alarmed. It is the hip-pocket defense, by which the murderer seeks to justify under the law of self-defense. It has received its sanction in those cases which lay down the rule that the jury must judge the defendant's case from his own standpoint; that they must put themselves in his shoes, and look at his adversary just as he appeared to the defendant himself at the time he fired the fatal shot; and if the deceased made any demonstration, such as throwing his hands behind him, which reasonably appeared to defendant that his life was in danger, or that he was in danger of serious bodily injury, and defendant then killed deceased, that he would be justified under the law of selfdefense. There may be something in the abstract theory thus laid down, and there might possibly arise such a case wherein a party might be justified, although deceased was unarmed. But a person ought not to make any mistake or error in regard to the meaning of such demonstrations or movements of his ad

*

versary. In nearly every case the defendant or his friends testify that the deceased threw his hands behind him, and this bare fact seems to be enough to cause juries to rush with jubilant feet to the rescue of the murderer. * * Now, as you jurors are the exclusive judges of the credibility of witnesses, it is for you to say that when a defendant has murdered a helpless, unarmed man, and he offers proof, by himself or his friends, that although the deceased had no weapon himself, and although he knew that the defendant was himself armed, yet he (deceased) actually threw his hands behind him as if to draw a pistol, which he did not have and never had, and advanced on the armed defendant to certain death; it is for you to say whether or not such testimony is true or false. If I was a juror, I should, without hesitation, say that such testimony was manufactured, and I should promptly disregard it."

In the original opinion herein, as stated, we quoted literally and fully everything that Judge Oxford said to the jury panel for the week. We invite a reading of it, just in this connection. How it is possible for any one to claim that the language of Judge Oxford in this case is anything like the language of Judge Thompson in the other cases, we are incapable of comprehending. We think no reasonable man, whether he be "lawyer," judge, juryman, or citizen, could for one moment believe, think, or imagine that the language is substantially or other wise the same, or that the principle which would apply to one could apply to the other. We do not desire to discuss this question further. A mere statement of the matters and a reading of the opinions are all that could be even desired.

[8] Besides this, even if by any kind of mental gymnastics the jury panel (only four of them were on the jury in this case) could have considered what the judge said to them was a charge in this case, then we are peremptorily commanded not to reverse the cause on account of the language of the dis trict judge, for article 743, C. C. P. as amended in 1913 (Acts 33d Leg. c. 138), expressly commands:

"The judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial

trial."

We obeyed this command. We could not have done otherwise. We think no one, whether he be "lawyer," judge, or citizen, can read this record and come to any other conclusion, or even have it suggested thereby that appellant did not have a fair and impartial trial, or that any error was committed therein which was calculated in the slightest degree to injure his rights.

As to the other complaint in the dissenting opinion that the trial judge had no right to deprive appellant and his friends of the privilege of seeing the jury list before the court convened so that he or they could tamper with the jurors and "fix" them, or where they were not wanted by him to disqualify them, we have but little to say. We have

been taught to believe, and do believe, that prevention is better than punishment. Our Supreme Court and this court have in effect many times said:

"Prevention of crime is one of the objects to which the most anxious thoughts and the most constant efforts of thoughtful legislators are directed, and the dealing with the steps preparatory to commission is a favorite method. Our Codes are full of instances of this, too numerous and too familiar to need citation." Dupree v. State, 102 Tex. 460, 119 S. W. 302; Ex parte Allison, 99 Tex. 463, 464, 90 s. w. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653.

The suggestion, as we understand it, of the dissenting opinion that the court ought to have permitted the appellant and his friends to have the opportunity to "tamper" with and "fix" the jurors, and thereby acquit him of a most heinous crime, of which there can be no shadow of doubt of his committing, and then forsooth punish him, or his friends, in contempt proceedings by fine of $100 and confinement three days in jail, or any other punishment for the “jury fixer,” does not meet with our approval. Instead, we again commend the action of Judge Oxford in preventing these crimes, and in se curing a fair and impartial jury, and one that had not been tampered with, nor fixed in advance. Surely what Judge Oxford did and said in this respect, as shown by appellant's bill, must have been overlooked. There is no shadow of error on this point shown by the record in this case. On the contrary, the very reverse of this is true. By no statute or other law are our trial judges prohibited from preventing the jury "fixer" from getting in his infamous work. On the contrary, the whole trend of our legislation and "jurisprudence" makes it the duty of trial judges to prevent the "jury fixers" tampering with the jurors.

