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1899, p. 220, it provided for like elections to, tion embracing such territory is valid and be held to prohibit the large live stock, legal. horses, mules, jacks, jennets and cattle, from running at large. These various acts have been construed both by this and our civil courts from time to time. We have again considered and eviewed the decisions, both civil and of this court, on the points raised by appellant, as well as the authorities cited in appellant's brief herein.

[1] This court in Neuvar v. State, 163 S. W. 58, expressly decided appellant's first ground against him. We have no doubt of the correctness of that decision, and that Weimar could be, as it was, embraced in said district 8, and the election was not invalid because thereof.

[2] We also think it clear, under the statute and the decisions of this court and the Supreme Court, that the two subdivisions of said district 8, in which previous stock law elections had been held and carried, could be embraced therein together with the remaining portion of said district 8 in which no stock law election had been held. Ex parte Thompkins, 47 Tex. Cr. R. 358, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63.

Prior to the decision of the Thompkins Case, supra, this court had held in Ex parte Heyman, 45 Tex. Cr. R. 532, 78 S. W. 349, and other cases since then following that decision, that under section 20, art. 16, of our Constitution, requiring the Legislature to pass laws authorizing certain subdivisions of a county to hold elections to determine whether or not the sale of intoxicating liquors should be prohibited therein, one or more such subdivisions of a county wherein such election had been held and carried could not be combined with any other such subdivision, so that a valid election could be held in such combined divisions. But this court, through Judge Henderson, in Thompkins Case, supra, pointed out the distinction and difference between that section of the Constitution and those regulating stock law elections, and in effect held that the doctrine announced in the Heyman Case was inapplicable to stock law districts, and the effect of the decision and the principle announced in the Thompkins Case is that the whole of another or other districts wherein the stock law election had been carried could be combined with another, and with territory in which no election had been held, making a new district, and that an election held in such new district was valid. We have no doubt, under the stock law constitutional provisions above quoted and the statutes passed thereunder, that one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district, as

[3] Besides this, since the decision in the Heyman Case, supra, and all those following it were rendered, the Legislature of this state has taken the decision of all such questions from this court and given the civil courts exclusive jurisdiction to determine the validity of any such election, under the liquor prohibition constitutional provision, by the act of 1907, passed at the first special session of the Legislature (page 447). Our Supreme Court, in Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635, and other cases, and the Court of Civil Appeals at Galveston, in the recent decision of Scurlock v. Fairchilds, 159 S. W. 1001, have held that such districts can be combined and made a new district, and that such an election held therein would not be invalid because thereof. The principles announced in those cases are exactly applicable to that question in this case, and we would follow the civil courts on such questions. The reasoning of the two decisions, just above cited, in our opinion, is unanswerable and conclusive of the question. Under the law as it now is, that question under the liquor prohibition constitutional provision cannot again come before this court, so that, the effect of the said decision in the Heyman Case, supra, and others following it, is in effect done away with.

[4] The petition for the election in this case having been filed before the August term, 1913, of the commissioners' court convened,

was properly acted upon and granted and the election ordered at that term of court. The amendments thereto, made as shown above, did not render the petition a new one, so that the court could not act thereon at that term.

[5, 6] The statute (R. S. art. 2276) requires the commissioners' court to cause to be procured and kept in the county clerk's office suitable books in which shall be recorded the proceedings of the court. One of these books so procured and kept in the office seems to have been a book in which the record of the result of all elections was entered, and, the tabulated returns of this election having been recorded therein, substantially complied with the law. The minutes of the commissioners' court need not necessarily be kept in any one book. Various books for the record of the various proceedings of the court may be kept. We know of no law that requires the proceedings of the commissioners' court to be recorded in any one book. Even if the tabulated returns had been omitted to be entered in the proper book by the clerk, that certainly could not be held to invalidate the whole election and the validity of the law, when every other essential had been fully and completely complied with, and there could be no possible doubt from the orders and minutes of the court that the election was carried, as shown by the tabulated re

ties in conducting the stock law election would not render it void. Hannah v. Shepherd (Civ. App.) 25 S. W. 137.

In our opinion the stock law in said elec-second degree, and he appeals. Affirmed. tion district 8 in Colorado county was in

every way valid and legal against any and all of appellant's contentions. The judgment is therefore affirmed.

CAREY v. STATE. (No. 2851.) (Court of Criminal Appeals of Texas. April 8, 1914. Rehearing Denied May 27, 1914.) 1. CRIMINAL LAW (§ 829*) — REQUESTED INSTRUCTIONS-REPETITION-RETREAT.

Where the charge of the court on the right of self-defense did not limit or circumscribe the defense by charging as to provoking the difficulty or in any other manner, and charged that a person unlawfully attacked need not retreat before taking life in self-defense, it was not necessary to give a requested charge applying the

law of retreat to the facts in the case.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 2. HOMICIDE (§ 300*) - INSTRUCTIONS SELFDEFENSE-RIGHT TO CARRY ARMS.

Nor was it necessary to give a requested charge that the defendant had the right to carry arms in his necessary defense.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. § 300.*]

3. CRIMINAL LAW ($ 814*)-INSTRUCTIONSAPPLICABILITY TO EVIDENCE.

Where there was no testimony that there was any usual road which the defendant might have taken to his destination rather than the one he did take, and which led by the land of deceased, it was not necessary for the court to give a requested charge that the defendant was not bound to take some other road or diverge from his usual course to avoid meeting the de

ceased.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. 8 814.*]

4. CRIMINAL LAW (§ 1172*)—APPEAL-HARM LESS ERROR-INSTRUCTIONS.

Where a charge on self-defense, relating to

the manifest intention of the deceased to execute threats previously made, through inadvertence used the word "excuse" instead of "exe; cute," but it appeared that the word was read "execute" by all the attorneys and by the judge, the error was not prejudicial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.*] 5. CRIMINAL LAW (§ 1186*)-APPEAL-HARM

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Bun Carey was convicted of murder in the

LESS ERROR-INSTRUCTIONS-REVERSAL.

