
    HICKOX v. STATE.
    (No. 7227.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.
    Rehearing Granted June 27, 1923.)
    1.Courts <S=»64(3) — Grand jury <g=»2 — General law relating to courts, inconsistent with later special laws, are not applicable.
    Since the rules governing the convening of terms of the courts and the formation of grand juries are the work of the Legislature and subject to change by the Legislature, the provisions of the general laws relating to the convening of district courts generally, or to the formation of grand juries generally, which are in necessary conflict with the provisions of the Law of 1905 (Code Cr. Proc. 1911, arts, 95-97), governing the calling of special terms and the convening of grand juries at such special terms, are not applicable to special terms.
    2. Homicide <gs=>300(7) — Evidence held riot to require charge on self-defense against' attempted execution of threats.
    In a prosecution for homicide occurring during a fight between deceased and one of defendant’s sons, evidence of general threats by deceased after a difficulty with another son of defendant over the taking of a horse, apparently did not refer to defendant or to the son engaged in the fight, and therefore did not warrant an instruction on self-defense against the attempted execution of threats by deceased.
    3. Homicide <S=»30I — Evidence held to authorize charge on self-defense against apparent danger to defendant’s son.
    Evidence that deceased and defendant’s son were engaged in a fight just before the homicide, and that defendant’s son had told deceased he must not get that gun, warranted the court in giving an instruction on the right of defendant to defend his son against apparent danger of death or serious bodily injury.
    4. Witnesses <§=>277 (2) — Cross-examination as to cause of threats claimed to justify defendant carrying pistol held proper.
    Where defendant had testified he carried a pistol to the dance where the killing occurred, because of threats made against him by another party, it was proper for the prosecution to cross-examine him as to the reason for the threats, as a result of which defendant stated it was because of a difficulty with that person’s father in which he had to kill him.
    5. Criminal law <S=»I179(4(2) — Question asked accused as to his record for shooting held not to require reversal.
    A conviction for homicide need not be reversed because accused was asked if his entire record of shooting was not in the back, to which he replied he did not know he had a record for shooting, before his counsel objected to the question.
    6. Criminal law <g=olO0l (8) —Statements in brief but not in bill of exceptions cannot be considered.
    Where'the bill of exceptions showed a reference by the prosecuting attorney to a skeleton in the closet, and a question asked a witness if he had a brother named Ben, to both of. which the court sustained objections, statements of facts appearing in the brief with reference to such bills of exception, but not shown by the bills themselves, cannot be considered.
    7. Criminal law <S=»1166'/2(12)— Statement to jury defendant could- reverse case if they separated held not to require reversal.
    A statement made by the court to the jury after they were sworn and before any evidence was introduced, to the effect that defendant could reverse the case if they separated, was not such misconduct of the court as to require a reversal.
    
