venue in this case. Doubtless there are men in Cherokee county who never heard of this case, and it is without question that even those who had, if selected as jurors, would attempt to lay their prejudice aside and try the case upon its merits, but neither of these questions were the issue. [4] The Bill of Rights, under the head of "Guaranties" (article 1, § 10, Constitution), provides: "In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury." This is intended to be a guaranty. It doesn't mean that 11 of the jury should be fair and impartial. It doesn't mean that the district judge shall force the defendant to trial with the hope of securing a fair and impartial jury. But it does mean that he must not put him to trial in a county unless the circumstances and conditions of the public sentiment are such that he feels able to give an absolute assurance that neither by accident or design will any sentiment against the accused creep into the jury box, except such alone as is raised by the testimony heard upon the trial. The verdict of the jury should reflect the testimony in the case. The reflection should be a perfect one, not a distorted or imperfect one. One crack in the mirror, one ripple upon the surface of the pool, is sufficient to destroy the trueness of the reflection. One improper juror destroys the integrity of the verdict. Where the great majority of the citizenship of a county is shown to be conversant with a case, and their minds have been poisoned with wild rumors against the accused, which possibly might not be admissible as evidence, where they have heard of his former conviction, and where general public sentiment is in the condition as the testimony in this case indicates, we think it indeed a risky thing to undertake to guarantee an impartial jury under such conditions. As said by Judge Henderson in the Cortez Case: "Prejudice is a sinister quality; and the very persons whom it actuates may be unconscious of its existence." Witnesses frequently testify that they believe an accused could get a fair trial, and in this they are honest. They are not given an opportunity, or possibly called upon, to express their further opinion that with them a fair trial would mean the penitentiary or the gallows. As was held in the Randle Case, prejudice, referred to in the statute, does not necessarily mean the prejudice against the defendant, but may and often with equal force does mean prejudice against his case. If upon another trial appellant should present his application for a change of venue, and upon contest make substantially the same showing, as made upon this hearing, the venue of the case should be changed. Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953; Cortez v. State, 44 Tex. Cr. R. 169, 69 S. W. 536. 4. Bills of exceptions 4, 5, and 15 present questions relating to the admissibility of the dying declarations offered in evidence by the state. We think it is made sufficiently to appear from the evidence that the deceased, at the time the declarations offered were made, was properly imbued with the belief of the near approach of his dissolution, and that the objections upon that issue were fully met. We do not think that the record shows any such leading or pressing in order to induce the declarations as to reject them on that score, and the court was not, therefore, in error in admitting the declarations in general. [5] We do not think, however, that the advice given by the witness Messer to the deceased, to the effect that he ought to have known better than to go out there, should have been admitted. [6] 42. We think the court erred, as shown in bill No. 15, in permitting for any purpose the declarations of the deceased that "he was shot down like John Ross." This could but be an opinion of the deceased. If the deceased had not died and had been on the stand testifying, he would not have been permitted to have given such testimony; that is, that he was shot down like John Ross. We understand the rule to be that the knowledge of approaching dissolution is substituted for the solemnity of the oath, but that in all other respects the general rules of evidence apply, and that an opinion or conclusion is no more admissible as part of a dying declaration than it would be if the witness was upon the stand personally testifying. It is urged by the state that this testimony was not hurtful to the interest of appellant, as there is nothing in the record showing how John Ross was shot down, or that the jury were conversant with any of the facts surrounding his death. To so hold, we think would be an uncalled for reflection upon the prosecution in this case. They were insistent upon the admission of this evidence even after objection had been made; and in the absence of testimony, either one way or the other, for us to presume it was not helpful to the cause which they represented and injurious to appellant's cause before the jury would be a conclusion which we would not feel justified in indulging. The evidence was not accidentally, incidentally, or inadvertently introduced. [7] Where evidence of this character is intentionally and deliberately introduced in the record, and there is nothing in the record to disclose what its weight or effect would probably be before the jury, and it is of such a character as could reasonably be hurtful, we feel that it is the duty of this court to presume that the party offering it was acting intelligently, and that the evidence so offered was helpful to the one and hurtful to the other. [8] 5. Bill of exceptions No. 6 is an objection to the admission in evidence, at the instance of the state, of a judgment nisi, rendered in January, 1913, declaring a forfeiture of appellant's bond for his failure to appear for trial. Evidence of flight is ordinarily ac- | understand how the effect of an