
    BROWN v. STATE.
    (No. 5695.)
    (Court of Criminal Appeals of Texas.
    April 28, 1920.
    Rehearing Denied June 9, 1920.)
    1. Homicide <&wkey;297— Refusal to instruct on justifiable homicide proper.
    In a prosecution for murder committed upon a negro in course of an unjustifiable assault made by .defendant as a member of a posse and other members upon the wife of deceased, refusal of the trial court to instruct on the law of justifiable homicide held not erroneous, the homicide not having been justifiable under any phase of the evidence.
    2. Homicide &wkey;>i 12(4) — Killing of negro by assailant of latter’s wife not in self-defense.
    • If a negro assaulted a posse member who, with others, was committing an unlawful assault upon the negro’s wife to compel her to reveal the whereabouts of a criminal, the attack was provoked by the posse member’s unlawful acts, and killing of the negro by him to avert injury to himself was unlawful, as the negro had a right'to protect his home and family, and to resist unlawful detention -of his own person also attempted.
    3. Homicide &wkey;>l 12(4) — That person assaulted by posse member stopped when ordered' did not deprive him of right to resist.
    Pact that negro stopped when posse member first ordered him to do so, and afterwards advanced threatening injury to posse member if he obstructed his progress to his home, where other members *of posse were illegally assaulting his wife to compel her to reveal whereabouts of a criminal, did not confer upon posse member the right to kill the negro, and, in restraining the negro by an assault with a shotgun, he was guilty of a continuous assault, which negro had right to resist.
    4. Homicide <&wkey;IOI— Posse member’s ignorance of character of assault on wife did not justify .his killing of husband.
    Where a posse member knew that his companions were making an illegal assault upon a negro’s wife to' compeh her to reveal the whereabouts of a criminal, though he was ignorant of the particular character of the force used by his companions, his ignorance did not render lawful his acts in attempting to restrain the negro with a shotgun when he was endeavoring to' go to the assistance of his wife, nor render justifiable the killing of the negro.
    5. Homicide t&wkey;l22, 123 — Negro had right to procure arms for defense of home and family.
    A negro had a right to procure arms if necessary to protect his home and family against an illegal assault by posse members endeavoring to discover the whereabouts of a ■ criminal.
    6. Criminal law <&wkey;423(3) — Proof of acts of companions of defendant admissible on ground of’common purpose or ratification.
    In prosecution of posse member for murder of a negro whose wife other members of the posse were assaulting in an endeavor to extort from her the whereabouts of a criminal, proof of acts of other members of the posse while assaulting the wife of deceased held admissible, defendant having shared in their purpose to assault the woman, or else, by having heard her screams and not interfered, having ratified the assault.
    7. Criminal law <s&wkey;l 169(6) — Testimony of acts of companions of defendant charged with murder harmless in view of verdict.
    In prosecution of posse member for murder of a negro whose wife other members of posse were assaulting in an endeavor to extort from her the whereabouts of a criminal, proof of the acts of defendant’s companions while assaulting the wife of deceased held harmless’ to defendant, where the verdict of guilty of manslaughter was the most favorable authorized by charge or facts.
    8. Criminal law <&wkey;>l 171(1) — Failure of court trying murder case to require opening statement by prosecution harmless.
    . In a prosecution for murder, failure of the trial court to require the district attorney to make an opening statement as directed by Code Or. Proc. 1911, art. 717, held harmless, no injury being disclosed by the record.
    9. Jury &wkey;>82(3) — Motion to quash venire for lack of personal summons properly denied where ail present or excused.
    In a prosecution for murder, defendant’s motion to quash the venire because Oode Or. Proc. 1911, art. 668, requiring the sheriff executing the writ of special venire verbally to summon the veniremen in person, was not observed, was properly denied, where all the special venire summoned by mail were either in attendance on the court or had been excused for sickness or other legal cause.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    D. Brown was convicted of manslaughter, and appeals.
    Affirmed.
    S. M. Adams, C. 0. Watson, and V. E. Mid-dlebrook, all of Nacogdoches, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant shot and killed Alex Escow, was indicted for 'murder, and convicted of manslaughter, and punishment fixed at confinement in the penitentiary for two years.

On the 16th of May, 1918, Orange Escow, a brother of deceased, killed Jackson Carn-elly, who was a cousin of appellant and a deputy sheriff, in a field near the home of deceased. Excitement followed the homicide. A posse, of which appellant was a member, was formed, and, on suggestion of search of Alex Escow’s home, a remark in the hearing of appellant was made that the Escow ne-groes were dangerous. On the following afternoon, believing that the wife of deceased had knowledge of the whereabouts of Orange Es-cow, and was suppressing the information, the appellant, in company with Smith and Davis, went to the- home of deceased, and while there the homicide took place. There is hut slight conflict in the testimony relating the incidents of the transaction. -Stating them as gáthered from appellant’s testimony, he and his companions had been deputized to aid in the apprehension of Orange Escow. They went by automobile, a distance of about 11 miles, to the home of the deceased. Davis and Smith went into the house; appellant, observing a negro attempt to run out, followed him, and on reaching the back gallery Davis and Smith were engaged in conversation with the wife of deceased, trying to get her to tell what she knew about the murder. Pausing but a short time, he followed the negro who had run out of the house, and ordered him to go in the lot, and shortly after reaching the lot he heard screaming at the house. There were several other young negroes about, and they were ordered by appellant to go in the lot. A negro boy, the son of deceased, came from the field on a mule about 'this time, and the deceased, with a stick in ope hand and a bucket in fhe other, was walking behind him. Quoting from appellant :