We have again carefully reviewed the whole record of this case, and are of the opinion that no error whatever was committed in the trial that could possibly be even an excuse for this court to reverse this cause, and we are more than satisfied with the affirmance of it, as shown in the original opinion.

old law.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.*]

3. CRIMINAL LAW (§ 126*)-VENUE-CHANGE OF VENUE-PREJUDICE OF INHABITANTS. In a prosecution for homicide, facts held to entitle defendant to a change of venue for prejudice of the inhabitants.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.*] 4. CRIMINAL LAW (§ 126*)—VENUE-CHANGE OF VENUE-LOCAL PREJUDICE.

Const. art. 1, § 10, guaranteeing accused a speedy public trial by an impartial jury, means that the trial judge shall not put accused to trial in a county unless the circumstances and conditions of public sentiment are such that the judge feels able to give an absolute assurance that neither by accident nor design will any sentiment against accused creep into the jury box except such as is alone raised by the testimony introduced at the trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.*] 5. HOMICIDE (§ 174*)-DYING DECLARATIONSTATEMENT BY WITNESS TO DECEASED.

A statement by a witness to deceased after he had been shot and while he was giving a dying declaration that deceased should have known better than to have gone out with defendant to the place where the shooting occurred was inad

missible.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.*] 6. HOMICIDE (§ 215*) EVIDENCE DYING DECLARATION.

A dying declaration by deceased that "he was shot down like John Ross" was mere opinion and inadmissible.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 451-456; Dec. Dig. § 215.*] 7. CRIMINAL LAW (§ 1163*)—APPEAL-PREJUDICE-PRESUMPTION.

Where an inadmissible statement of deceased's opinion that "he was shot down like John Ross" was deliberately introduced, and there was nothing in the record to disclose what its weight or effect would probably be before the jury, its character being such as could reasonably be hurtful, the appellate court was bound to presume that the state, in offering the testimony, did so intelligently and that it was helpful to the state and detrimental to accused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099; Dec. Dig. § 1163.*]

While evidence of flight is ordinarily admissible as indicative of guilt, yet a judgment nisi in an ex parte proceeding against accused for the forfeiture of his bail bond because of

his failure to appear for trial, not being a final adjudication of any fact, was inadmissible.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.*]

9. HOMICIDE (§ 156*)-THEORY OF KILLING— EVIDENCE-PRIOR DIFFICULTY.

Where the state claimed that the killing was malicious, while defendant claimed that he was, at most, guilty of manslaughter, and that the killing was on adequate cause, evidence of knowledge or information brought home to accused concerning the prior difficulty between his brothers and deceased was admissible.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dec. Dig. § 156.*] 10. WITNESSES (§ 277*)-CROSS-EXAMINATION

OF ACCUSED-"CONVICTION OF FELONY."

The term "conviction of a felony," referred to in the suspended sentence law, means a final conviction, and hence the fact that accused invoked the benefit of such law did not place on him the burden of proving that a former jury on the prior trial of the same case had returned a verdict of guilty, which, for some reason, had been vacated; and hence it was error half to testify that he had been convicted on a to compel accused as a witness in his own beprior trial of the same case.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.*] 11. CRIMINAL LAW (§ 1169*)-EVIDENCE-ERRONEOUS ADMISSION-PREJUDICE.

Error in compelling defendant to testify as a witness in his own behalf that he had been convicted on a prior trial of the same case was not rendered harmless because he had accepted jurors after they had testified on their voir dire that they had heard of the former conviction, nor because accused had filed certain pleas before the jury was impaneled in which such prior conviction appeared.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*]

12. HOMICIDE (§ 160*)

VANCY.

EVIDENCE RELE

some time prior thereto and subsequent to a In a prosecution for homicide, evidence that difficulty between deceased and defendant's brothers a witness saw defendant with a gun near a fence dividing deceased's field from that of defendant's father was inadmissible, in the absence of any evidence that defendant was carrying a gun with the intention of having a difficulty with deceased.