affidavit incepted as an indication of guilt, and is ad- voking the benefits of the suspended sentence missible. So also, upon the same theory, law could be so far misinterpreted. The conwould be evidence showing or tending to show viction of a felony, referred to in that statthat appellant had intentionally absented ute, means a final conviction. The statute himself from court in order to avoid a trial was passed for the benefit of those upon trial of his case. The judgment nisi, however, for their first offense. It was intended as a was an ex parte proceeding, having no legal beneficent statute, and not as a license to weight or effect except in the matter of the deprive one of a fair and impartial trial for bond forfeiture, and legally establishing no which the Bill of Rights stands guarantor. conclusion. For these reasons it should not It is true when one files an affidavit under have been admitted. It was taken in the ab- this statute he opens the question of whether sence of the accused, without an opportunity or not he has ever before been finally convicton his part to be heard on the issue. It was ed of a felony. He may also, if he sees fit, not, and could not have been, a final adjudi- and has especially invited it in the affidavit, cation of any fact, and was therefore, as in this way put his general reputation in stated, not admissible. The state, upon this issue. But the fact that he puts in issue the issue, should be confined to evidence of the question of whether or not he has ever been defendant's flight or intentional absence, and convicted of a felony by no means places upon should not be permitted to bolster the same him the necessity of carrying the additional up by an ex parte proceeding of the court. burden before the jury that a former jury, [9] 6. The evidence discloses that some upon a former trial of this same case, had rething like two months prior to the homicide turned a verdict of guilty, which for some the deceased and two of appellant's younger reason had been vacated. This was clearly brothers engaged in a difficulty or fight, which not the intention of the law. We are not appears to have grown out of "fixing a fence." sure that we quite understand the position As growing out of this difficulty, it is alleged of the state in its brief with reference to this that deceased made some threats in the in- most grievous and unnecessary error. In tervening time between then and the homi- one place they say, in substance, that by the cide, and this difficulty is one of the things affidavit for suspended sentence the issue of that appellant claims he called deceased former conviction was open, and "for this aside for, at the time of the homicide, to talk purpose the question asked appellant by the to him about. The merits of this difficulty, state's counsel was a proper and legitimate as such, are not material to any issue in this one, and the fact that appellant may have case; but the state, upon one hand, contend- misinterpreted it and made the answer which ed for malice on the part of appellant, and, he did should not result in a reversal of the on the other hand, manslaughter, and the case, and this even though the fact had not necessary adequate cause were in part ap- already been well known to the jury as a repellant's defense to the charge of man-sult of appellant's conduct of the trial." The slaughter. Then any knowledge or informa-inference, as we read it, intended here is that tion brought home to appellant concerning by mistake the defendant answered with refthis difficulty between his brothers and de- erence to his former conviction in this case, ceased would be evidence, in view of these when such was not the purpose of the query. contending theories. In view of the fact that The bill of exceptions flatly contradicts this the case is being reversed, it is not necessary position, for it says the state was permitted for us to pass upon defendant's bill of excep- to ask defendant "if it was not a fact that he tions objecting to the admission of evidence had before been convicted upon a former trishowing that his brothers were convicted in al in the case now being tried." the justice court of assault growing out of this difficulty with the deceased. The rule above announced will be sufficient to govern the admission and rejection of evidence on this issue upon another trial. [10] 7. By bill of exceptions No. 8 it is shown that, while appellant was on the stand as a witness in his own behalf, the state was permitted to ask him if it was not a fact that he had before been convicted upon a former trial in the case now being tried. Timely and full objections were made by his counsel, but were overruled by the court, and defendant was required to testify before the jury that he had been convicted upon a former trial in this case. The only qualification to this bill is that it was admitted under the defendant's plea of suspended sentence, and that it is qualified by the charge of the court. Of this latter we will see later. We do not [11] The state then in its brief takes the position that, inasmuch as the jury already knew of appellant's former conviction, and inasmuch as defendant had testified in answer to questions from his own counsel that he had never been convicted of a felony, etc., that, "rather than being hurtful to the defendant from the peculiar facts of this case, it seems to us to have offered him an opportunity to explain what he meant by conviction and to relieve him of the danger of the jury thinking he had made a false statement when he said he had not been before convicted of a felony." But how did the jury, as such, have any evidence of his former conviction? Why should an accused be wrongfully placed in the position that he is called upon to explain something that the jury should in no