
    HART v. STATE.
    (No. 8728.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.
    Rehearing Granted Oct. 14, 1925.)
    1. Homicide <&wkey;30O(3) — Charge on self-defense held properly refused as not correctly stating law.
    Charge that if deceased manifested intent to kill or seriously injure defendant by any act or gesture calculated to lead defendant to believe that his life was in danger, defendant had right to shoot deceased, etc., held, properly refused; impression of deceased’s acts on defendant’s mind and what defendant actually believed from his standpoint being -true test.
    2. Criminal law <&wkey;829 (5) — Refusal of charge on self-defense held not error.
    Refusal of charge that if deceased manifested intent to kill or seriously injure defendant by any act or gesture calculated to lead him to believe his life was in danger, he had right to shoot deceased, held, not error, where court gave broad and liberal charge on defendant’s right to act on appearances of danger at time of killing.
    On Motion for Rehearing.
    3. Homicide &wkey;>347— Judgment and sentence may be corrected to conform with verdict
    Where court instructed jury that defendant was charged with manslaughter, and jury found Mm guilty as charged and assessed penalty at five years in penitentiary, but court adjudged him guilty of murder and sentenced him to penitentiary for “not less than 5 nor more than 5 years,” Court of Criminal' Appeals, under Yernon’s Ann. Code Cr. Proc. 1916, art. 938, now article 847, Code Cr. Proc. 1925, may correct judgment and sentence to read that he was adjudged guilty of manslaughter, and that he be confined in penitentiary not less than 2 nor more than 5 years.
    4. Jury <g=»65 — Placing in jury wheel, after time for filling it, names erroneously omitted, held not error.
    Where names of persons entitled to claim exemption from jury service were mistakenly omitted from jury wheel between August 1 and August 15 by officers charged by Rev. St. art. 5152, with duty of filling it, placing their names in wheel by court’s direction on January 12 following was not error, especially in view of article 5158, authorizing refilling or replacement of wheel, if original wheel or its contents be lost or destroyed.
    5. Criminal law &wkey;>7l4 — Reference by state’s counsel to conviction of manslaughter on former trial and reversal for technicality held prejudicial error.
    In manslaughter trial, state’s attorney’s argument that state was not prosecuting defendant for murder because jury had convicted him of manslaughter on former trial and case was reversed solely on technicality held, violative of Vernon’s Ann. Code Or. Proe. 1916, art. 843, as susceptible of construction by jury that former conviction would be presumption of guilt and calculated to prejudice defendant’s case, though made in reply to argument of defendant’s counsel that- defendant had been acquit-' ted of murder and could not be convicted of more than manslaughter.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Earl Hart was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was indicted and tried in the.district court of Eastland county and convicted of manslaughter and his punishment assessed at confinement in the penitentiary for a term of 5 years. This is the second appeal to this court. The first appeal will be found in 95 Tex. Cr. R. 566, 255 S. W. 414.

The appellant, through his counsel, complains of the action of the court in refusing to quash the jury panel in this case. It appears from said motion to quash that the contention is made that the officers upon whom the law imposes the duty of filling the jury wheel between the 1st and 15th of August of each year, by their acts rendered the jury drawn from said wheel unlawful because there were additional names of approximately 300 or 400 voters placed in said wheel on the 12th day of January, 1924. The court, in qualifying appellant’s bill in this respect, states that when the jury wheel was filled in August, 1923, under a misapprehension of what the law required, the names of certain individuals exempt under the law from jury service were not placed'in the wheel, and when this court handed down its decision in the case of State of Texas v. Atwood, 96 Tex. Cr. R. 249, 257 S. W. 563, holding that the jury wheel had been improperly filled, in that such names had not gone into the jury wheel, that the judges of the Eighty-Eighth and -Ninety-First district courts entered orders upon the minutes of the respective courts directing the officers authorized under the law to meet-and place the names of all such jurors exempt under the law in the jury wheel, which was done on the 12th day of January, 1924, It is contended by appellant that, by' reason of adding said additional names in said jury wheel that said officers and said courts connected therewith violated the acts of the Legislature relative to filling said wheel, and that same could only be done in August as above stated. This court in the Knott Case, 274 S. W. 978, and in the case of McNeal v. State, 274 S. W. 981, recently handed down, held that the jury wheel could be filled at other and different times than between the 1st and 15th of August, and that there was no error in permitting same to be filled upon.other dates when it is ascertained that it is improperly filled in August. We fail to see any distinction between the cases, supra, in principle and the instant case. It certainly cannot be denied that if the wheel had been improperly filled in August and thereafter it could be properly filled upon other dates as in the McNeal Case, then in the instant ease the additional names left out could be added without affecting the validity of the wheel. In view of the McNeal Case and the Knott Case, we are of the opinion that there is no error in the action of the jury commission in the instant case.

