1. Constitutional Law — Disqualification of Judge. — On a trial for murder, where it appeared that at the time the homicide was committed the trial judge was still holding the office of district attorney though he had at a recent election been elected district judge, and that he had taken no steps to prosecute the case, but on the contrary, at the opening of the court, and to avoid disqualifying himself, had procured the appointment of the newly elected district attorney to attend the grand jury and discharge the duties of the office, and the latter prepared the indictment, and in two days from the opening of court the newly elected judge had also forwarded his resignation as district attorney to the Governor: Held, that he was not disqualified from trying the case, under section 11, article 5, of the Constitution, which provides, that no judge shall sit in any case where he shall have been of counsel in the case; nor under the provisions of articles 31 and 41, Code of Criminal Procedure, inhibiting district attorneys from appearing as counsel adversely to the State, in any case in which they may have appeared for the State.
2. Evidence — Threats by Defendant — Insulting Conduct to Female. — On a trial for murder where the State was permitted to prove threats by defendant extending back two years prior to the homicide, growing out of a business disagreement, held, that it was error to refuse to permit defendant to prove in rebuttal, and in support of his theory of the case, that the killing was on account of insult to his wife; that deceased had made improper advances to his wife two years before the homicide, and which insults and advances were again renewed by deceased the evening before the homicide.
3. Same — Defendant's Right to Proof upon His Theory or Defense. — On a trial of a criminal case, a defendant has the right to prove by his witnesses his theory of the case, however improbable it may appear to the court. 4. Fresh Provocation — Murder of First and Second Degrees. — On a trial for murder, where there are two theories, to-wit, antecedent grudges on the one hand, and fresh provocation on the other, defendant has the right to show the fresh provocation if he can, in order that the jury may determine in connection with such fresh provocation, as between murder of the first and murder of the second degree.
5. Same — Charge of Court — Weight of Evidence. — On it trial for murder, where evidence is introduced of a fresh provocation, which, if believed by the jury, might reduce the killing to murder of the second degree, it is error for the court to refuse to charge upon murder of the second degree, and such refusal was tantamount to passing upon the weight of the evidence, and also to excluding from the jury the entire defense relied on.
SIMKINS, JUDGE.
Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment for life.
1. We do not think that the district judge was disqualified from sitting in this case. It is true he was district attorney at the time the homicide was committed, but being elected district judge at the November election, and to avoid disqualifying himself, he declined to attend the sittings of the grand jury, and had the district attorney elect appointed by the court, who entered on the discharge of such duties on the opening of the court on the 5th of December, and prepared the indictment in this case, which was presented on the 9th of December. Two days after the opening of the court, the district attorney forwarded his resignation to Austin.
It thus appears, that in the case at bar, the Hon. J.O. Woodward, though in office as district attorney when the offense was committed, had nothing to do with the prosecution of said case, either in examining the witnesses or preparing complaint or indictment, and resigned his position before an indictment was presented.
Article 31, Code of Criminal Procedure, declares, that a district attorney, after his term of office expires, shall not be counsel against the State in a case in which he appeared for the State, and to the same effect is article 41, Code of Criminal Procedure. This may be taken as a legislative construction of the constitutional clause disqualifying a judge, "where he shall have been of counsel in the case." Const., art. 5, sec. 11.
2. We think the court erred in refusing to permit Mrs. Utzman to testify as to the improper advances made by Thurmond two years previous to homicide, and William Hester's statement of appellant's declarations to him. The State was permitted to introduce proof of threats by appellant, extending back for two years prior to the homicide, and to show that the reason given was a business disagreement. To meet this strongly inculpatory evidence, appellant sought to prove the true cause was the insult offered to his wife, and not a business misunderstanding, and that he had yielded to the tears and entreaties of his wife in not attacking deceased at once. That when he heard of the fresh insult, on the evening of the homicide, he became so aroused that he determined to kill Thurmond on sight, and went out to meet and kill him. Such was the theory of the defense offered in this case — and he had a right to prove it by his witnesses, however improbable it might appear to the court. For if there was in fact a fresh provocation given, it was a question for the jury whether the design to kill was to be attributed to that or some previous grudge; and if the design to kill was formed in consequence of the fresh provocation, in a mind incapable of cool reflection, it might not be greater than murder in the second degree. Of course, if the jury believed that there was no fresh provocation, or that the homicide was deliberately and coolly consummated, it would be murder in the first degree.
3. For the reasons above stated, the court erred in not submitting to the jury a charge on murder in the second degree. Let us concede that the evidence conclusively demonstrates the guilt of appellant, still when the court refused to charge on murder in the second degree, he excluded the entire defense from the consideration of the jury, and thereby passed upon its weight.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.