EVIDENCE

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 301; Dec. Dig. § 160.*] 13. CRIMINAL LAW (§ 351*) RELEVANCY. Where, in a prosecution for homicide, there was no evidence indicating that defendant's purpose in going to Louisiana while on bail was with intent not to return in time for trial, evidence that when he returned he apologized to one of his bondsmen for not telling him in advance about his intended trip, and that he did not blame him for refusing to become a bondsman a second time, was inadmissible.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930–932; Dec. Dig. § 351.*]

14. HOMICIDE (§ 158*) - EVIDENCE DECLARATIONS OF ACCUSED.

In a prosecution for homicide a statement made by accused shortly before the killing that he did not want any trouble with deceased, but if they did have trouble it would be serious, and he would kill out the entire crowd, and then the court could do with him what they pleased, was admissible.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] 15. CRIMINAL LAW (§§ 680, 1153*)-TRIALRECEPTION OF EVIDENCE-ORDER OF PROOF.

Reception of evidence out of its proper order is a matter within the discretion of the trial court, the exercise of which will not be reviewed unless abused.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1609, 1610, 1613, 3061-3066; Dec. Dig. 88 680, 1153.*]

16. HOMICIDE (§ 158*)-EVIDENCE-INCULPATORY ACTS.

Evidence that accused on the night of the homicide and prior to the killing obtained a box containing his pistol from a jeweler who had repaired it, and that as he received it he threw up the box, caught it in his hands, and remarked that he would "use that gentleman that night," was inadmissible, in the absence of evidence that he referred to deceased and had him in mind as the object of the remark at the time it was made.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] 17. HOMICIDE (§ 169*)-EVIDENCE-CONVERSATION BETWEEN PARTIES.

In a prosecution for homicide, evidence of a conversation between defendant and deceased just prior to the killing in which defendant, on finding deceased on the back gallery of a house where a party was in progress, asked him to walk away a little distance that they might talk together, etc., was admissible.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*] 18. HOMICIDE (§ 300*)-SELF-DEFENSE-PROVOKING DIFFICULTY.

A charge on provoking a difficulty or abridging the right of self-defense is not called for, unless the interview was sought by defendant to provoke a difficulty, and when the meeting occurred defendant did some act or used some abusive and insulting language to deceased reasonably calculated to provoke the difficulty, and the act or acts so done or the language so used were used with intent to provoke a difficulty, and, in fact, did provoke a difficulty in which deceased was the aggressor.

[Ed. Note -For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec.Dig. § 300.*] PRO

19. HOMICIDE (§ 300*)—SELF-DEFENSE VOKING DIFFICULTY-EVIDENCE.

word "peaceable" or other language of similar import in such connection.

[Ed. Note.-For other cases. see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]

21. CRIMINAL LAW (§ 829*)-TRIAL-REQUEST

ED CHARGE-INSTRUCTIONS GIVEN.

A requested charge substantially covered

by instructions given may be properly refused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] Prendergast, P. J., dissenting.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Pearl Sorrell was convicted of murder, and he appeals. Reversed and remanded. Geo. S. King, of Houston, for appellant. Norman & Shook, of Rusk, and C. E. Lane, Asst. Atty. Gen., for the State.

WILLIAMS, Special Judge. Appellant was convicted in the district court of Cherokee county of the offense of murder, and the punishment assessed was a term of 11 years' imprisonment. Appellant was tried under this same indictment in January, 1912, and was convicted of murder in the second degree, and punishment assessed at 10 years' confinement, but that conviction was set aside in the lower court.

There was an ice-cream supper at G. P. Messer's residence in the northeastern portion of the county on the night of July 2, 1910. The appellant, the deceased, and quite a number of other neighbors, male and female, assembled there that night. It was on this occasion that the homicide out of which this conviction grew occurred. The deceased and appellant were each at that time approximately 23 or 24 years old. The deceased, under the evidence, was the larger man. Estimates giving him the advantage in weight varying from 20 to about 50 pounds, the appellant's weight being generally esti mated from 125 to 135 pounds. The deceased some month, or possibly a little more, prior to the homicide had an altercation with two younger brothers of appellant. One of appellant's brothers had a cut on his head as if he had been struck with a stick. The deceased said this trouble was over "the fixing of a fence." It is not shown how, if at all, this former difficulty concerned appellant. further than his two younger brothers were involved in it. Nor is it shown that he had any connection with, or took any interest in,

STRUCTIONS.

