curb. The state attributed the beginning of the difficulty and the firing of the first shots entirely to appellant and his wife. Appellant and his wife asserted that everything they did was in self-defense against an unlawful attack begun wholly by the officers, and that in all they did they believed themselves to be defending against an attack'on the part of the Rices.

The first bill of exceptions complains of the refusal of the trial court to stand aside a juror after he had been selected to try this case, upon discovery of the fact that he was related to a state witness, alleged in the bill to be a prejudicial witness. There is nothing in the bill to show any diligence on the part of appellant in discovering the relationship of said juror, and nothing showing in any way that the presence of said juror on the jury was hurtful to appellant. That one is related to a state witness is not a statutory ground of challenge for cause, and in the attitude the bill presents itself to us we are not prepared to say that the learned trial judge erred in declining to stand the juror aside.

Bill of exceptions No. 2 sets out the testimony given by the mother-in-law of one of the Rices, regarding the method and manner of the taking possession of said premises above referred' to by appellant and his wife. She said that appellant pushed the door open and came in and put a gun right up that way (indicating toward her breast). The bill further reflects that an objection was made to this evidence, and that the court excused said witness and instructed the jury not to consider her testimony, in language which is also set forth in the bill. It is then stated that the appellant excepted, because the statements were immaterial, prejudicial, not a part of the res gestae, and for the further reason that the court could not cure the error of the testimony by instructing the jury not to consider same. We are not in accord with the view that this testimony was incompetent. Appellant made the basis of his and his wife’s action in the premises the proposition that they were in peaceable possession of property which they claimed as theirs. Said testimony appears to us to be in rebuttal of the proposition that they were in fact at any time in peaceable possession of the premises. We doubt seriously whether persons may take forcible possession of property, ejecting others therefrom by the use of weapons, and then assert their right to defend said property by shooting other persons whom they supposed to be asserting a claim to the property adverse to themselves.

We would not think it improper for the court to tell the attorney for either side, who had a witness seemingly unfamiliar with court procedure or who might be voluntarily offering statements in evidence, that it would be proper for him to take the witness out and talk to him. We do not see how this could leave the impression upon the jury that there had been another offense committed by the accused, in a criminal case, or how it could tend to intensify in the minds of the jury a prejudice claimed to have resulted from testimony already given by such witness. We think no error is presented by the bill complaining of this proceeding.

We do not think the court erred in permitting the mother-in-law of Mr. Rice to testify that on the day of the shooting appellant came to the premises and demanded of her possession of said premises, and that he put her out of the room without her consent, and that immediately after he did so she went to the police station. We have expressed our view of such testimony in. discussing bill No. 2.

Bill of exceptions No. 5 complains at length of various matters, a part of which appear to have been testified to by appellant without objection. The testimony complained of purported to be what would have been said by appellant’s wife while on the witness stand. The matters set out in said bill are not such as the witness would have been permitted to give in testimony, such as the statement that she and her attorneys had gone fully into the record and facts touching the question of the ownership of the property where the shooting occurred, and that they knew said property was the property of herself and her husband, and that in fact she legally owned said property. The only question seemingly raised by the evidence in behalf of appellant was of the right of self-defense, and it could have been in no wise established by the testimony, rejection of which is complained of in said bill. We observe that appellant testified to his belief of their ownership of the property in question, and the learned trial judge in qualifying the bill, under discussion says he offered to let the wife also so testify.

Bill of exceptions No. 6 complains of the refusal of the court to permit the defense to ask a witness for the state on cross-examination if she was not a common prostitute. In view of the fact that the bill does not set out what the answer of the witness would have been, or that she would have waived her right to decline to answer the question reflecting upon her, and would have answered in the affirmative, said bill presents no error.

