
    MOORE v. STATE.
    (No. 5347.)
    (Court of Criminal Appeals of Texas.
    June 4, 1919.
    Rehearing Denied June 27, 1919.)
    1. Criminal Law, <⅞=1160½(6) — Harmless Error — Jury. ' .
    Where, although the environment of a jur- or was such as to have given him opportunity to have formed some opinion touching the merits of the case, nothing was disclosed which would have made him subject to challenge for cause, and he was excused on peremptory challenge and no objectionable juror was forced on accused, and he failed to exhaust his peremptory challenges, no error was shown.
    2. Criminal Law <§=1166½ (8) — Harmless Error — Jury. '
    Where venireman was excused upon peremptory challenge, and the court offered to restore the challenge to accused, no error appeared, even though the juror was subject to challenge for cause.
    3-. Witnesses <3=277(2) — Cross-Examination oi? Accused.
    Where’ one accused of murder was asked, on cross-examination, if he shot in self-defense when he shot deceased while crawling on his hands and knees and begging accused not to continue to shoot him, the eyewitnesses for the state having testified the shooting took place under these circumstances, and accused claiming that all his shots were in self-defense, such cross-examination was germane and not objectionable.
    4. Criminal Law <3=1170(3) — .Exclusion of Evidence — Subsequent Admission.
    A bill relating to the exclusion of testimony, which was subsequently admitted, disclosed no error.
    5. Witnesses <§=240(4) — Leading- Questions.
    An inquiry as to the appearance of one accused of murder, whether excited or irritated, was not objectionable as leading.
    6. Criminal Law <§=918(10,11) — New Trial —Swearing Special Veniremen.
    The special veniremen having been sworn individually as they were impaneled, the’ failure to swear them en masse was an irregularity not available when raised for the first time on motion for a new trial.
    7. Criminal Law <§=1.177 — Harmless Error —Suspended Sentence.
    Appellant having been convicted of murder, and the suspended sentence laty not applying to that offense, the holding of the trial court that his application for submission of issue as to suspended sentence came too late could have resulted in no harm.
    8. Homicide <§=276 — Self-Defense — Provoking Difficulty — Jury Question.
    In murder trial the question whether accused intended to provoke deceased to assault him, and whether what accused did and said was reasonably calculated to so provoke deceased, held for the jury, despite accused’s statement that he had no intention to kill or to provoke the difficulty with deceased.
    9. Homicide <§=271 — Jury Question.
    In murder trial the question whether accused’s mind was in a condition rendering him incapable of cool reflection held for the jury.
    10. Witnesses <§=240(4) — Leading Question.
    In murder trial the question whether deceased was looking in accused’s direction was not objectionable as leading, it not suggesting the answer desired.
    11. Criminal Law <§=684 — Order of Evidence — Rebuttal.
    The receipt of evidence in rebuttal, though out of its order, is discretionary.
    12. Criminal Law <§=823(6) — Homicide <§= 300(12) — Self-Defense—Instructions.
    A charge on manslaughter was hot unduly restrictive of accused’s right of self-defense where the reference in such charge to self-defense was not an attempt to define the law of self-defense’, but to direct the jury’s attention to the fact that they should keep the law and facts as to self-defense in mind for accused’s benefit, and the law of self-defense was fully given in other paragraphs of the charge.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    W. D. Moore was convicted of murder, and appeals.
    Affirmed.
    Baskett & De Lee, of Dallas, for appellant.
    T. É. Ridgell, of Rockwall, and E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, (and his ■ punishment fixed at five years’ confinement in the penitentiary. .

The environment of the juror mentioned in hill of exceptions No. 1 was such as to have given him opportunity to have formed some opinion touching the merits of the case. Nothing, however, is disclosed which would have made him subject to challenge for cause. He was excused on peremptory challenge. No objectionable juror was forced on appellant, and he failed to exhaust his peremptory challenges. There is no error shown. Hudson v. State, 28 Tex. App. 338, 13 S. W. 388; McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683.

The venireman referred to in bill No. 2 having been'escused upon peremptory challenge, and the court having ottered to restore the challenge to appellant, the bill discloses no error, even though the juror had been subject to challenge tor cause. Such opinion as he had was formed from hearsay, and in testing his qualification the court followed the procedure designated in subdivision 13 of article 692, C. C. P. Canon v. State, 59 Tes. Cr. R. 405, 128 S. W. 141.

The appellant, on cross-examination, was asked if he shot in self-defense when he shot deceased while he was crawling on his hands and knees and begging the appellant not to continue to shoot him. The eyewitnesses for the state testified that the shooting took place under these circumstances, and appellant claimed that all the shots fired by him were in self-defense. We think the cross-examination was germane and not subject to objection. Wharton, Crim. Ev. § 429; Weaver v. State, 150 S. W. 789; Crockett v. State, 40 Tex. Cr. R. 178, 49 S. W. 392; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176.

