
    BARNARD v. STATE.
    (No. 5490.)
    (Court of Criminal Appeals of Texas.
    March 31, 1920.
    On Motion for Rehearing, May 12, 1920.)
    1. Criminal law @=>866 — “Verdict” held notar-rived at “by lot.”
    Where jurors, after voting guilty of manslaughter, agreed to add up their preferences as to length of sentence and divide by 12, and quotient amounted to four years and five months, and thereupon it was suggested that the verdict be fixed at four years and there was a unanimous vote in favor of such term, held, there was no violation of Vernon’s Ann. Code Or. Proe. 1916, art. 837, subd. 3, forbidding a verdict to be arrived at by lot.
    2. Homicide @=>157(1) — Evidence tending to show former grudge held admissible.
    In a prosecution for murder, evidence tending to show enmity or former grudges on the part of accused against deceased is admissible.
    3. Criminal IaW @=>680(1) — No abuse of discretion in permitting admission of evidence for . state after defendant closed.
    In a prosecution for murder, court did not abuse its discretion in permitting a witness to testify, after defendant had closed his evidence in chief, that deceased was manager of her farm on which accused was a tenant, and that on one occasion when a misunderstanding came up over the division of pecans accused became very angry and insisted that deceased was the one who was causing him the trouble; it not appearing that the court refused accused the privilege of introducing evidence upon the matter.
    4. Criminal law <@=> 1153(3) — Order of testimony largely confided to discretion of court.
    The order of testimony is not fixed by ironclad rules, and is confided largely to the discretion of the trial courts, and their actions regulating the same will ordinarily be upheld unless by some unusual variance from the customary procedure some injury appears probable.
    5. Criminal law <@=>729 — Statement of state’s counsel in argument not prejudicial where withdrawn.
    A statement of the prosecuting attorney in his argument, to the effect that one of accused’s attorneys went to the scene of the crime and got the parties to make certain tests, was not prejudicial to accused, where one of accused’s attorneys objected for the reason that he was never at the place of the crime and state’s attorney thereupon accepted Ms word and withdrew the statement.
    6. Criminal law <@=>723(1) — Argument that children of deceased were entitled to sympathy not reversible error.
    In a prosecution for murder, statements to the effect that the children of deceased were entitled to sympathy held not to call for a reversal.
    7. Homicide <@=>340(4)— Submission of murder charge not erroneous simply because conviction was for manslaughter.
    The fact that one charged with murder is found guilty of manslaughter does not show that the court erred in submitting the law. of murder to the jury.
    On Motion for Rehearing.
    8. Criminal law <@=>l 156(5) — Findings by court on testimony of jurors upheld in absence of manifest wrong.
    Findings made by the trial court upon fact issues raised by testimony of jurors as to manner of arriving at verdict on motion for new trial are always upheld on appeal, unless it appears that the decision is manifestly wrong, under Vernon’s Ann. Code Or. Proc. 1916, art. S37.
    Appeal from Criminal District Court, Travis County;' James R. Hamilton, Judge.
    Walter Barnard was convicted of manslaughter, and appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for tl).e State.
   LATTIMORE, J.

Appellant was indicted

in the criminal district court of Travis county, upon a charge of murder; and upon his trial was convicted of manslaughter, and his punishment fixed at four years in the penitentiary.

Considering the errors urged in the order as presented by appellant’s brief, we first notice the contention that the verdict was reached by lot, and that same is therefore illegal. The record discloses that the testimony of the jurors was "heard in support of this motion for a new trial, their testimony substantially being that after they had agreed on a verdict of guilty of manslaughter, finding themselves of various minds upon the question of the penalty, they agreed to add up their several preferences, as to amounts, and divide the result by twelve, which was done; and the quotient amounted to four years and a fraction, or, four years and five months, as testified to by most of them. Thereupon, some one either made a motion, or suggested, that the verdict be fixed at four years, and there was a unanimous vote in favor of this term. This is not such procedure as amounts to a violation of our statute forbidding a verdict arrived at by lot. See section 656, Branch’s Ann. Penal Code; Dawson v. State, 72 Tex. Cr. R. 78, 161 S. W. 469; Lamb v. State, 75 Tex. Cr. R. 75, 169 S. W. 1159’; article 837, subd. 3, Vernon’s C. C. P. The evidence was practically in accord that, after agreeing to a verdict of manslaughter, a large majority of the jurors were found to favor five years, and two or three for a lesser penalty; and the trial court was warranted in concluding that the addition and division were not to be binding upon them, and it was not so in fact.