event, have ever known? True, the state says that appellant accepted some jurors after they had testified upon [ der circumstantial connection, the circumtheir voir dire that they had heard of the stances should be sufficient to meet the test former conviction. We do not know to what of certainty required in cases of circumWhat we have here said stress appellant was driven in accepting ju- stantial evidence. rors, but, admitting this contention of the also disposes of the bills with reference to state, these several jurors could not legally appellant going backwards and forwards to impart their personal information to the re- his field and at times having a gun in the mainder of the jury. Again, the state inti- wagon. There is no evidence in this record mates in its brief that by the defendant's con- to show that this gun was being carried for duct of the case this information of his former the deceased, or even that it was in the perconviction had already been brought before sonal possession of the appellant. There are the jury. We do not so read the record. True some other similar questions to the two appellant had filed certain pleas setting up above in the record, and they will be conhis former conviction of second degree mur- trolled by the rule here announced, and will der as an acquittal of any grade of offense not be admitted unless there is first introduchigher than manslaughter; but all of these ed evidence showing that they had some real various pleadings and motions relative to this connection with, or bearing upon, the homiissue were disposed of, as we understand it, cide. without the intervention of the jury and before the jury had been impaneled; in fact, before the application for change of venue had been overruled. This condition here shown but illustrates the reason why the change of venue should have been granted. | court, he was Louisiana, and his bond was No man should ever be tried before a jury who knew, or any part of whom knew, that a previous jury had convicted him upon a former trial of the same case. It is true jurors may say that this knowledge would not affect them and that they could lay it aside, but we know human nature too well, and the first impression is too strong to be thus lightly disposed of. It was error to admit this fact in evidence, or even any reference to it, and it was of such a prejudicial character that we see no way that the court could have cured the error after it was once injected. As to what effect it had, the two verdicts themselves are a fair indication; the first was a 10-year penalty and this last penalty was fixed at 11 years' confinement. [12] 8. The testimony of Mrs. Streight was to the effect that some time subsequent to the difficulty between deceased and defendant's brothers and before the homicide she passed along the lane running between the field of deceased and the field of defendant's father, and that as she passed she saw defendant near the fence of deceased in a skirt of woods with a gun, and that the fence of deceased was up as she passed, but as she later returned the fence of the deceased was down. There is nothing in the bill of exceptions, nor so far as that is concerned in the statement of facts, showing that this incident had any connection whatever with the homicide. Its tendency was prejudicial, and the court by admitting it necessarily led the jury to believe that it was material upon some issue. We see no inference that the jury could have drawn from this testimony except one prejudicial to the rights of the defendant. Testimony of this character should never be admitted, unless there is either some direct or adequate circumstantial connection between the incident offered in evidence and the occurrence concerning which the trial is being had. To be admissible un169 S.W.-20 [13] 9. There are two bills of exception with reference to the testimony of the witness Fitch. It appears that appellant was not present in court one time when his case was set for trial, but that, instead of being in declared forfeited. According to Mr. Fitch's testimony, after appellant returned he approached him (Fitch) and apologized to him for not telling him in advance about his intended trip to Louisiana, and in this connection told the witness that he did not blame him for not again becoming his bondsman. It seems by one of the bills of exception this testimony was admitted as original evidence, and by another admitted for the purpose of impeaching appellant and for which a predicate had already been laid. This evidence could only have been admitted originally for the purpose of showing that appellant had intentionally avoided being present for trial at the time set; in other words, as showing an attempt to avoid trial under the indictment. We see nothing in this particular testimony to indicate or tend to show that such was appellant's purpose in going to Louisiana. The mere fact that he apologized to his bondsman for not telling him in advance of his intended trip is no indication, as we see it, that he had made the trip with no intention of returning in time for trial. Not being admissible as original evidence, upon the ground that it was not material to any issue in the case, no predicate and impeachment could be laid and met by it. Unless there is something more to this testimony than is shown by the bill of exceptions and something sufficient to at least amount to an intimation that the defendant had willfully left with no intention of returning in time for trial, then this evidence upon another trial should be excluded. [14] 10. The court did not err, as complained of, in bill of exceptions No. 12, in admitting the testimony of Jim Martin, to the effect that in a conversation with appellant a short time before the homicide the appellant said "he did not want any trouble with the