Bill No. 4 relates to the exclusion of testimony which was subsequently admitted, and discloses no error.

The inquiry as to the appearance of appellant, whether excited or irritated, was not objectionable as leading. Canon v. State, 59 Tex. Cr. R. 398, 129 S. W. 139; Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 631; Bennett v. State, 39 Tex. Cr. R. 639, 48 S. W. 61; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111.

The special veniremen having been sworn individually as they were impanelel, the failure to swear them en masse was an irregularity not available when raised for the first time on motion for a new trial. Caldwell v. State, 12 Tex. App. 316. See Jones v. State, 37 Tex. Cr. R. 434, 35 S. W. 975.

In the recent case of Wilson v. State, 210 S. W. 802, the opinion is expressed that the words “before the trial begins” in the statute, touching suspended sentence, meant before both parties had announced ready for trial. If it were not so, however, the appellant having been convicted of murder, and the suspended sentence law not applying to that offense, the holding of the trial court, that his application for the submission of that issue came too late, could have resulted in no harm.

The appellant was a tenant upon the farm of J. S. McDaniel, whose son, Bud McDaniel, was killed. The age of appellant was 57 years, and his son, Goldie Moore, a youth about 17 or 18 years of age, had been severely whipped by the deceased a few days prior to the homicide. This son, according to the testimony, had been an invalid and his mind was feeble. The cause of the assault upon him appears to have been his alleged misconduct towards the sister of the deceased. This appellant claimed, prior to the homicide, was a false charge, maliciously fabricated. The appellant was incensed at the deceased, and went to Dallas and procured a pistol, and some 10 minutes before the homicide, which occurred in the town of Rockwall, he, according to testimony which he denied, referred to the deceased as a “God damned thieving son of a bitch,” and said, “I will see him; I will tell him so when I see him.” Appellant claimed that he obtained the pistol to leave with his wife on his contemplated absence in eastern Tex-1 as, and that he brought it to Rockwall on the occasion of the homicide for the purpose of having a scabbard made for it. He said that he saw the deceased and a companion step off a platform or gallery, and that he was carrying the pistol in a pasteboard box; that immediately upon seeing them he took the pistol out of the box and loaded it with cartridges which he had in his possession. He claimed he was not expecting trouble with the deceased, and did not arm himself for the purpose of trouble, but for the purpose of defending himself, and said after he saw deceased walking before him he did not know what he was going to run.up 'against. He said he had not made up his mind to kill deceased, but had turned the matter of assault on his son over to the court; that he was‘angry about it, and said:

“I saw Mm stop, and I went right on; did not halt more than a minute when I slipped my shells in my gun. I hadn’t made up my mind to kill him. I loaded the gun to defend myself after I asked him if he beat up my boy. I couldn’t help asking him the first time I saw him. I was going to shoot him if he made any ‘resent.’ I wasn’t aiming to shoot until he made a pass, and said, T can get you too.’ I wouldn’t have shot him if he hadn’t resented it. I 'didn’t know whether I had hit him at all. I didn’t know what he' was after on the ground. When I shot the first time he went down like he was after something. I was shooting him to protect myself.”

He described the homicide by saying:

“I walked up and said to deceased, ‘Bud, did you get satisfaction out of Goldie Moore?’ to which deceased replied, ‘I did’; and came up and says, T can get it out of you;’ and made a lunge at me and I shot him. It looked like he had a knife or something coming toward me, and I shot him, and he went down on the ground and kept running toward me, and I didn’t know but what he was fixing to come at me, and I shot him again — twice more.”

Upon being asked if he would have fired except in defense of his life, he said:

“Why, of course, I was mad, and that is the cause of my doing it, to protect myself — to save my own life.”

The state’s testimony, as developed from several witnesses, is illustrated by tbe following quotation from one of them:

“Bud McDaniel, Mr. O. I. Trotter, and X were standing together, kinder in a row. * * * Mr. Trotter was ‘cutting up,’ and Bud was standing laughing at us. ⅞ ⅜ * When I first saw Mr. Moore he was coming off the walk. Not a word was said about the defendant. Bud McDaniel was not looking in the direction from whence the defendant came. The defendant walked up in about six or eight feet of us, I suppose, and said, ‘Bud, I guess you got satisfaction out of the boy;’ and when he said that he shot, and Bud threw up his arm like that, and fell and caught on his hands and knees, and went running off, saying, ‘For God’s sake, don’t kill me!’ he was running on his hands and knees, and the defendant was following him, and when he shot him the second time Bud was saying, ‘For God’s sake, don’t do that!’ When the appellant said, ‘I guess you got satisfaction out of the boy,’ McDaniel made no reply.”

