Squyres v. State

*162 HAWKINS, Judge. — Conviction is for murder. Punishment ten years in penitentiary. On December 2, 1919, appellant killed John Richards by shooting him with an automatic pistol. The killing occurred at the home of Edward Hammer, a brother-in-law of appellant. Appellant, his wife and the deceased were all practically raised in the-same neighborhood. Some fifteen years before the homicide deceased and Alice Hammer had been sweethearts and engaged to be married. The engagement was broken off and deceased had married another, with whom he had lived up to about two years prior to the homicide when his wife died. Deceased had not remarried. Some five or six years after the engagement between Alice Hammer and deceased had been broken appellant married the said Alice, who was ten years his senior, appellant being at the time of the marriage about sixteen years of age. About October 15 appellant and his wife went to visit and spend the night with Edward Hammer, where the homicide afterwards occurred. Edward Hammer lived on premises rented from deceased’s mother and in a house about fifty yards from where deceased and his mother lived. While on this visit' appellant’s youngest child was taken ill and among other neighbors who came to offer and render assistance were deceased and his mother. Appellant’s wife claimed that one morning while she was at Edward Hammer’s house deceased came into the room where she was nursing the child and said to her, “I hear you are fixing to go to Louisiana.” That upon being informed by her that this was true, deceased told her he wished she would give up appellant and stay there and that he would take care of her all her life. She says she informed deceased she did not care anything about him; whereupon he took hold of her arm and said: “You let me love you once, and you will care something for me;” whereupon she told him she was going to tell appellant; that deceased replied it would not do any good as he was going to get him out of the way; that deceased then left. The State controverted the issue that deceased was present on the occasion when appellant’s wife claimed this conduct occurred, and introduced evidence for the purpose of attempting to show that he was not present at that time. Appellant’s wife made no report of the occurrence to her husband at the time, nor to her sister, although the latter was in the kitchen and her husband near the house cutting wood. Shortly after this appellant and his family moved to Louisiana where he secured work in the oil field. While looking at a house "which they had rented appellant stated that he would return to Texas and get their household goods. Appellant’s wife objected to this and when pressed for her reason claims to have told appellant of what had transpired between her and deceased, and that she was afraid for him to come back to Texas for fear deceased wo. Id kill him. Appellant did return to Texas however, boxed up his household goods and shipped them back to Louisiana. While in the *163 same neighborhood where deceased lived preparing his household goods for shipment appellant claims he did not see deceased. Appellant’s lease on the house he rented in Louisiana was to expire on December 1st, and they were short of money. Appellant’s wife had sold her interest in some property to her brother, Tom Hammer, and a note for $300 was due her from him on December 1st. Appellant and his wife claim that they came back to Texas for the purpose of getting this money in order that they might return to Louisiana and make arrangements for other living quarters. On the night of their arrival in Texas they remained at Tom Hammer’s house. The next morning appellant, his wife and their children, Tom Hammer’s wife and several children, got in appellant’s ear and with appellant driving went over to visit at Edward Hammer’s, where the homicide occurred. Deceased had come over to Edward Hammer’s house on the morning in question to get him to help in cutting wood, but a light rain was falling at the time and Edward Hammer promised deceased he would help him as soon as it quit raining. Several other parties were at Edward Hammer’s house at this time. The mail man came by and four or five of them, including deceased, went to the mail box which was something like one hundred yards from Edward Hammer’s house. As appellant came from Tom Hammer’s to Edward Hammer’s place he passed this mail box where deceased and the other parties were, driving within ten or twelve feet of them. Pour of the parties who were present with deceased at the mail box testified that they saw and recognized appellant as he passed and one of them spoke to him and waved at him, but without getting a response. Appellant drove past the mail box and stopped his car in front of Edward Hammer’s residence and he and all of the occupants of the car went into the house. Appellant claims not to have seen deceased as he drove by the mail box. Within a short time deceased and the other parties returned to Edward Hammer’s house and as deceased stepped up on the gallery appellant, from inside of the house or about the door, began shooting him, and he fell upon the gallery. Deceased had a slicker over his shoulders and appellant says just as he stepped on the gallery he dropped his arms down to his sides and from what his wife had told him he feared he was going to shoot him, although he admits on cross-examination he believed he would have killed him any way had not this demonstration been made. All other eyewitnesses disclaimed having seen deceased make any demonstration of any kind and some of them testified positively that he made none. Immediately after the shooting appellant walked out of the house past deceased, and in reply to a question as to why he had killed him said: “He has ruined my life