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MAINES v. THE STATE

Court of Criminal Appeals of Texas.

Jun 29, 1895

Judgment

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Case Information

CITATION CODES

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DOCKET NO.

No. 669.

Attorney(S)

Swann Clampitt, James Gameson, Rice Bartlett, for appellant. — Where the evidence shows no actual agreement or intent to fight, but that the conflict was brought on by the deceased, and that appellant did not voluntarily engage therein, but that in resisting the attack of the deceased he either acted upon real or apparent danger, such proof excludes the idea of mutual combat, and it is error to so charge. When there is no evidence calling for or warranting a charge upon mutual combat it is error for the court to submit such a charge, and it is reversible error when the charge is excepted to at the time it is given and a special charge is asked and refused, wherein appellant requests the court to charge the jury not to consider the law of mutual combat or any argument of counsel based thereon. Kelly v. State, 27 Tex.Crim. App., 562; Rosborough v. State, 21 Tex.Crim. App., 672; Amer. and Eng. Ency. of Law, Vol. p. 585; Tate v. State, 46 Geo. Rep., 148; Everett v. State, 30 Tex.Crim. App., 682. The court erred in holding that the juror, B.F. Harris, was a fair and impartial juror. Code Crim. Proc., Art. 777, Sub. 8; Long v. State, 32 Tex.Crim. Rep.; Armendaries v. State, 10 Tex.Crim. App., 44; Graham v. State, 28 Tex.Crim. App., 582; Sewell v. State, 15 Tex.Crim. App., 56; Rothschilds v. State, 7 Tex.Crim. App., 519; Henrie v. State, 41 Tex. 573; Hanks v. State, 21 Tex. 526; Owen v. State, 35 Tex. 361. The court erred to defendant's prejudice in overruling defendant's challenge for cause to the jurors, Bazil Curry, Swearengen and B.F. Foster. No person is a competent juror is this State unless he is a freeholder in the State or householder in the county. No person is a competent juror who has any bias or prejudice in favor of or against the accused, or who has any such opinion as to the guilt or innocence of defendant, when empanelled, as would likely influence his action in finding a verdict. It is reversible error to overrule appellant's challenge for cause to a juror for either of the reasons complained of in last two propositions, when it appears that by reason thereof he was compelled to exhaust his peremptory challenges and was forced to take a juror who was objectionable to him. Revised Civ. Stats., Arts. 631, 636; Lane v. State, 29 Tex.Crim. App., 319, and cases cited. Mann Trice, Assistant Attorney-General, for the State.

JUDGES

HURT, PRESIDING JUDGE.

ACTS

No Acts

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Important Paras

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1. Murder — Self-defense — Charge — Mutual Combat.

On a trial for murder, where the defense was protection of the person against a violent attack made by deceased (P. C., Art. 572), and the evidence showed that defendant was forced into the fight, and acted in self-defense. Held: That it was error to charge upon mutual combat.

2. Same.

On a trial for murder, the question, whether the attack upon the person is of so violent a character as that no other means could have been resorted to in prevention of the injury, is one of fact to be submitted to the jury under appropriate instructions.

3. Jurors — Householder.

A party who lives with his father, and occupies a room in his house, in which he sleeps, is not a householder. Nor is a clerk, whose employer pays him a salary, and furnishes him a room at his house, where he eats and sleeps, a householder.

4. Jurors — Challenges Peremptory, and for Cause.

On a trial for murder, where defendant was compelled to use peremptory challenges upon two jurors, who were shown not to be householders, and before the jury was complete exhausted all his peremptory challenges; and that thereafter he proposed peremptorily to challenge a juror who, upon his voi-dire, stated that he had a fixed opinion in regard to defendant's guilt, which it would require evidence to remove, but, that he could try the case by the law and the evidence; and the court refused to permit defendant to challenge this juror peremptorily. Held: Error in overruling the peremptory challenges to the two incompetent jurors aforesaid, and this error could be availed of by the defendant under the circumstances, and constituted reversible error.

HURT, PRESIDING JUDGE.

This is a conviction for manslaughter. Appellant relied upon self-defense, under article 572, Penal Code. The court submitted to the jury the law applicable to a mutual combat in which the accused obtained an undue advantage of the deceased by resorting to weapons. The evidence both for the State and defendant establishes beyond question, not a mutual combat, but that appellant did not desire, in fact was forced into the fight, and acted in self-defense. Now, whether the nature of the attack was such as to bring the case within the provisions of article 572 was a question of fact for the jury, under proper instructions from the court. Counsel for appellant objected to the charge relating to mutual combat, because no evidence presented this issue. The charge was not demanded by any evidence in this record. Two veniremen were challenged because neither were freeholders in the State or house holders in the county. Curry lived with his father, and occupied a room in his father's house by his permission, but he had no right to the room, as against his father. Of course the man slept in a house, but this did not make him a householder. Swearengen was a clerk, his employer furnishing him a room at his house and giving him a salary. He ate and slept at this house. He was no householder. The court overruled these challenges, and appellant excepted. Appellant exhausted his peremptory challenges, and then challenged one B.F. Foster peremptorily. Foster, on voir dire, stated that he had formed and expressed a fixed opinion in regard to defendant's guilt, that it would require evidence to remove that opinion, but notwithstanding such opinion, he would try the defendant by the law and the evidence. The court overruled the peremptory challenge, because they were exhausted. Appellant had been wrongfully deprived of two of his peremptory challenges, or two challenges for cause, by that court, in holding Curry and Swearengen householders. Now, whether Foster should or should not have been rejected for cause, as was also requested by appellant, he was evidently such a man as would call loudly for a peremptory challenge. If his opinion was fixed — settled — that defendant was guilty, no wise man would risk his ability to discard it. The court should have sustained appellant's challenges to Curry and Swearengen for cause. This was not done, but appellant was forced to expend two peremptory challenges on them. The error could have been cured by returning to appellant peremptory challenges with which to rid the panel of objectionable jurors. This was not done. We have no time to discuss the other questions raised on this record. Same will not arise upon another trial. The judgement is reversed, and cause remanded.

Reversed and Remanded.