      8. Criminal law <©=o656 (9) — Giving forms of verdict to jury held not to indicate court’s belief in guilt.
    The fact that the court gave the jury five forms of verdict, including a verdict of not guilty, cannot be construed as an intimation on the part of the court that he thought defendant guilty.
    9. Criminal law <©=»798½ — 1Court should not furnish jurors forms for thieir verdict.
    The practice of the trial court furnishing the jurors with forms of verdict, the one of which agreeing with their verdict they were to fill out, is not to be commended.
    10. Criminal law <©=>723(1) — Counsel's statement result of killing was to leave a widow and an unborn child’ without a father held not erroneous.
    A bill of exceptions showing that prosecuting attorney stated in his argument that the result of the killing was to leave a widow and an unborn child without a father, without showing that those facts were not in evidence, does not show error, since a reference to them in argument if they were in evidence was proper.
    11. Criminal law <©=>| 171 (3) — Argument of prosecutor held not materially prejudicial.
    In a prosecution for homicide, where the evidence both for the state and defendant showed that a few days previous defendant’s son' had taken a horse from the custody of deceased, and, when deceased and the sheriff followed him, had first denied the taking and then claimed it was a mistake, it was not prejudicial error for the prosecuting attorney to state he had had a great deal of experience in trying theft cases and usually when you get one dead to rights, they will get up some defense of mistake in order to escape.
    12. Criminal law <©=3720(9) — Argument suggesting proper experiment is not erroneous.
    In a prosecution for murder, where defendant’s evidence tended to show deceased ’ had a pistol in his boot leg, it was not improper argument for the prosecuting attorney to state that the boots were in evidence and to challenge the defense to let the jury take them into the jury room or to bring in a man of the size of deceased, and test whether a pistol could be placed in them when they were worn as deceased was wearing them.
    On Motion for Rehearing.
    13. Grand jury <©=318 — Objection to grand juror defendant had no opportunity to challenge may be raised by motion to quash.
    If accused was prevented from challenging a grand juror in limine, as provided in Code Or. Proc. 1911, art. 409, the objection to the juror would be available upon motion to quash the indictment.
    14. Criminal law <©=>1166(2)— Accused cannot complain he bad no opportunity to challenge grand juror .without showing ground for challenge.
    Accused cannot successfully complain that he was deprived, by the method of calling a special term and the formation of the grand jury, of the right given him by Code Cr. Proc. 1911, arts. 409, 412,. 413, to challenge the grand jury without showing he had a ground of challenge to one or more of the jurors.
    15. Homicide <©=3187 — Evidence of act of deceased before defendant appeared held not incompetent as expression of innocent motive.
    In a prosecution for homicide, where accused claimed self-defense, evidence that before accused or his son, with whom the trouble-began, entered the building, deceased, who was-in the building attending a dance, walked across to the corner near the door to get a drink, shortly after .which defendant’s son entered by that door and the trouble immediately began, was not incompetent as evidence of an expression by deceased of an innocent motive unknown to defendant, though it might have been so construed if defendant or his son had been in the building before deceased crossed the room.
    16. Criminal law <©=3930 — New trial not granted for demonstration by spectators promptly suppressed by court.
    A new trial will not be granted in a criminal case because of a demonstration by spectators applauding counsel for the state, if that was promptly suppressed by the court.
    17. Criminal law <©=>930 — Uncontradicted affidavits as to demonstration not suppressed by court held to require reversal.
    Uncontradicted affidavits on behalf of ae-' cused, in support of his motion for a new-trial, that the spectators made a violent demonstration of their approval of an argument of the prosecuting attorney, which was not suppressed in any way by the court, entitles defendant to a reversal of the conviction.
    18. Indictment and information <©=>11 (2)— Order of presentment held insufficient.
    Under Code Cr. Proc. 19U, art. 446, requiring the fact of presentment to be entered on the minutes, noting the style of the action, and the file number of the indictment, a notation of presentment of an indictment for murder, without stating the style of the ease or the file number, though defendant’s name might, have been' also entered because he was in jail at the time, was insufficient compliance with the statute.
    Appeal from District Court, Tom G-reen. County; C. E. Dubois, Judge.
    T. Hickox was convicted of murder, and he appeals.
    Reversed and remanded.
    W. A. Anderson, of San Angelo, and Snod-grass & Diebrell, of Coleman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Tom Green county of murder, and his punishment fixed at confinement in the penitentiary for life.

Appellant’s complaint of the manner-of the calling of the special term of the district court of Upton county, at which he was ■ indicted, and of the formation of the grand jury, but present matters that in one form •or another have often been before this court and decided adversely to his contentions. The rules governing the convening of regular terms of the courts and the formation •of grand juries in such case are but the work ■of the Legislature. No Legislature can so make rules as that a later one may not •change them. The lawmakers in 1905 enacted statutes governing the calling of special terms of district courts, the convening of grand juries, the trial of cases, etc., at such special terms, and providing for the repeal ■of all laws inconsistent therewith. Articles 95-97, c. 3, tit. 2, C. C. P., are part of said act. The judge of the court in such case ■does not have to give notice, and none of the provisions of the general laws relating to convening of district courts generally, or the formation of grand juries generally, upon which reliance is had by appellant, can avail where same are in necessary conflict with said provisions of the act of 1905. The decision most relied on by appellant in his brief is a dissenting opinion. The matter has been too often discussed to need more than reference to the cases which present the ■conclusions of this court about it from almost every angle. Ex parte Young, 49 Tex. Cr. R. 539, 95 S. W. 98; Ex parte Boyd, 50 Tex. Cr. R. 312, 96 S. W. 1079; Boyd v. Texas, 209 U. S. 539, 28 Sup. Ct. 570, 52 L. Ed. 917; McIntosh v. State, 56 Tex. Cr. R. 134, 120 S. W. 455; Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 196; Chant v. State, 73 Tex. Cr. E. 345, 166 S. W. 514; Wilson v. State, 87 Tex. Cr. R. 538, 223 S. W. 217; Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654; Newton v. State (Tex. Cr. App.) 247 S. W. 281.