IN

In a prosecution for homicide, an instruction that defendant was entitled to invite deceased off from a crowd to "peaceably" discuss and settle with him a previous difficulty between him and defendant's brothers for any threats, etc., was erroneous in the use of the

except that some time after the difficulty between the deceased and the younger Sorrell boys the appellant, in talking about the matter with the state's witness J. F. Martin, stated to him (Martin) that he (the appellant) was not going to raise any racket with him (deceased), and that he did not blame him as much as he did the other crowd or crew; "and then he told me that if they ever did have any trouble, or if I ever start, I am going to get the whole d- business, and then

trial of the case the sheriff was called upon to attach and bring to court a witness whose wife was sick, and during the thus enforced absence of the husband from the home the wife died. In the ensuing election an opponent of the sheriff sought to make political capital of this unfortunate incident. He had printed and distributed generally over the county at least 3,000 circulars narrating the occurrence, thus bringing this case into public notice and under discussion in every precinct and neighborhood in the county. The evidence further shows that at the former trial of this case there was a large attendance composed of citizens from various parts of the county, who were present at court and heard the evidence and argument of counsel in the case and the verdict of guilty with the ten-year penalty. Upon another occasion, when appellant's bond was declared forfeited, it appears that there was some other case or cases set for trial, and there was an attendance upon court of a great number of citizens, witnesses, jurors, etc., from the body of the county. At this time the rumor became prevalent that appellant had intentionally forfeited his bond and had fled to the state of Louisiana as a fugitive from justice. It is a fair presumption and fully borne out by the record in this case that these citizens who attended court upon the occasions referred to returned to their respective homes in the remote precincts of the county and there very naturally disseminated the news occurring at the county seat. In this connection it is further shown that several newspapers of general circulation in the county published accounts of these various court proceedings had in this case. None of these publications was bitter or unfair, except possibly a short article appearing in the Rusk Sentinel, relative to appellant's arrest after his alleged flight. The article is as follows:

"Deputy Sheriff Forest Reagan brought in Saturday Pearl Sorrell, who forfeited his bond at the last term of the district court. When Forest goes after them, he generally gets them, and Sorrell will have to take a longer and more extended trip next time."

The evidence of 30 witnesses introduced by appellant, together with the examination of the jurors, which is also included in the bill of exceptions, together with the testimony of some of the state's witnesses introduced upon this point, established the fact, we think, that appellant's case had been discussed and was generally known in every precinct in the county. The evidence shows that his former conviction was commonly and generally well known; that his former bond forfeiture and alleged fugitive flight to Louisiana were equally well known. A statement that appellant had killed one or more men prior to the homicide in this case and was a bad man had also gained both general circulation and credence. Three of appellant's witnesses showed especially good opportunity to know the general concensus of public senti

ment about over the county. These, the candidate for sheriff, who had canvassed the entire county; a collector whose occupation required him to fully cover all the territory within a radius of within 12 or 15 miles of the county seat; the third was a trader whose business took him all over the county. In addition to these were his other 27 witnesses from the various precincts, as far as we can judge, of the county. They all, with one or two exceptions, say that appellant's case had been prejudged all over the county so far as they had opportunity to know, and that they had heard it frequently and generally discussed; that this prejudgment was against him; that the court's history of this case was generally known, including the fact of his former conviction and the reports concerning appellant above referred to.

To meet this the state introduced 20 witnesses. A great many of these witnesses testified that they believed defendant could get a fair and impartial trial in the county. Some of them said that the case, so far as they knew, had not been "generally discussed." But quite a number of them, if not a majority, upon examination showed that they themselves were fully conversant with the history of the case and all the steps that had been taken in it. The county attorney, Mr. Guinn, who was one of the state's witnesses, based his reason for his belief that the defendant could get a fair trial "because of the confidence I have in the citizenship of the county, but not altogether, though." If this were the true test, then it is not likely any change of venue would ever be needed from that county. Witnesses in other counties might also, with equal assurance, claim this high standard of citizenship for their respective counties, and thus the change of venue statute be abrogated.

The county superintendent was another state's witness, who testified he thought he could get a fair trial, but upon cross-examination it developed that this witness had been discussing the case quite freely himself, and that he was sufficiently conversant from some source with the facts to feel justified in making public the expression of his belief that the appellant got off light before for ten years, and further said that was his present opinion about it. An extended digest of the testimony of these witnesses would serve no good purpose. As above stated, while they in the main testify that they think the appellant could get a fair trial, yet they themselves show a familiarity with the case and everything that had been done in the case; that defendant forfeited his bond and his alleged fugitive flight to Louisiana; that he had been guilty of a similar offense before, and just such other matters as appellant contended were prevalent talk in the county. Not all of the witnesses were thus familiar with the current talk, but a great number of them. We are of the opinion that the court should have ordered a change of