Complaint is made of the admission of the testimony of Mrs. Clark. This witness \ testified, 'after the defendant had closed his evidence in chief, that deceased was manager of her farm, on which appellant was a tenant, and that on one occasion, when a misunderstanding came up over the division of some pecans — she accusing appellant of not delivering enough pecans as rental — that appellant became very angry, and said that whoever told her that-was not her share of the pecans had lied. In this connection, she also stated that appellant insisted that deceased was the one who was causing him this trouble. The only persons present at this conversation were appellant, deceased, and the witness. She further said that appellant was more than angry; that his eyes flashed, and he clenched his hands. Appellant was on trial for murder, and evidence tending to show enmity, or former grudges on his part against deceased, was admissible. We think such was evidently the purpose and tendency of said testimony. At the request of appellant, the trial court instructed the jury not to ■consider any testimony of this witness to the effect that appellant was not giving her the amount of pecans to which she thought herself entitled. If appellant desired to introduce any evidence upon this matter, he had the right so to do; and it does not appear that the trial court refused to permit him this privilege. The: order of testimony is not fixed by ironclad rules under our practice, and is confided largely to tlie discretion of tlie trial courts; and tlieir actions regulating same -will ordinarily t>e upheld, unless by some unusual variance-from the customary procedure- some injury appears probable— ■which is not the fact in the instant case.

Objection was also made to a statement in his argument, by the prosecuting attorney, to the effect that one of appellant’s attorneys went out to the scene of the homicide with certain witnesses, and pointed out various places, and got said parties to mate certain tests. It appears from the qualification affixed to this bill that, as soon as said statement was made, one of appellant’s attorneys named therein arose and objected, for the reason that he was never out at such place. At once, the attorney prosecuting promptly retracted said statement, telling the jury that same was based on the fact that the testimony showed that an attorney for the defendant was out at said place, conducting said investigation for the defendant, but that, if this one of defendant’s attorneys said he was not there, he accepted his word and withdrew the statement. In this condition of the record, we see no injury possible in this matter.

Nor do we think the argument set out in bill of exceptions No. 7, to the effect that the children of deceased were entitled to sympathy, such argument as would call for a reversal of the case. However, this bill, considered in the light of the court’s qualification, presents no objectionable matter. This is also true of his bill of exceptions No. 8. These bills were accepted by appellant, and are before us without objection to the court’s qualifications.

Complaint is also made of the fact that the trial court submitted the issue of murder. We do not think any error was thus committed. We are referred to no authority holding that, where one charged with murder is found guilty of manslaughter, the mere fact of the submission of the law of murder operates as any injury to the accused. No incorrect statement of'the law of murder or of manslaughter in the charge is here pointed out, by which we might be led to believe that the charge of the court could have had any evil effect in bringing about a conviction of the lower grade of homicide.

The evidence showed that appellant was armed with a pistol. He testified that deceased threw a rock at him shortly after their meeting, which struck him on the hand, causing pain and bloodshed; that deceased also then cursed him, and said he was going to his house and get his gun and come out and kill him; that when deceased started to the house he (appellant) pulled his pistol and shot. There were three shots fired. Deceased was shot twice in ^the back, and expired almost immediately. We are doubtful if self-defense was in the case. See Lynch v. State, 24 Tex. App. 864, 6 S. W. 190, 5 Am. St. Rep. 888; Bush v. State, 40 Tex. Cr. R. 543, 51 S. W. 238. But if such theory appeared, the court fully charged on same as possibly raised by the testimony of appellant, instructing the jury that said issue was to be determined from the standpoint of appellant alone, and fully applied the law to the facts as made by the testimony, including a charge on the right of one assailed to pursue his assailant.

The only eyewitness to the homicide, beside appellant and deceased, was the wife of deceased, and she testified that, when the last shot was fired, deceased was running away from appellant down the aisle of the cow barn, and that appellant was standing at the door shooting at him as he ran.

We have found no reversible error in this record, and the judgment of the* trial court will be affirmed.

On Motion for Rehearing.

The only contention made in appellant’s motion for rehearing is that the jury arrived at their verdict by lot, and that in declining to reverse for this, we were in error. In view of the insistence of appellant, we have again carefully examined the (facts" presented in support of this ground of his motion for new trial and the authorities cited by appellant.