We have carefully examined the facts in evidence and find nothing in same calling for a charge on, the law of self-defense against the attempted execution of threats by deceased. It is shown in testimony that some few days prior to the homicide Jim Hickox, a son of appellant, had, in the nighttime, taken a horse under the control of deceased and carried it away from the town of Eankin. The defensive theory about such taking was that it was by mistake, and that young Hickox had thought the horse belonged to a friend of his, and that he had put a pack upon it and gone some 15 miles out in the country and there turned the horse loose. It is also in testimony that, following this, ■deceased, accompanied by the sheriff, went out to a sheep camp where said Jim Hickox was, looking for the horse, and that when they first accosted him regarding it he denied the 'taking, but later admitted- it, and said that he thought the horse belonged to a friend of his. In the course of the conversation young Hickox said to deceased that he would not have done a white man- that way, and deceased struck him. According to the defense witnesses, on the night of the homicide and prior thereto, deceased made some general threats, but clearly same did not refer to appellant or to his son Tom, but evidently to Jim Hickox. This appears from the testimony of appellant himself. No special charges were asked presenting any such defensive theory as that under discussion.

The exceptions to the court’s charge are lengthy, but have all been carefully considered, and none are deemed of such character as that the matters pointed out were erroneous.

There was no dispute of the fact that, at the time he was killed, deceased and Tom Hickox, another son of appellant, had hold of each other and were scuffling or struggling across the floor, and Tom testified that deceased was trying to get a pistol, and appellant testified that he heard Tom say to deceased that he must not get that gun. Both deceased and Tom Hickox were young men, and the testimony further showed deceased to be active and muscular. The defense claimed that just before engaging in the struggle with Tom Hickox, deceased had assaulted appellant. The learned trial court submitted the law of the right of appellant to defend against danger, real or apparent, to his son Tom Hickox, and we find nothing in the cases of Brady v. State (Tex. Cr. App.) 65 S. W. 522; Hickey v. State, 45 Tex. Cr. R. 264,76 S. W. 930, or Lyons v. State, 71 Tex. Cr. R. 189, 159 S. W. 1073, which either in the facts or upon the law would sustain the contention that it was error in the instant case to charge the jury that, if deceased was making or about to make an attack on appellant or his son (Tom Hickox which, from the manner and character of it, and the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased, caused him to- have a reasonable expectation or fear of death or serious bodily injury to him or his son Tom, and that under such apprehension he did the shooting, they should acquit. We do not think the charge in this regard subject to any exception.

The killing took place at a public dance held in a garage. Appellant went to the place armed with a pistol.' On direct examination he asserted that his reason for having said pistol was because he had learned that one Charles Poland had made threats against him. On cross-examination he said that several years before this trouble he had been told of threats made by Poland and also a few weeks before he had heard of same. He admitted that he had seen Poland a number of times and had had no difficulty of any kind with him, and that Poland had made no attempt to execute any threats. The state pressed him to know why Poland should threaten him. The stenographic report of the testimony at this point is attached to the bill of exceptions, and shows the foHowing:

“Q. What was he threatening your life about? A. It was in regard to some of his relatives—his father.
“Q. What about his father? How was it in regard to his father? A. It was trouble that his father and myself had had.
“Q. What kind of trouble? A. It was a difficulty in which I had to kill him.”