The appellant also complains of the court’s refusal to give his special charge to the jury as set out in bills of exception Nos. 2 and 3, to the effect that if the jury believed from the testimony in the case that at and just prior to the time of the homicide the deceased was lying in wait for the defendant * * ' * with the intention of killing the defendant or inflicting serious bodily injury upon the defendant, and manifested any intentions of carrying out such hostile purpose, if any, by any act or gesture calculated to lead the defendant to believe that his life was in danger, * * * then the defendant would have the right to shoot deceased and continue to shoot so long a time as necessary to insure his own safety, etc. We do not believe there is any error in the refusal of the court to give this charge for the reason that said charge is not the law, because same is limited to the manifestations and intentions of the deceased, and to the acts and gestures of the deceased calculated to lead the defendant to believe that his life was in danger. In such cases, the law does not base the action of the defendant on the manifestations and intentions of the deceased at all, but it is based on the impression of the acts of the deceased on the mind of the defendant, and it is not based on what is calculated to lead the defendant to believe, but what the defendant actually does believe from his standpoint. This charge not being a proper charge, there is no error in the court’s refusing the same; besides, the court gave a broad and liberal charge to the jury on the defendant’s right to act on the appearances of the danger at the time of the killing.

The court submitted this case to the jury on manslaughter, and the jury returned their verdict in response thereto assessing the penalty at 5 years in the penitentiary, and the court in the judgment and in the sentence erroneously stated that the jury found defendant guilty of murder, though the recognizance properly states the verdict was for manslaughter, and the sentence should have been not less than 2 nor more than 5 years. The judgment and sentence is hereby corrected to read that defendant was convicted of and adjudged guilty of manslaughter instead of murder, and that he be confined in the penitentiary not less than 2 nor more than 5 years.

After a careful examination of the entire record, we are of the opinion that there is no reversible error shown, and the judgment of the trial court should be reformed and affirmed, and it is accordingly so ordered.

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.

MORROW, P. J.

Appellant was indicted for murder, and on the former trial was convicted of manslaughter, with punishment assessed at confinement in the penitentiary for a period of two years. The appeal resulted in a reversal. See 95 Tex. Cr. R. 566, 255 S. W. 414.

On the present trial the court instructed the jury thus:

“The defendant stands charged by indictment with the offense of manslaughter, alleged to have, been committed in the county of Eastland and state of Texas, on or about .the 23d day of May, 1922. To this charge the defendant has pleaded ‘not guilty.’ ”

The verdict read:

“We, the jury, find the defendant guilty as charged, and assess his punishment at 5 years in the state penitentiary.”

The judgment and sentence declare the appellant guilty of the offense of “murder,” and assess his punishment at confinement in the penitentiary for a term of “not less than 5 nor more than 5 years.” The judgment and sentence thus entered are out of harmony with the verdict of the jury and with the law. It was manifest from the charge of the court that the appellant was on trial for the offense of manslaughter. The court instructed the jury that such was the “charge” against the appellant. Responding to this instruction, the jury found the appellant guilty as charged, and assessed his penalty at confinement in the penitentiary for a period of 5 years. Upon this verdict the court should have entered judgment and sentence against the appellant for the offense of manslaughter, for which his confinement in the penitentiary should be for a period of not less than 2 nor more than 5 years. Under article 938, C. C. P. Vernon’s Tex. Crim. Stat. 1916, vol. 2, pp. 900, 901, are cited many decisions of this court asserting the exercise of its authority to correct the judgment and sentence so that they may correspond with the verdict rendered by the jury. This authority comes from the express language of article 938, supra, now article 847, wherein it is said:

“The Court of Criminal Appeals *. * * may reform and correct the judgment, as the law and nature of the case may require.”

Among the more recent cases upon the subject are Wright v. State, 84 Tex. Cr. R. 352, 207 S. W. 99. For earlier cases, see Hill v. State, 10 Tex. App. 673; also collation of cases in Vernon’s Tex. Crim. Stat. vol. 2, p. 900, subd. 9. In correcting the judgment and sentence in the present case so as to conform with the verdict, the action of the court was within the authority conferred by statute.