Appellant insists that, if it be conceded that appellant’s question and manner were reasonably calculated to provoke the difficulty, his disclaimer of intent to do so would ’preclude the right to submit the issue to the jury. It is true that, to justify the submission of the issue, the words and acts of the appellant must have been reasonably calculated to bring about a difficulty, and the appellant 'must have had the intention to do so, in order that he might have an excuse for killing or injuring the deceased, we do not think, however, that the appellant’s statement of his conclusion that he had no intention to kill or to provoke the difficulty was conclusive. The jury was authorized, in deciding what his intention Was, to take into consideration his conduct and his relation to the deceased. The expression of the court in McGrew’s Case, 49 S. W. 227, is pertinent. Judge Brooks, writing the opinion, says:

“While the act of provocation must be confined to the time when the homicide was committed, yet we do not understand by this that we cannot look back to the facts transpiring before this, the course of conduct of the parties, and their former conversations, in order to shed light upon it, and render significant some act or declaration done at the time of the homicide.”

The court, with the acquiescence of ap-. pellant, submitted the issue of self-defense. He relied on it in his testimony. His reliance upon it was based upon the fact that he testified that deceased responded to his inquiry about getting satisfaction out of the boy by an assault, or a threatened assault, and that the appellant thought that he had a knife or some instrument to injure him with. The assault which he described came, from his standpoint, in immediate response to the words he used to the deceased, and the jury, in determining whether they were rear sonably calculated to provoke the deceased, had before them the avowed intention of the appellant to kill the deceased if he resented of made any move in'response to the language that he used to him. They had before them the fact that the appellant, as soon as he saw the deceased, loaded his pistol, approached deceased, and accosted -him in the manner which he described; that five or ten minutes previously he had used, in -the presence of a witness, words denouncing the deceased and threatening to denounce him to his face; the anger and resentment of the appellant developed not only from his own admissions, but from the testimony of other witnesses, his expressed belief that a wrong had been done him in the assault upon his son, and that it was founded upon malicious and false accusations against his son. In the light of those and other facts, which were before the jury, we are not prepared to say that the trial court would have been justified in deciding as a matter of law that there was no intent upon the part of the appellant to provoke the deceased to assault him or that he did nothing reasonably calculated to do so. Neither are we prepared to say that the jury, in passing upon the subject, was without legal basis for the conclusion which they formed. There are many cases supporting the view expressed in the quotation from McGreW’s Case; supra, among them Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88; Barstado v. State, 48 Tex. Cr. R. 255, 87 S. W. 344; Cornelius v. State, 54 Tex. Cr. R. 186, 112 S. W. 1050; Tardy v. State, 47 Tex. Or. R. 444, 83 S. W. 1128; Taylor v. State, 47 Tex. Cr. R. 122, 80 S. W. 378, 122 Am. St. Rep. 675.

Under the evidence of bystanders, who described the acts and conduct of the deceased and the circumstances attending the homicide, we think the question whether appellant’s mind was in a condition rendering him incapable of cool reflection was for the jury, and that the court would not have been justified in eliminating the issue of murder.

The question, “Was McDaniel looking in the direction of Moore?” does not suggest the answer desired, and the bill complaining that it was leading discloses no error. Coates v. State, 2 Tex. App. 19; Moore v. State, 49 Tex. Or. R. 502, 96 S. W. 321; Branch’s Ann. P. C. § 157.

The bill complaining of the admission of the evidence of the witness Underwood failing to set out the evidence, we are unable to pass upon its materiality. See Vernon’s Texas Crim. Stats, vol. 2, p. 537, subd. 21, and cases listed. The receipt of it in rebuttal, though out of its order, was a matter within the discretion of the trial judge. Graham v. State, 57 Tex. Cr. R. 109, 123 S. W. 691.

Complaint is made of the charge on manslaughter in that it was unduly restrictive of appellant’s right of self-defense. The reference in the charge on manslaughter to self-defense ivas not an attempt upon the court to define the law of self-defense, but to direct the jury’s attention to the fact that they should keep the law of self-defense and the facts touching it in mind for appellant’s benefit. The law of self-defense, both on real and apparent danger, was fully given to the jury in other and distinct paragraphs of the charge, and the complaint made that the charge on manslaughter resulted in undue restriction of appellant’s right of self-defense is not sustained, we think, by the record; but, assuming that the issue of self-defense was raised by the facts, we think it is sufficiently submitted, taking into consideration the charge as a whole.

All the bills of exception have been examined and considered, though some of them are not discussed. They relate to the application of questions of practice, and we deem a detailed review of them unnecessary.

Perceiving no error committed by the trial court which would authorize a reversal of the judgment, it is affirmed. 
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