We think the state was within its rights in cross-examining appellant on the matter of such threats. Both he and his son Tom went to said dance armed with pistols. According to the state’s theory appellant had been much angered at deceased following the assault by the latter upon young Jim Hickox, growing out of the horse transaction above referred to. It was in testimony that, after learning of said difficulty in a conversation with the sheriff, appellant said he did not think the sheriff should have let deceased beat up Jim, and told the sheriff he would learn the sorry son of a bitch how to beat up a boy, and that he wanted the sheriff to tell the deceased so. This was just a few days before the homicide, and the state’s theory was that appellant and his sons went armed to the place of the dance for the purpose of having a difficulty with deceased. The state’s testimony shows that deceased was conducting himself in a quiet, peaceable manner, and that just before the homicide Tom Hickox came up and proceeded to bring up the matter of the assault by deceased upon his brother, and grappled with deceased, and at this juncture appellant walked to where the men were struggling and around to the rear of deceased, pulled out his pistol and shot deceased in the back, killing him. In probing the reason for the threats claimed by appellant to have been communicated to him as made by Poland, offered in justification of the presence of a pistol had by him, the state asked appellant what kind of trouble he had had with Poland’s father, and appellant made the statement that “It was a difficulty in which I had to kill him.” This answer to the question asked him by the state cannot be held a basis for the objection made. We do not regard this matter as proof on the part of the state of a charge made against appellant at a time too remote to have any legitimate bearing upon any issue in the case. (The inquiry was directed at an ascertainment of a present matter claimed by appellant to furnish the reason for his having a pistol on his person on the night of the homicide.

It is also urged that the case should be reversed because the attorney cross-examining appellant asked him if his entire record of shooting was not in the back. Appellant replied that he did not know that he had a record. At this point appellant’s attorney objected, and the objection was sustained. The question was probably objectionable, but, no objection being interposed before the witness' answered, and especially inasmuch as the bill contains no showing of facts from which we might be apprised of the fact that appellant in truth had no record as a killer, and showing in some way the injurious character of the question, we would not be inclined to hold the matter of that materially injurious character ascribed to it by appellant.

Bill of exceptions No. 4 presents two objections—one seemingly to a statement of the attorney for the state, and one to a question asked witness Kilpatrick by said attorney which was not answered. Said attorney stated that he did not know there was a skeleton in the closet; the appellant objected to such statement and the court sustained the objection and instructed the jury not to consider the statement. The bill further shows that at another time during the cross-examination of such witness the attorney for the state asked him if he had a brother named Ben Kilpatrick. The court sustained objections to this. There is a complete lack of any showing in the bill of any facts supporting the theory of injury to appellant in either of the matters mentioned. Statements of facts appearing in the brief of appellant, not supported by anything in the record, cannot be considered by us in this connection.

Complaint is made of the fact that state witness Nevell testified on direct examination that he had a conversation with deceased; following which he was asked if, after said conversation, he and deceased went any where, to which he answered, ‘Yes.’ Later he was asked where they went after such conversation, and replied that they went to the west end of the building to a water faucet to get some water. Appellant was not present. We see nothing in Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 361, 203 S. W. 357, 2 A. L. R. 593, upon which could be based a claim for the rejection of such testimony.

In his general instructions to the jury at the beginning of the trial, among other things, the learned trial court told them that they must remain together, that if they separated the defendant could reverse the case. This is set up as misconduct of the court. It appears that this occurred before any evidence was introduced. We do not think the statement should have been made but that it was not of that material character for which the case should be reversed.

It is also complained that the court gave to the jury, after reading them the charge, five forms of verdicts, including not guilty, and guilty of murder, etc., telling them that when they had come to a decision they would fill out that form which agreed with their verdict. This does not seem susceptible of the construction that it was an intimation on the part of the court that he thought appellant was guilty. We do not think such practice should be commended.

A number of special charges were asked, •some of which were given. No good purpose would be served by setting out those refused, all of which have been examined, and the refusal of none is believed to present error.

By bill of exceptions No. 11 it is shown that an exception was taken to the statement in the closing argument for the state that the result of the killing was to leave a widow and an unborn child without a father. If these facts were in evidence we see no reasonable objection to reference thereto in argument. The bill does not show that said facts were not in testimony.

Bill of exceptions No. 12 complains of the refusal of the court below to instruct the jury to disregard the statement in the closing argument for the state that the attorney had had a great deal of experience in trying theft cases and usually when you get one dead to rights they will get up some defense of mistake in order to escape. Evidently this argument had reference to the attitude of the defense witness Jim Hickox. We have already referred to the fact that it was in testimony that said witness had taken a horse from the custody of deceased at night and had carried him away. It was also shown that following the disappearance of said horse deceased and the sheriff went to a sheep camp about 21 miles from Rankin, from which place the horse was taken, and that, after first denying his having taken said horse, Jim Hickox admitted taking him and said he thought it belonged to a Mexican friend of his, and that if the horse belonged to deceased, he was sorry and would return him; that his taking the horse was a mistake. Substantially these facts were testified to by Jim Hickox, a witness in this case. Under these facts we do not think the argument complained of to be materially prejudicial to this appellant.