In filling the jury wheel between the 1st and 15th of August, 1923,- the officers charged with that duty, by virtue of article 5152 of the Civil Statutes, omitted therefrom the names of persons who should have been included. This was done apparently upon' a mistake or misconception upon the part of the officers in their believing that they had a right to exclude from the jury wheel those classes of persons who, under the law, were entitled to claim exemption from jury servr ice. After the 15th of August, discovering the error in making the omission, the names-of those persons who had been omitted were, under the discretion of the court, placed in the wheel, and from the wheel thus supplemented the jury in the present case was drawn. The action of the officers in the two instances resulted in putting into the jury wheel all of the names which the law authorized and required.

In Atwood’s Case, 96 Tex. Cr. R. 249, 257 S. W. 563, the facts revealed that in filling the jury wheel the officers charged with that duty, as in the present case failed to place in the wheel the names of a number of persons who were qualified for jury service. From the wheel thus incompletely filled the venire was drawn. This court held that the venire should have been quashed. In Knott’s Case (Tex. Cr. App.) 274 S. W. 978, the facts were similar to those in the present ease. It was held that the court properly refused to quash the .venire panel. To us, the distinction seems obvious in that in one case the venire was drawn from a wheel which did not contain the names which the law demanded, and in the Knott Case, as .in this one, the wheel did contain the names which the law required. The sole fault, as we conceive it, to be found in the procedure reflected by the present case is that the wheel was filled after the 15th day of August instead of prior to that date. We believe that there is no warrant for holding the legislative act so rigid as to prevent the correction of the mistake by the officers in omitting a part of the names from the list. The venire was not drawn from the wheel until after the mistake had been corrected, and no injury is otherwise shown or suggested by the record. Even if the legislative act was so unbending as to bear the construction that the wheel could be legally filled at no time after the 15th day of August, or if not filled at that time the jury list, contained therein, though-otherwise such as the law demanded, could not be used, still, in the present case, the action of the court would be upheld under article 5158 of the Revised Civil Statutes of 1911, wherein authority is given to remedy the loss or destruction of a jury wheel or its contents by refilling it or providing another in its stead. See Knott v. State, supra, and McNeal v. State (Tex. Cr. App.) 274 S. W. 981.

In our former opinion, we failed to take note of bill of exceptions No. 4, from which it appears that the attorney for.the state, in his argument, used the following language:

“They ask why we are not prosecuting this defendant for murder, and I am going to tell you why: On a former trial of this case, a jury convicted this defendant of manslaughter and gave him a term in the penitentiary, and the case was reversed by the Court of Criminal Appeals solely on a technicality.”

Prompt exception was interposed, and a verbal request to instruct the jury to disregard the remarks was made and overruled. In approving the bill of exceptions the court said that, as he remembered the facts, the appellant’s attorney in his argument told the jury that they could only convict the defendant of manslaughter; that he was not on trial for murder, but had been acquitted of that offense; that the remarks of which complaint is made were in response to the argument mentioned. Article 848, C. C. P., in Vernon’s Tex. Grim. Stat. vol. 2, p.- 808, reads thus:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former convictions shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.”

We are constrained to regard the remarks complained of as violative of the letter and spirit of the statute. It occurs to us susceptible of the construction by the jury that the former conviction of manslaughter would be a presumption of guilt in the present trial. Moreover, in stating to the jury that the case was reversed upon a technicality, the argument was calculated to prejudice the appellant’s case by the jury. It was not improper to inform the jury that the appellant had been acquitted of murder. See West v. State, 7 Tex. App. 150; Pharr v. State, 10 Tex. App. 485. The statement by appellant’s counsel that the appellant had been- acquitted of murder and could not be convicted of more than manslaughter did not, in our judgment, warrant the response that was made to it. Authorities in point are cited in Vernon’s Tex. Crim. Stat. vol. 2, p. 809. Among them are Benson v. State, 56 Tex. Cr. R. 52, 118 S. W. 1049; Kirksey v. State, 58 Tex. Cr. R. 188, 125 S. W. 15; Mann v. State, 84 Tex. Cr. R. 109, 204 S. W. 434; Pierce v. State, 87 Tex. Cr. R. 379, 222 S. W. 565; Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145.

Because of the argument mentioned, it is our opinion that a new trial should have been awarded. For that reason, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed, and the cause is remanded. 
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