“When deceased was up about fifteen or twenty steps of me I told him to stop, and he stopped, and I told him that no one was going to the house; that the old negro woman was at the house, and they were trying to make her tell where the murderer had gone; and he said he was going to the house. I told him to stop, that he was not going to the house, and for him to stop there, he would be all ri|ht there; and he said he was going to the house; if I didn’t get out of the trail and let him go to the house he would kill me with the stick. He then started towards me, and I backed up two or three steps, maybe four or five, and X had my gun up to my shoulder. I motioned to him to stop. He kept on coming. From his appearance and looks I saw he was coming, and if I had not run or shot him or done something he would have knocked me in the head with that stick. I had been there the day before, and found a gun out there. I didn’t know but what they had a gun there. They were all over the country. He was coming straight towards me when I shot him. My gun was up, and I walked backward, and I told him to stop.”

Prom his cross-examination it appeared that he directed the younger members of the family to stay in the lot. They claimed that he told them to get in the wagon. He said he did not know what Davis and Smith did to the woman, but he heard her screaming,' hollering for help, and praying, but did not think they were going to hurt her. He said that he thought the old negro woman hushed hollering about the time that the old man reached the appellant; that he supposed deceased heard her hollering, and was coming to ascertain what was the matter; that he was told by appellant that no one was going to hurt her.

Before the killing took place the companions of appellant, Davis and Smith, put a rope around the neck of the wife of the deceased, put the rope over a rafter, and pulled her up off of the floor. During their assault upon her she was screaming and calling for help in a loud voice. The younger members of the family, who were congregated in a wagon at the lot, were also screaming. There was evidence that the deceased was in the habit of walking with a stick, and that at the time he was killed he had his walking stick. Several state witnesses declared that he made no demonstration with it, and that appellant did not retreat, but shot the deceased as he approached.

The appellant assails as error the action of the court in refusing to instruct the Jury upon the law of justifiable homicide. Under no phase of the evidence was the homicide justifiable; appellant’s conduct deprived him of the right of perfect self-defense. If the deceased assaulted appellant in the man-, ner described by him, the attack was provoked by appellant’s unlawful acts, and the homicide to avert injury to himself was unlawful. The deceased had the right to protect his home and his family (Richardson v. State, 7 Tex. App. 486; Wells v. State, 68 Tex. Cr. R. 618, 141 S. W. 96; Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 643), and to resist unlawful detention of his person, and in the interference with the exercise by the deceased of these rights the appellant was the aggressor. He was a trespasser upon deceased’s premises, and without warrant in law put deceased under such restraint as was tantamount to an illegal arrest. His acts were unlawful, and sufficient and reasonably calculated to provoke the difficulty. Ross v. State, 10 Tex. App. 458, 38 Am. Rep. 643; Peter v. State, 23 Tex. App. 684, 5 S. W. 228; Goodman v. State, 4 Tex. App. 349; Williams v. State, 41 Tex. Cr. R. 365, 54 S. W. 759; Miers v. State, 34 Tex. Cr. R. 161, 29 S. W. 1074, 53 Am. St. Rep. 705; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836.

The fact that deceased stopped when appellant first ordered him to do so, and presented his gun, and that he afterwards advanced, threatening injury to appellant if he obstructed his progress to his home, did not confer upon appellant the right to kill deceased. In restraining deceased by force of an assault with a shotgun he was guilty of a continuous assault. Alford v. State, 8 Tex. App. 545; Johnson v. State, 5 Tex. App. 47. The deceased had a right to resist it to regain his liberty and to go to his home. These rights continued, notwithstanding he stopped when the appellant first commanded him to do so. There was no abandonment of the aggression on the part of the appellant, so long as he opposed by force the freedom of action of deceased. Woods v. State, 3 Tex. App. 204; Maner v. State, 8 Tex. App. 361; Staples v. State, 14 Tex. App. 136.

If, as claimed by appellant, he was ignorant of the character of force in use by his companions in making the wife of the deceased divulge facts within her knowledge, such ignorance would not render his acts lawful nor the homicide justifiable. He was aware that in making the woman disclose the facts within her knowledge the treatment of her by his companions was such as to cause her to utter screams, calls for help, and prayers for mercy.