Each of the 12 jurors appeared and gave testimony upon the presentation of said motion, and the trial court, in deciding this question of fact, held against the claim of appellant. It appears that only one of said jurors testified that it was his understanding that there was an agreement among them to be bound by the result of the addition of the several penalties each thought proper, and the division of this sum by 12. It appears that this was the only juror who testified, either in words or in effect, that this verdict was arrived at by lot, and that all of the others gave testimony opposed to this conclusion. We have carefully examined the testimony of said jurors, and therefrom it appears in substance that, a short time after retirement, they came to an agreement that appellant was guilty of manslaughter, and then engaged in an effort to reach an agreement as to the penalty to be fixed. It seems that most of the jurors favored five years, though some were for four, and one or two for three years. It was presently suggested, according to most of said testimony, that they add the various penalties favored, and divide the result by 12, as a basis for argument. This computation was made, and the result shown was fifty-three months, or four years and five months. According to the positive testimony of several of the jurors — and this was not denied or questioned by any of them— after such computation, the matter of penalty was -further discussed for several hours, and then some one suggested that they agree upon a verdict of four years. The foreman called the jury to order and put the question “that all who agree to a penalty of four years should hold up their hands,” and all held them up. While the Juror Friday said ’he did not remember coming to this agreement by holding up their hands, he testified positively that they all agreed 'on four years.. The testimony of this juror is quoted and referred to by appellant in his motion. It appears from this juror’s testimony that it was his understanding, after they all came to an agreement upon manslaughter, that they should put down the amount that each of them thought the penalty should be, divide it by 12, and the result should be their verdict; though he states that, after they put it down and added it up, they knocked off the five months, and made the penalty even four years. This juror said that he was originally for five ye'ars, but agreed to the four-year verdict rendered.

Looking to the law applicable to these facts, we find that it has been the invariable rule of this court to uphold findings made by the trial courts upon such fact issues as are submitted to them, unless it appear to us that such decision is manifestly wrong. See article 837, Vernon’s O. C. P. and authorities cited. As stated by the presiding judge of this court, in Ulrich v. State, 30 Tex. App. 63, 16 S. W. 770:

‘‘There was a conflict [in the evidence] as to the agreement in arriving at the, verdict. * * * There was a conflict in the evidence on the issue involved, and the court settled that conflict by overruling the motion. This he had the legal right and authority to do. The presumption obtains that the judgment is correct.”

This court would not hold the discretion of the trial court to have been abused in a ease where one juror testified that there was such an agreement, as is here contended for appellant, if the majority of the jurors testified that no such agreement was had. If it were conceded that Hr. Friday testified that such was his understanding, still, none of the other jurors agreeing with him as to such fact, and most of them being positive that there was no such agreement suggested by any one, we would be compelled, in accordance with our rule in such cases, to uphold the action of the trial court in overruling the motion. Each of the jurors testified positively that all of them agreed on the four-year penalty, which was fixed by the verdict. Appellant cites the Sanders Case, 45 Tex. Cr. R. 518, 78 S. W. 518, 108 Am. St. Rep. 973; the .Driver Case, 37 Tex. Cr. R. 160, 38 S. W. 1020; the Good Case, 66 S. W. 1099; the Good Case, 67 S. W. 102; the Brookman Case, 50 Tex. Cr. R. 277, 96 S. W. 928, 123 Am. St. Rep. 838; the White Case, 37 Tex. Cr. R. 651, 40 S. W. 789; and the Wood Case, 13 Tex. App. 135, 44 Am. Rep. 701. These, and many similar authorities, are cases in which the evidence adduced in support of the motion for new trial showed that there was an agreement on the part of the jury to abide by the result of the addition and division indulged in. In some of these cases, the facts showed that the exact quotient was not adhered to; but, it appearing that there was an agreement on the part of the jury to be bound by said quotient, this court held in those cases that some slight change after arriving at the quotient did not constitute any variance from the original illegal agreement. We fear appellant’s insistence in his motion is based on his failure to observe our statement in the original opinion:

“That the trial court .was warranted in concluding that the addition and division were not to be binding upon them (the jury), and it was not so in fact.”

Believing our former decision of the matter correct, and finding ourselves unable to agree with the contention of appellant, the motion for rehearing will be overruled. 
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