and I have stood it as long as I can.” The testimony was-that after the shooting appellant seemed to be excited; that he got in his car and undertook to turn around and disabled it in some way. He got out of the car and went to the home of a relative and attempted *164 to get in touch with the sheriff by telephone. Appellant then went on to town and surrendered to the constable. The deceased was entirely unarmed at the time of the homicide. The record furnishes no motive for the killing other than deceased’s alleged conduct towards appellant’s wife. Exceptions were reserved to that portion of the court’s charge submitting murder, it being urged that the evidence made out only manslaughter at most. A special charge was requested directing the jury to acquit of murder. It is also contended that a new trial should have been granted because the evidence will not support a murder conviction. These matters are presented in bills of exception. 1, 3, 6, and 9, and may be considered together. We believe it would have been an unwarranted invasion of the jury’s province for the court to have withdrawn from their consideration the issue of murder. The jury were warranted in concluding that appellant saw deceased and passed within fifteen feet of him at the mail box. Furthermore, adequate cause for passion must not only be shown, but the act must be upon the passion before a homicide can be manslaughter. If the mind be capable of cool reflection the homicide is murder. All of these questions were for the jury. Pitts v. State, 29 Texas Crim. App., 337; Gillespie v. State, 53 Texas Crim. Rep., 168; Jones v. State, 47 Texas Crim. Rep., 515; Jones v. State, 33 Texas Crim. Rep., 392. Appellant excepted to subdivision 2 of paragraph 7 of the court’s charge (bill No. 4) and to paragraph 9 (bill No. 5) wherein the court explained to the. jury what was meant by adequate cause; the objection being that the court ought not to have explained “adequate cause” generally, but should have limited the jury solely to the question of adequate ’cause based upon insulting conduct toward appellant’s wife. The court did tell the jury that insulting conduct toward the wife of one accused of homicide would be adequate cause. These portions of the charge excepted to, taken in connection with the entire charge, were proper instructions and could not possibly have confused the jury in any way or been harmful to accused. The complaint presented in bill No. 7 occurs to us to be an unwarranted criticism of an isolated sentence in one paragraph of the charge. The court told the jury that by the expression “under the influence of sudden passion” was meant: “ (1) That the act must be directly caused by the passion at the time of the killing.” The criticism is, that the effect of the quoted language was to limit the jury to a provocation at the time of the killing. By no sort of construction can we attach that meaning even to the isolated sentence. It states tersely the proposition that passion must be operating to cause the act resulting in the killing. This is the law. Appellant requested the court to give the following special charge: “You are charged as a part of the law of this case that if the de-. fendant, Frank Squyres, was informed and believed that the deceased ■ *165 John Richards had been guilty of insulting words and conduct towards the wife of defendant, that the same constituted ‘adequate cause’ as that term is used in law; and that upon and after receiving such information, the defendant was under no duty or obligation to seek deceased and ask for an explanation of such words and conduct or to give the deceased an opportunity of explaining such words and conduct ; that, on the contrary, if, on his first meeting with the deceased, as that term is elsewhere defined and explainel to you, the defendant, acting upon such information and belief, and under the influence of either of the emotions of the mind known as anger, rage, resentment or terror, sufficient to render his mind incapable of cool reflection, shot and killed the deceased, John Richards, then he would be guilty of no greater grade of offense than manslaughter, regardless of the fact that no explanation was asked and no opportunity given for such explanation.” The court had already in his main charge instructed the jury as follows: “I charge you that insulting words or conduct to a female relative constitutes adequate cause, provided the killing, if any, took place so soon thereafter as the party killing may meet with the party killed after having been informed of such insult. In this connection I charge you that the word ‘meet’ as used herein signifies and means that the parties must see each other and be brought into such proximity as would enable the defendant to act in the premises. And it is immaterial whether the insult actually occurred, or if it occurred, whether it occurred in the manner or way in which it was related to him, if the party believed them to be true. So if you believe that Prank Squyres was informed that deceased had insulted his wife by words or conduct and believed the same, and that at the time of the killing was the first meeting between him and deceased, keeping in view the definition and explanation given in this paragraph as to the word ‘meet,’ then that would constitute adequate cause within the meaning of that term. (10) If you believe from the evidence beyond a reasonable doubt that the defendant, with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of himself against an unlawful attack producing, a reasonable expectation or fear of death or serious bodily injury, with intent to kill, did,' in the County of Shelby, and State of Texas, on or about the date alleged in the indictment, shoot John Richards with a pistol and thereby kill him, as charged in the indictment, you