The defense produced a witness who said that after the body of deceased was carried across the street from where he was killed, he saw a boy take a pistol out of the leg of one of the boots of deceased and go away with it. Many other witnesses who were around the body and examined it said they saw no pistol or weapon of any kind. It was in testimony that when shot deceased was in his shirt sleeves with his pants tucked in his boots. Tom Hickox testified for the defense that, as he was struggling with deceased just before appellant shot, deceased was trying to get to his boot leg. The attorney arguing the case for the state said that the boots of the deceased were offered in evidence and he challenged the defense to let the jury take them into the jury room if they wished, or to bring a man into the courtroom the size of deceased and let him test these boots as to whether a pistol could be placed in them when the trousers were in the boots as described by the witness. We are unable to conclude this to be prejudicial and unfair ■ argument. An experiment such as indicated in said argument would seem to have been proper if made during the introduction of testimony. We are cited to no authority holding such argument improper.-

Bill of exceptions No. 14 shows a requested charge whose refusal was proper, for the reason that such charge was not applicable or responsive to the argument actually made by the state’s attorney, as same is set out in the stenographic report thereof attached to said bill.

The unfortunate occurrence forming the basis of tnis prosecution and conviction was most fully developed, and the trial of appellant presented hotly contested issues. Many matters are set up in the motion for new trial regarding which no testimony was heard by the trial judge. The state controverted the truth of the allegations in said motion relating to occurrences in the courtroom during the argument of the case. No evidence having been introduced, and the matters having been submitted to the trial judge and passed upon by him, we are not prepared to say that his action was any abuse of his discretion in the matter.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We think our original opinion upon the manner of calling the special term of court in Upton county, and the formation of the grand jury, sufficient without further elaboration save upon one point stressed in the motion for rehearing, viz. that the special term having been called and the grand jury organized without notice to appellant or his attorneys, no opportunity was had to challenge the array of grand jurors or any particular grand juror as provided in articles 409-, 412 and 413 of our Code of Criminal Procedure. Without setting them out here, it will be observed that each of articles 412 and 413 specify the grounds which must exist before the challenge In either case will be available to an accused. If the calling of the special term of court without notice prevented appellant from challenging in limine as required by article 409 (supra) there exists no doubt in our mind under the authority of Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Id., 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; MeCline v. State, 64 Tex. Cr. R. 19, 141 S. W. 977; and Robinson v. State, 92 Tex. Cr. R. 527, 244 S. W. 599, that the same objection would have been available upon motion to quash the indictment. But before an injury is shown two things must be made to appear: (a) That the right to challenge, or otherwise object, was denied; and (b) that a ground of challenge existed. For appellant to assert that a judgment against him should be reversed simply because he was denied an opportunity to challenge, if in fact he had no ground therefor, would find no support in reason or law. There being no attempt to show that any ground for objection or challenge to the grand jury as a whole or to any particular member thereof in fact existed, this ground of the motion for rehearing is without merit.

Appellant urgently contends that we were wrong in not holding erroneous the admission of the statement of the witness Nevell that he and deceased had gone to the faucet to get a drink of water a short time before the difficulty occurred, upon the ground that it was the expression in the presence of the jury of an innocent motive on the part of deceased, of which appellant was unaware, and therefore injurious to him from the standpoint of the defensive issue. Many authorities are cited by appellant in his brief which announce a correct proposition of law that has long been recognized by this court, that the words or acts of deceased showing an innocent intention or motive but undisclosed to accused are wrongfully permitted in evidence, when they in any way impinge upon his right of self-defense. Under the facts in the record now before us we cannot agree that the rule has in any way been violated. The killing occurred in a garage 80 feet long and 40 feet wide. There was a door in the south side of the building and also in the east and west ends, but none in the north side. The witness Nevell testified that immediately before the killing he and deceased went from a point about the middle of the north wall to the southwest comer of the garage where the water faucet was situated to get some water. Neither appellant nor his son (Tom Hickox) were in the building at that time, because they each testified that they afterwards came in at the west door of the garage. Tom Hickox testified that he came in at said door and was himself going to get a drink of water when he came in contact with deceased, and the fight which resulted in deceased’s death started. Appellant testified that he came in at the west door after the fight was in progress. If either of the Hick-ox’s had been in the corner of the building near which the water faucet was situated at the time Nevell and deceased started to that portion of the building we can readily understand how the testimony that they were going after water might have been hurtful under appellant’s theory of the case; but, deceased and the witness having reached the point where the fight started at a time when both the Hickox’s were out of the building, we fail to understand in what way it could have injuriously afliected appellant’s interests.