deceased, but if they did have trouble it would be serious trouble; that he would kill out the entire crowd, and then the court could do with him as they pleased." [15] While this testimony was offered out of the regular order, still, if admissible, its admission out of order was a matter within the discretion of the trial court, unless abuse is shown. We see nothing to indicate that the court abused its discretion in this matter. On the contrary we think this ruling was correct and proper under the circumstances, and we further think that, if there be any objection at all to the testimony, it would go to its weight rather than to its admissibility. [16] 11. By the witness Rooks it was shown over appellant's objection that he was present in the town of Troupe on Saturday evening (the homicide occurred that night) when appellant received his pistol from the man who had repaired it for him; that the pistol was in a box; and that appellant threw the box up containing the pistol and caught it in his hands, remarking at the time that he would "use that gentleman that night." Appellant upon cross-examination had denied making this remark, and we presume that the evidence was offered both as original and impeaching testimony; for, if admissible as one, it was admissible for both purposes. As stated before in this opinion, testimony of this character is only admissible when there is other evidence tending directly to show with reasonable certainty that the remark had application to deceased, and that the appellant, at the time he made it, had the deceased in mind; an accused is not to be tried for every idle remark which he may make. There are other things in unlimited numbers which he might have had in mind as the object of this remark other than the difficulty with the deceased. There is no evidence in the record tending to show that appellant knew that deceased would be at the ice-cream supper that night, even if appellant had already made up his mind to attend. There is nothing in evidence to show that appellant had any right to anticipate a meeting with the deceased that night. Even if true, none of these things could indicate with any degree of certainty that deceased was the object of the remark. There is evidence that the deceased was not in the habit of attending entertainments of this character. True, none of these things that we are discussing are in the bill of exceptions, and possibly we, strictly speaking, are violating the rules in going outside, but, if that be true, it is equally true that there is absolutely nothing in the bill of exceptions to indicate that the testimony was admissible. However, we are discussing this question now not so much for the purpose of passing upon the bill of exceptions, but, on the contrary, in view of another trial. Upon another trial, unless there be evidence introduced tending to show with reasonable certainty that the deceased was the ultimate object of this remark, then this testimony should be rejected. Holley v. State, 39 Tex. Cr. R. 307, 46 S. W. 39; Gaines v. State, 53 S. W. 625. [17] 12. Bills of exception 16 to 18, inclusive, are objections to the introduction of parts of the conversation between the appellant and deceased at the back gallery just prior to the homicide; the chief objection being that some of the statements made by the deceased were merely opinions, and others that the questions were leading. This was the conversation between the parties, and was, of course, admissible just as it occurred, without reference to whether it was composed of opinions or statements of facts. Some of the questions were rather leading, but this cannot always be avoided, and is a matter largely for the discretion of the trial court. 13. While there seems to be no exception to the second paragraph of the court's charge under the head of justifiable homicide-that is, the paragraph instructing the jury about resorting to other means, retreat, etc.— yet, in view of another trial, we think it proper to suggest that we do not think that the evidence in this case calls for said paragraph; nor was the paragraph, with reference to the presumption arising from the use of a deadly weapon by the deceased, called for by the facts in evidence. 14. There is some criticism of the court's charge for submitting the case to the jury under the murder statute as it now exists, and we think that the criticism is correct to the extent that under the decisions of this court since the passage of the new murder statute, in cases in the condition this case is in, the defendant should be tried under the old second degree murder statute and for manslaughter. As stated, this court has passed on this question in several cases, and it is not now open. See Shaw's Case and other cases cited supra. In view of the fact, however, that under the established law of this state a person who has been convicted of murder in the second degree and thereby acquitted of murder in the first degree can thereafter be convicted of second degree murder on the testimony showing conclusively a first degree homicide, we fail to see how this error could be injurious to the defendant. [18] 15. Appellant also makes the contention that the facts in this case do not raise the issue of provoking a difficulty, and that the court erred in submitting this issue to the jury. In this connection he makes further complaint on the manner in which the issue was submitted, if it be held that provoking a difficulty was in the case, and of the court's refusal to give his special charge upon this subject. From a reading of a great many cases we understand that the following combination of facts must exist before a charge on provoking a difficulty or abridged right of self-defense is called for or permitted: (1) The interview or meeting must be sought by the defendant for the purpose of provoking a difficulty. Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Airhart v. State, 40 Tex. Cr. R. 472, 51 S. W. 214, 76 Am. St. Rep. 736. (2) When the meeting occurs the defendant must do some act or use some abusive and insulting language to the deceased or injured person reasonably calculated to provoke the difficulty. Hjeronymus v. State, 46 Tex. Cr. R. 161, 79 S. W. 313. (3) The act or acts done or abusive or insulting language used must be done or used, as the case may be, with the intent of provoking the difficulty. McCandless v. State, 42 Tex. Cr. R. 61, 62, 57 S. W. 672, 674. (4) The act or language just referred to must actually provoke a difficulty in which the deceased or injured party is the aggresMcCandless v. State, supra. sor. Some of the cases hold that the court should point out in his charge the evidence upon which the charge on provoking a difficulty is based. Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Mozee v. State, 51 S. W. 250. But this rule does not appear to have met with approval in later cases, the fear being expressed that it approached too near a charge upon the weight of evidence. In the McCandless Case, above cited, it is said that the charge should be couched in general terms, and that the court "should instruct the jury in effect that, if the defendant sought the occasion for the purpose of slaying his adversary (if he did so), and, having found him, did some act or used some language, or did both, as the case may be, with the intent to produce the occasion and bring on the difficulty, and that the same, under the circumstances, was reasonably calculated to produce a difficulty, and on such account his adversary attacked him, and he then killed his adversary in pursuance of his original design, then such killing would be murder." [19] The above, however, was not there given, nor is it here given, as a form for a charge, but is merely a suggestion of the essential elements. Most all of the cases announce the rule to be that, before a court is justified in charging upon provoking a difficulty at all, he must be able to point out definitely "to put his hand, on" the testimony which justifies the charge. Some of the cases speak very reverently of "the inalienable right of self-defense," and suggest that the rule in cases of provoking a difficulty or an abridgment of this right in any wise can only be justified upon the ground of estoppel. Some of the older cases say that it is based upon the legal maxim that, "A man may not take advantage of his own wrong to gain favorable interpretation of the law; he seeks the law in vain who offends against it." And others, "That one cannot willingly and know. ingly bring upon himself the very necessity which he sets up for his defense." All of the authorities are to the effect that where a difficulty is provoked, but with no intent to kill or do serious bodily injury, and the one provoking the difficulty is driven to the necessity of killing in protection of his own life that he is in such a case only guilty of manslaughter. We have carefully considered the evidence bearing upon the question of provoking a difficulty to first determine whether such issue is in the case. In addition to the statement of the case made in the beginning of this opinion, we state the further facts shown by the record to be in evidence. The state's witness Joe Hamilton testified that the appellant went to the deceased, who was sitting on the edge of the rear porch or steps of Mr. Messer's house on the night of the ice-cream supper, and further testified as follows:. "Pearl just told Tom to come on out, that he wanted to talk with him. Tom told Pearl, 'No'; that he did not want to go; that he wanted to get him out there and kill him. Pearl then said 'No'; that he only wanted to talk with him. Tom then went on with Pearl." This witness further stated that Pearl in that conversation told Tom (meaning the deceased) "that if he was as game as he used to be that he would come," and that Pearl then went. By another witness it is shown that when the appellant asked the deceased to go out with him, that the deceased got up and replied: "If he wanted to fight to fight there, and Sorrell said, 'No, we will go out here; I just want to talk with you.' Tom said something then, rell said, 'If you are as game as you used to but I did not hear what it was, and then Sorbe, you will go with me,' and they then went on together." This is a sufficient statement of the state's theory of what was said there. The appellant's theory, with reference to this conversation, is probably best shown by his own testimony upon this point. He contended that he had heard of threats made by the deceased against him and of the difficulty which the deceased had had some time in the spring with appellant's two younger brothers, and that he had never seen the deceased until the night of the ice-cream supper; that as he (the appellant) went out to the well and started back he saw the deceased sitting there, and walked up to him and told him that he would like to talk to him. "I wanted to talk to him about the threats that he had made about my life. Mr. Cox and Mr. Jennings had told me about his threats against me. I just wanted to ask him about those threats, and also about the way he had been treating my minor brothers. When I told him that I wanted him to come on and have a talk with me, or that I wanted to talk with him, he just raised up and said, 'No; if you want to fight fight here.' I then told him I did not want to fight him; that I just wanted to have a friendly conversation with him. He then got up, and me and him left there and went out towards the gate." By all the evidence it is shown that they walked off apparently friendly, side by side out through the gate in the side fence of the |