will find the defendant guilty of manslaughter and assess his punishment by confinement in the State penitentiary for a term of not less than two nor more than five years. If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.” We can see so little difference between the charge as given by the *166 court and that requested by appellant that the necessity for giving the special charge is not apparent to us. The special charge incorporated the idea that appellant was under no duty or obligation to seek deceased and ask for an explanation or to give him an opportunity of explaining his conduct. We have been unable to see why this should be injected into the charge. It is not disclosed by the record that it was in any way contended by the State that appellant was under any such duty or obligation. We think the charge as given by the court sufficiently guarded the rights of appellant with reference to the issue of manslaughter without the necessity of burdening the jury with the requested charge which was practically to the same effect, but with an improper issue connected therewith. A special charge was requested on the issue of threats. (Bill No. 11). We have examined the same in the light of the main charge, and believe the latter fully protected appellant’s rights in so far as the question of threats was involved, and that no error was committed in refusing the special charge upon the same subject. Appellant requested a special charge which was brought forward in bill of exceptions No. 12 instructing the jury that by “insulting words or conduct towards a female relative is meant all such words of deceased towards the wife of defendant as may be insulting to the wife of defendant or defendant himself.” We believe no error was committed by the court in refusing to give the charge. The evidence does not raise the issue that the wife in the instant case did not regard the conduct of deceased as insulting, because her testimony is to the effect that she immediately resented the words and conduct of deceased and told him that she intended to inform her husband thereof. Hence we see no necessity of injecting into the case the issue presented in the special charge. We think the court committed no error in refusing appellant’s special charge No. 4 as brought forward in bill of exceptions No. 13, upon the subject of what is meant under the law by the first meeting between the parties. The court had already given in his main charge an instruction upon that subject of which appellant could have no just ground of complaint. Indeed, in one respect it was more favorable than appellant could have demanded. As we find the charge copied in the record, it requires not only that the párties be brought into such proximity as to enable appellant to act in the premises, but also that they “see each other.” It is made to appear by bill of exceptions No. 16 that A. J. Wigley was one of the jurors. Upon his voir dire examination he answered that he was a qualified voter and a householder. Appellant developed the fact that Mr. Wigley was born in England. He had served on juries in other felony cases in Texas. Not until after the trial was it discovered that he was not a naturalized citizen. Mr. Wigley declared his intention of becoming a citizen of the United States in March, 1890, *167 but took no further action to perfect his citizenship. He thought he had done all that was necessary to become a citizen of the United States and of Texas. He had voted since the declaration was made and had served on juries in various courts. It may be conceded that neither appellant nor his counsel knew what the true facts were at the time Mr. Wigley was taken on the jury, and it may also be conceded that they are not chargeable with negligence for not having ascertained these facts prior to accepting him as a juror. The Act of Congress, 1910, amended the naturalization laws, and made the declaration of intention filed in 1890 non-available as a basis for filing petition for naturalization. No question is raised by appellant but that the juror Wigley was a fair and impartial juror and no injury is sought to be shown by reason of his serving on the jury. It is urged that because he was an alien he was a disqualified juror and for that reason alone appellant should have been awarded a new trial. . We will not discuss the question at any length as the decisions of our own courts both in criminal and civil cases, as well as those in many other jurisdictions, have decided this question adversely to appellant’s contention. If the alienage of the juror had been known at the time he was being examined for jury service, would have been a cause for challenge, but it is no ground for a new trial, although not discovered until after the termination thereof. Leeper v. State, 29 Texas Crim. App., 63, 14 S. W. Rep., 398 (in which three cases cited in appellant’s brief are expressly overruled); Mills v. State, 34 S. W. Rep., 270; Martinez v. State, 57 S. W. Rep., 838; Williamson v. State, 36 Texas Crim. Rep., 229; Mays v. State, 36 Texas Crim. Rep., 437; Bartlett v. State, 82 Texas Crim. Rep., 468, 200 S. W. Rep., 839; Sutton v. State, 31 Texas Crim. Rep., 297; Watson v. State, 82 Texas Crim. Rep., 462, 199 S. W. Rep., 1098; St. Louis B. & M. Ry. Co. v. Broughton, 212 S. W. Rep., 669; German v. H., & T. C. Ry., 222 S. W. Rep., 662. (See many authorities cited in last case); Schuster v. La Londe, 57 Texas, 28. The decisions of other jurisdictions are in accord with our own. We do not cite them all, but in Queenan v. Oklahoma, 61 L. R. A. 324, many of them will be found referred to. See also Corpus Juris, Vol. 16, Sec. 2649. Our disposition of the foregoing questions renders it unnecessary to notice bill of exceptions No. 15. The judgment of the trial court is affirmed. Affirmed.