The twenty-third ground of appellant’s motion for new trial is based upon the conduct of the spectators in the courthouse which appellant asserts resulted in influencing and prejudicing by public opinion the jury against appellant. Subdivisions A and B of said twenty-third paragraph are as follows:

“(a) That during the introduction of testimony the courthouse was usually fairly well filled with spectators; that during the introduction of testimony when the state would' apparently make a point in its favor in the-argument on the admissibility of testimony, at various times scattered through the trial, the audience would cheer; that the court would at each time call upon the audience to refrain from applauding; that on the third or fourth, occasion of such applause said applause became.so general and noisy in the courtroom, that the court stated, in substance, after rapping loudly and finally securing quiet so he could be heard, that, if the crowd made any further-demonstration and did not keep quiet, he would be compelled to clear the courtroom and1 put the audience out of the room; -that thereafter during the introduction of testimony, there was a slight ripple of applause only once- or twice; that nothing was said by the court to the jury regarding same.
“(b) That after the closing of the evidence in the case, E. L. Snodgrass, attorney for the defendant, was making the closing argument for the defendant; said.attorney for defendant, stated, in substance, in referring to the deceased, that the deceased was at the dance-comfortably full of bootleg whisky, or some-other kind of whisky; whereupon Attorney Thurmond, a private prosecuting attorney, who-closed the argument, and who was sitting just behind said Snodgrass at a table, interrupted-said Snodgrass, saying in substance, ‘There is-not a particle of . testimony here to show that the deceased had any whisky or had drank a. drop of whisky;’ whereupon, said Snodgrass-stated, in substance, ‘There is testimony in-the record; one witness testified deceased1 asked him to take a drink with him, and other witnesses testified he was intoxicated. He, therefore, not only was drinking, but had whis-ky and was inviting other people to drink it.’ Thereupon the wife of the deceased, who was-sitting behind the railing within the bar some ten or fifteen feet behind said Attorney Snod-grass, arose from her seat, and screaming in a loud broken voice, ‘It’s a lie, it’s a lie,’ and started in the direction of Snodgrass swinging her arms over her head exclaiming, ‘Let me get to that old thing. I’ll kill him! I’ll kill him!’ She made a step or two and staggered and parties threw their arms around her, and' she was assisted out of the courtroom sobbing and crying. During all this time said Snod-grass was standing before the jury saying nothing, waiting for the excitement to subside to resume his argument. The jury was-not admonished in any way concerning this-matter.”

Subdivision O of said paragraph 23 will be condensed by us. Mr. Thurmond, one of the-attorneys representing the prosecution, while-making the closing argument for ⅞6 state, used this language:

“Judge Snodgrass related to you that when-he was but twenty-one years of age he came to Coleman and there he met this defendant, and that he has been his friend ever since then. I became acquainted with this deceased when the people of my community gathered together at the train — ”

At this point he was interrupted by an objection from Judge Snodgrass that there was no evidence authorizing Mr. Thurmond to make the statement he was about to make and challenged his right to do so, whereupon Mr. Thurmond retorted that neither was there testimony in the case authorizing Snod-grass to tell the jury, how long he had been acquainted with appellant, to which Mr. Snodgrass assented. Mr. Thurmond then retorted:

“Then you are willing to do something before the jury and are unwilling to accord the state the same privilege?”