Whether her outcries continued up to the moment the shot was fired or not, they were heard by the deceased and by the appellant before the deceased was commanded to refrain from going to the aid of his wife, and were known to appellant when he killed the deceased while he was resisting the force used by appellant to compel obedience to his commands. The fear which appellant says possessed him that deceased might obtain arms if not restrained does not justify the appellant. The deceased had the right to procure arms, if necessary to protect his home and his family. Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 043.

The complaint of the proof of acts of Davis and Smith, while they were assaulting the wife of deceased, in our judgment is not well founded. The appellant and his companions in entering the premises had the common purpose to make the negro woman divulge facts supposed to be within her knowledge. If, as he claims, the means of accomplishing this purpose were not agreed upon, his conduct in preventing interruption of their effort by keeping her son and daughters and her husband away, when by her protestations he was advised that the means used by Davis and Smith were putting her in terror and in pain, was such as to raise the issue that he and they were acting together. We find no evidence that in the design to compel the woman to divulge the facts the intent of appellant was different from that of Davis and Smith. But, if the contrary were true, the conduct of appellant in continuing to act with them, with knowledge that personal violence was being used against her, would justify the conclusion that he ratified and adopted their acts, and make' him a principal with them in the unlawful act.

Moreover, the admission of the evidence showing the conduct of his associates towards tire woman was not injurious to appellant, because, despite such proof, the verdict rendered by the jury was the most favorable to him that was authorized by the charge or justified by the facts.

The absence of injury disclosed by the record renders the failure of the court to require the district attorney to make an open- . ing statement, as directed by article 717, C. C. P., harmless. Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

The motion to quash the venire was overruled. The facts attending it are set out in the agreement contained in the bill of exceptions certified and qualified by the trial judge. Prom the bill we copy it as follows:

“That the said veniremen were served by the officer mailing out a post card and mailing the same to their addresses as known by them; that said original venire facias consisted of 100 men, as drawn by the district clerk, but that only 42 appeared in obedience to said summons; and that defendant was compelled to select the jury, or attempt to select the jury, from less than 50% of the venire facias, and forced to go to trial; and, notwithstanding which said motion and agreement so made by the state, the court declined and refused to- sustain motion and quash venire facias, but overruled the same, and renders said venire so drawn, and required defendant to proceed with the selection of the jury therefrom, and from which the defendant was compelled by the court to select the jury which tried said cause;” to which action of the court the defendant then and there excepted and tendered his bill of exceptions. No. 2 (latter half Tr. p. 23), which bill of exceptions was tendered to the court and allowed by the court (Tr. p. 24), with this proviso: “Further, all of the special venire were either in attendance upon court or had been excused by the court on account of sickness or some legal exemption.”

The statute (article 668) requires the sheriff executing the writ of special venire to verbally summons the veniremen in person. The failure of the sheriff to comply with this statute does not in every case work a reversal. In the early case of Charles v. State, 13 Tex. App. 664, the venire called for 60 men. But 36 were summoned. The motion to quash was overruled. The court said:

“In this case it does not appear that the trial judge committed any error in overruling the motion to quash the venire, nor that any right of the defendant was prejudiced thereby. For aught that appears from the record, the jury that tried the case was composed of men selected from the thirty-six summoned jurors. If so, the defendant certainly cannot complain that he was injured by the ruling of the court upon his motion. It is not shown that the defendant, by reason of the ruling of the court, was compelled- to pass upon talesman jurors, or to accept any objectionable juror, or in any other manner suffer injury by reason of the overruling of his motion.”

Rulings following the Charles Case will Bfound in Parker v. State, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967; Jones v. State, 214 S. W. 325; Whittington v. State, 215 S. W. 457.

The application of this rule to the instant case is emphasized by the qualification of bill by the trial judge to the effect that all of the special venire were either in attendance upon the court, or had been excused by the court on account, of sickness or some legal exemption. The purpose of the personal summons is to procure the attendance of the jurors. When that is accomplished by an irregular summons, the form of summons is not available as a ground for quashing the writ, unless some injury is shown. Whitting-ton v. State, 215 S. -W. 457. From the 12 American & English Encyc. of Pleading and Practice, p. 324, we make the quotation:

“Where a venireman appears, though irregularly summoned, or in fact not summoned at all, the irregularity or omission will be deemed immaterial, since his attendance, which is all that the service of process would effect and which is its object, has been attained.” ■

The ease of Johnson v. State, 218 S. W. 496, to which we are referred, is not analogous. In that case the statute designated the list of names drawn by the jury commissioners from which to draw a special venire. In drawing the special venire a different list was used. The record failed to disclose that any of the men composing the jury was legally drawn. VThe accused was denied a jury selected by law. This is not such a case. Here all of the jurors were' legally drawn. The summons was irregular, but their appearance cured this fault. The jury illegally drawn in Johnson’s Case assessed against him the death punishment. -The jury in this case lawfully drawn, and attending in response to an irregular summons, convicted appellant of the lowest grade of offense which, under the law and the charge of the court, was authorized, and assessed against him the lowest punishment.

The judgment is affirmed. 
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