We perceive no reason for the court charging only upon the law of aggravated assault, as requested in a motion filed by the appellant, and believe no error was committed in the refusal of said motion. ,

There is complaint of the refusal of the court to charge the jury that, if appellant owned the building where the shooting occurred, or if he believed he owned the same, and that he had the legal title and possession of said property, or if he feared that other parties might make an attempt to seize and take said property, or if the jury believed from the evidence that appellant believed the officers were parties going to attempt to take said property, and that the defendant believed said parties were making an attempt to take said property, etc. Said charge is obnoxious to the principle laid down in section 1944 of Mr. Branch’s Annotated P. C., where are collated a number of authorities sustaining the proposition that a charge on self-defense should not group a number of facts and require the jury to believe them all before they are authorized to acquit. Said charge is also open to the further objection that it is not sustained by the facts in the record. Appellant testified that he shot because of the attack that had been made upon his wife, and she testified that she shot because of the attack that had been made upon her. The testimony both for the state and the appellant is in accord, upon the proposition that there was no investigation or statement or parley of any kind between the parties before the shooting began. If the testimony for the state is looked to to determine the issues, the shooting began at once upon the officers’ arrival, and without any statement by either party. If the testimony of the appellant is looked to for the same proposition, it shows that the officers began shooting without investigation as soon as they drove up. In the latter event, appellant and his wife would be accorded their absolute right of self-defense. In the former they would have no right of self-defense, either based on the proposition of defense of person or property.

For the reasons just stated in discussing bill of exceptions No. .8, we would be constrained to hold the charge of the court below not defective, because of its failure to include a charge on the defense of property rights; this matter being complained of in appellant’s bill of exceptions No. 9.

It is made to appear in bill No. 10 that the state’s attorney said to the jury that the defendant forced the. old lady Brown out of the hotel by punching a gun in her breast;, the lady referred to being the mother-in-law of one of the Rices. When objection was made to this statement, the learned trial, judge instructed the jury not to consider said remarks, notwithstanding which by this bill of exceptions it is insisted that the matter was so harmful as that it could not be remedied by such instruction. We do not consider the matter of the gravity attached to it by appellant. The occurrence referred to was part of the act of appellant in taking possession of the place, and led up to the shooting. It is in testimony by Mrs. Brown that appellant came to the premises where she was, and demanded possession,, and put her out of those rooms without her consent, and that she went with her complaint to the police station. She also testified that appellant put a gun up to her breast when he demanded possession. This latter was excluded by the court, but in our opinion was not subject to the objection made. 'We do not think reversible error committed by the argument complained of.

Another bill complains of a statement by the county attorney as follows;

“Dogs and other animals of the lowest kind will respect their dead, but here is a man who is lower than dogs and the vilest of creation, who would not respect the dead.”

It is very much to be regretted that language of this kind would be indulged in by an attorney arguing a case in a court of justice. It has no pertinence to any issue, and but reflects an advantage taken of his position as counsel in the court room to use abusive language toward one charged with crime. Such conduct is inexcusable, and deserved to be severely reprimanded by the trial court. ■ However, when viewed front the standpoint of its probable effect upon the jury and its relation to the issues involved in this case, we observe that it seems to relate to no issue and to no testimony, and to be but relegated to the realm of abusive language, unsupported by testimony and unrelated to any issue. We cannot think that an intelligent jury would have their passions inflamed, or their prejudices aroused, or their sympathies appealed to, or their judgment warped, by such statements. So believing, it appears to us that to reverse the ease for said statement would be an infliction of injury upon the state, and the incurl ring of the expense of another trial because of a. matter which, while wrong and inexcusable, would seem not capable of injurious effect.

The statement complained of in bill of exceptions No. 12, to the effect that “This defendant was at that hotel that day ready to shoot anybody whp came there,” would seem to some extent to be warranted by the áction of the appellant, as reflected by the state’s testimony. Nor do we believe the criticism of the argument reflected in bill of exceptions No. 13 to be well taken. If the Rices had driven up in a car after the funeral, and appellant and his wife had opened fire upon them without a word or movement, as appears from the state’s testimony to have been the manner of their assault upon the officers, they would' have been as guilty of an assault as if they had shot in the same manner and under the same circumstances at the officers.

We have carefully considered each of the complaints made, as well as the facts in evidence, and do not believe the record to show any error for which this judgment should be reversed, and an affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

Genett, accompanied by Hargraves, went to the scene of the assault for the purpose of arresting the appellant. A warrant authorizing the arrest was possessed by Genett. On their arrival the shooting took place; the evidence as to the beginning of which was in conflict. Genett was acting chief of police.

According to the testimony of Mrs. Ida Brown, the mother-in-law of A. O. Rice, she was in the property known as the Travis rooms while Rice and his wife, who lived there, had gone to a funeral. Appellant came to the rooms and put the witness out without her consent. She went to the police station.