The motion for new trial further alleges that after this statement from Thurmond the audience applauded—

“by stamping their feet, clapping their hands, whistling, yelling, and making a terrific noise and demonstration against the defendant, which demonstration was tremendously vociferous and evidenced unmistakably a strong sentiment and prejudice against this defendant.”
The motion further recites:
“In this connection, F. L. Snodgrass, attorney for defendant, specially states and says that in his 37 years of experience in the practice of law at the bar, this demonstration exceeded by far any he had ever witnessed on any previous occasion, and was equal in noise for the time same lasted to any demonstration he had ever witnessed in any political discussion in any courthouse in Texas.
“W. A. Anderson specially says he has practiced law for 31 years and has participated in the trial of a great many cases, but has never before witnessed such demonstration in the trial of any ease of such sentiment and prejudice against a man on trial; that it was more like a demonstration at a ball game or horse race.
“The jury was not admonished in any way concerning said matter.”

It is further averred as a part of said, paragraph 23 that appellant and his attorneys were ignorant of the prejudice manifested by the audience until the same was exhibited during the trial, and alleges that if they had known of the existence of such prejudice they would have applied for a change of venue on the ground of such prejudice. This paragraph of the motion for new trial is supported by the affidavits of F. L. Snodgrass and W. A. Anderson, who state upon oath that the allegations in said paragraph are true and correct. The state filed a controversion to this paragraph of the motion, but supported it only by the affidavits of the jurors who sat during the trial of the case. They in no way controvert the truthfulness of the matters alleged in that ground of the motion, but in fact their affidavits in effect admit much therein asserted. They claim that the applause on the part of the audience during the closing argument of Mr. Thurmond was not in any way considered by them in arriving at their verdict and had no influence upon them, and that the conduct of the widow of the deceased likewise had no influence upon them. In the controversion filed by the state,- the court is asked to hear evidence upon the matters asserted. The original order of the court upon the motion is silent upon this point, but a corrected order now appears in a supplemental transcript which shows that the court in fact heard no evidence upon that ground of the motion but acted solely upon the affidavits of the state and appellant. We are now confronted with this condition; the matter alleged by appellant as to the misconduct of the audience is supported by. the affidavits attached thereto; the truth of this is in no way controverted by the state. We attach little importance to the affidavits of the jurors as to what may or may not have influenced them in arriving at their verdict. A new trial should not be granted because the audience applauded counsel for the state when the demonstration was promptly suppressed by the court. Parker v. State, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967. But the motion avers that the audience was in no way reprimanded by the court or the applause suppressed incident to Mr. Thurmond’s argument, and this assertion is verified by the affidavits referred to. If the audience was only expressing their approval of the speech of their favorite attorney it might well have been mistaken by the jury for a demonstration in favor of the cause he represented and therefore against appellant, Our law never contemplated that a man should be tried for a grave offense involving his life or liberty under circumstances which appear to have existed during the instant trial. In the case of Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431, complaint was made that the bystanders applauded the argument of the district attorney. . The court explains in that case that when the applause occurred he commanded silence, which was obeyed, and he ordered the sheriff to arrest any parties so offending, and to prevent a repetition;. that such applause was principally in the gallery of the court room, and could not, for the moment, be controlled by the court or the sheriff, nor could it be ascertained afterwards who the offending parties were. Commenting upon this state of affairs, this court said:

“Such conduct in the trial of a case is certainly very reprehensible, and is calculated to greatly prejudice the rights of a defendant on trial with the jury; and when such conduct occurs it should be the duty of the court to use every means in his power to ascertain the guilty parties, and to visit upon them the severest punishment that the law authorizes; and even then it is doubtful whether such, action will withdraw from the jury the effect that may be produced upon them by the plaudits of a mob approving the sentiments announced by the prosecution. Where such conduct does occur, the judge should scan the record very carefully, and, if it is probable that the jury were influenced thereby, a new trial should be granted.”