Appellant testified that he built the Travis rooms in 1919, and that at the time of the alleged offense he claimed to have owned them and believed that he was the owner. He had been told by the county attorney that if he got peaceable possession of the property he would be within his rights to kill anybody who sought to take it away from him, and that, acting upon this information, he and his wife went to the premises, each armed with a pistol. Quoting him, he said:

“The Rices were gone to the funeral of one of the Rice brothers. An old lady had charge of that property when I went down there. As to whether I threw her out of there, she went out herself. She said, ‘Wait until I unlock the-door, and I’ll come out.’ That is what she said.”
“We thought they were all at the funeral. * * * We .went down there and the house was all locked up, and we went to the front door and shook it, and this old lady came to the front door, and she said, ‘Wait until I unlock the door, and I’ll get out.’ ”

A. O. Rice testified that he was attending the funeral of his brother at the time of the shooting. The statute (article 1110, P. 0.) touching the law excusing a homicide when committed in the protection of property reads thus:

“When, under article 1107, a homicide is committed in the protection of property, it must be done under the following circumstances:
“1. The possession must be of corporeal property, and not of a mere right, and the possession must be actual and not merely constructive.
“2. The possession must be legal, though the right of the property may not be in the possessor.
“3. If possession be once lost, it is not lawful to regain it by such means as result in homicide.
“4. Every other effort in his power must have been made by the possessor to repel the aggression before be will be justified in killing.”

We understand from the record, as revealed by the testimony of the appellant, that he claimed ownership of the property and believed himself to be the owner thereof. He knew the fact that the .Rices were occupying the premises; that they had gone to a funeral; that they had locked the doors. • It was his intent to take forcible possession of the property, in the absence of the Rices. According to the testimony of Mrs. Brown, he did forcibly dispossess her. She testified, also, that this was done at the point of a pistol. That phase of her testimony the court improperly instructed the jury to diregard. It is upon these facts that • the statute operates, and upon the application of the statute that the appellant’s right, if any, to defend his possession of the property by attempting to commit the homicide must be tested. We confess that we are unable to conclude that there is evidence upon which the jury might have determined that at the time the shots were fired the •appellant was the rightful possessor of the property. If his ownership be conceded, the possession was lost and his re-entry was unlawful.

Appellant refers to the Ledbetter Case, 26 Tex. App. 22, 9 S. W. 60, as furnishing the precedent condemning the action of the court in refusing to charge on aggravated assault. In the present case, the court ac-^ corded the appellant the full right of self-' defense. The only defensive theory presented by the appellant is that he was attacked in a manner which endangered his life. In Ledbetter’s Case it is said, in substance, that, if the attack upon the property is such as to produce in the mind of the owner a reasonable apprehension of fear of death or serious bodily harm, the owner may act at once, without resorting to other means to protect his property; but, if the owner of the property is attacked, not in such manner as to endanger life, every effort must tie made to repel the aggression, in order to justify the homicide. It is further said:

“But suppose, as is very clearly indicated in this record, it was the purpose of Rice to take the plow and oxen from the accused — evidently this would have been unlawful — and the attempt to seize the property aroused the passions of the accused to such an extent as to render the mind incapable of cool reflection, to such an extent as to rebut the presumption of malice, the killing would be manslaughter only, though the defendant did not resort to all other means to prevent the seizure of the oxen.”

The plow and oxen were in peaceable possession of the accused and Rice sought to •dispossess him thereof. In the present case appellant’s possession was neither peaceable nor lawful.

According to the theory of the appellant, the only attack made was the one endangering his life or serious bodily harm. Against this he directed resistance, and was accorded by the court the unqualified right ■of self-defense. According to the state’s theory, there was no attack made by the injured party, but he was fired upon immediately upon his arrival. He indicated no purpose to take the property, but it was his purpose to execute the warrant of arrest which he had in his possession. We are constrained to adhere to our former ruling, ■denying the existence of evidence requiring .an instruction to the jury upon the law of aggravated assault.

We also entertain the opinion, as stated on the original hearing, that the facts in evidence negative the condition warranting n homicide in the defense of property. The motion for rehearing is overruled. 
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