In the instant case the state produces no evidence controverting the truth of the allegations as to what occurred during the course of the trial, while evidence was being introduced relative to applause of the spectators, nor as to that occurring during the argument of counsel representing the state. If such conduct did not occur as is alleged and verified, or if the same has been exaggerated, the state should have met the issue either by affidavits or proof. This it has not done. We are unwilling to permit a conviction to stand under circumstances revealed by the record in this cause. As to the ultimate guilt or innocence of appellant we are not concerned, but only that he have a fair trial. We are persuaded from the record that it is impossible for any man to have received a fair and impartial trial under the circumstances shown. The court should have sharply reprimanded the audience and at least given the jury to understand that such conduct was offensive to the orderly procedure of the trial; if this did not have the desired effect he should have promptly cleared the courtroom of spectators, if that was the only way to preserve order; if this could not be accomplished, then the defendant should have been promptly granted a new trial. What we have said has reference to the conduct of the public who attended the trial rather than to the regrettable incident produced by resentment of deceased’s widow at some statement of the attorney for the defense in his argument, although it is to be hoped this will not occur again.

The prosecution originated in Upton county. Before the order changing the venue was entered and before pleading to the merits of the case, a motion to quash the indictment was filed, on the ground, among others, that there was no sufficient order showing the presentment of the indictment. This part of the motion to quash was overlooked in our original opinion. The minutes of the special term of court were offered supporting this ground of the motion. They show the organization of the grand jury, and then proceed as follows:

“And after being sworn by the court as grand jurors and receiving the instructions of the court touching their duties as such, retired in care of the proper officer to enter upon their deliberations; then having returned into open court in a body and each member thereof having answered ‘present’ to his name as the same was called by the clerk of said court, presented in open court the following indictment: * * * Murder, * * * which was ordered by the court to be filed. Then reporting no further business before them were discharged by the court.”

No offer was made to correct the order of presentment, but the same appears in the bill of exception to the court’s refusal to quash as hereinbefore set out. Article 446, C. O. P., reads as follows:

“The fact of a presentment of indictment in open court by a grand jury shall be entered upon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody .or under bond.”

It will be observed that the foregoing article requires that there shall be entered upon the minutes of the court the file number of the indictment with the style of the criminal action, omitting the name of defendant unless he is in custody or under bond, but does not require that the offense shall be named.. The bill of exception recites that appellant was in jail at the time the indictment was returned against him, and there appears to be no reason why the provisions of article 446 were not carried out even to naming the accused. Prior to 1876 the article in question read as follows:

“The fact of a presentment of .an indictment in open court by the grand jury shall be entered upon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the offense charged.”

Many authorities will be found construing the article both prior to and since its amendment. Hardy v. State, 1 Tex. App. 556; Denton v. State, 3 Tex. App. 635; Cox v. State, 7 Tex. App. 495; English v. State (Tex. App.) 18 S. W. 679; Strong v. State, 18 Tex. App. 19; Rowlett v. State, 23. Tex. App. 197, 4 S. W. 582; Massie v. State, 52 Tex. Cr. R. 548, 107 S. W. 847. Other authorities may be found collated' in Vernon’s Crim. Stat. vol. 2, under said article 446, and in Branch’s Ann. Pen. Code under section 472, p. 245. Under the present statute it is not necessary for the minutes of the court to show the offense charged against an accused, and it was held in Massie (supra) to be surplusage to do so. It will therefore be seen that, so far as the record discloses, the only “presentment entry” shows a recital not necessary and omits entirely those things requisite to identification of the indictment as the one returned by the grand jury, viz. the file number of the indictment and the style of the criminal action, and in the instant case the name of the defendant could with propriety have been inserted.

We do not review at length the authorities referred to, but an examination of them will disclose that the entry in the present case is entirely insufficient. The word “murder” identifies nothing. It could apply to one person or one indictment as well as another; the number and style of the criminal accusation, however, would definitely fix the identity of and presentment of the indictment. Since the above decisions were rendered construing the article in question, the actual language of the statute has been re-enacted by the acts of 1879, 1895, and 1911. Notwithstanding the many decisions of this court construing the language of the said article 446, the Legislature has made no change therein, but in view of them it from time to time has reenacted the same.

We are not inclined to order a dismissal of the prosecution because of the incomplete “presentment entry” of the indictment in Upton county, but believe the cause should be remanded, with instructions to the court in Tom Green county to take such steps as may be found necessary under the facts relative to the entry in question. If the entry on the minutes be in fact sufficient, and it incorrectly appears in the record before us,

Hollingsworth v. State, 87 Tex. Cr. R. 399, 221 S. W. 978 will throw some light on the procedure.

For the errors discussed, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court is now reversed, and the cause remanded. 
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