Under Code Cr. Proc. 1911, art. 743, forbidding the reversal of a judgment for an error not calculated to injure the rights of the defendant, error in a charge which required the jury to believe that the threats which were communicated to the defendant were actually made by the deceased, and that they were threats to take the life of defendant and to do him serious bodily injury, was harmless, where the evidence was uncontradicted that the deceased did threaten the defendant with death and also with serious bodily injury.

C. Nugent, of Matador, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of murder in the second degree, and his punishment fixed at 10 years' confinement in the penitentiary.

It is unnecessary to make any extended statement of the evidence. It raised the issue of murder in the first and second degrees, self-defense generally, as well as selfdefense predicated on previous threats. The court also charged on manslaughter.

Appellant and deceased, Will Griffin, were

both tenants on the Cage farm and had been for some time. They lived 400 or 500 yards apart and in the same field. The land they respectively rented adjoined. No fence separated them, merely a turn-row. For some weeks prior to the killing deceased claimed that appellant was trespassing on his part of the land and taking some of his away from him and complained to appellant and others thereabout. Appellant denied this and claimed that he was not trespassing on any of deceased's land but had only his own. Appellant claimed there was no ill will on his part towards deceased because of any of the troubles between them, but that de

ceased had ill will towards him thereabout. On the morning of the killing, March 17, 1913, appellant had a business engagement in the town of Stephenville, some three or four miles distant. He at first intended to go horseback, but his wife, learning he was going and wanting some groceries and another article, wanted him to go in his wagon, but he claimed he did not have time to do all the shopping she wanted done, and instead of going in his wagon he would go in his buggy and get her the groceries she wanted. He thereupon hitched his horse to his buggy and started to town. The road to town went from his house straight down beyond deceased's house. That was the only practical road to town and the one, not only usually traveled by all the other neighbors, but by appellant himself. When he started to town he took with him his 32 caliber, 9 ball pistol on his person.

Notwithstanding the said trouble between appellant and deceased of several weeks' standing, each had been at work from time to time and practically all the time in their respective fields. The deceased during the time worked up to within 75 or 100 yards of appellant's house. On the morning of the killing, and before he started to town, appellant had been in another direction a few miles on horseback to look at some yearlings

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3215-3219, 3221, 3230; Dec. Dig. & 1186.*]

Davidson, J., dissenting.

and attend to some other business. He took | he had no weapon of any kind on or about with him his pistol on that occasion. The his body when killed and had only a small deceased that morning was working his pocketknife in his pants pocket, and it closed. land in his part of the field with a double | Deceased's wife testified he had no weapons team, cutting stalks with a riding stalk of any kind. Just after the shooting appelcutter. One end of the rows where he was lant ran down the road towards deceased's cutting stalks bordered on said road, and in house some distance, from 50 to 100 yards, his work, going from one end to the other, then turned and drove rapidly in a lope he approached near said road, when he would back to his own home. Upon reaching it, turn his team and stalk cutter around and Mrs. Head, who was one of his neighbors start in the opposite direction. Appellant and visiting his wife when he started to said he did not know at the time he left go to town, and when he thus returned, his home or started to town or prior thereto testified in effect that when she heard the that deceased was at said work in his field, first shot she was in the house but at once and that he did not see him or know that he went to the door and thence to the front was so at work until he had gone some dis- gate, and that as appellant ran up to his tance from his home and got 50 or 75 steps house, said to his wife, "Lottie, run look in from him, when he discovered him. Then the trunk and get me some more cartridges; the deceased had turned his team at the I will make that damn son of a bitch threatend of the rows starting from the road again. en to kill me." And he further said he That he said nothing to deceased, and de- would go down there and finish him up, and ceased said nothing to him, until appellant kill the whole family if they monkeyed with got about opposite the deceased; the de- him; that she beseeched him not to go ceased up to that time being at or on his back down there because she was afraid stalk cutter. Appellant testified that deceas- that deceased's brothers would kill him (aped then said to him, "Carey, God damn you, pellant) if he did. Appellant took his horse stop.' I told him, said, 'Will, go on and out from the buggy as quickly as he could, leave me alone; I don't want no trouble saddled him, and went in a fast lope to Mr. with you; and he said, 'Carey, I am going Lucas', who was in sight in his field some to kill you;' and I told him to take the distance away, and when he ran up to Lucas land and go on with it; and he came on he said, "Mr. Lucas, I want you to go and with the same words, said he would kill tend to Will." Lucas said, "What is the me." Appellant then further testified that matter?" Appellant said, "He threatened to the deceased approached to within one or kill me and I shot him." Lucas said, two steps of him, run his hand in his pocket, "Whereat?" And appellant said, "Down in and he then got his pistol and shot de- his field;" and appellant immediately rapceased in self-defense while deceased was idly rode away. thus near to and approaching him and in the act of assaulting him. Appellant claims he sat in his buggy and never got out of it during the whole time up to the shooting. Appellant claims that he shot at him three or four times. Others who heard the shots in effect say several times. It was shown, without contradiction, by an examination of the body of the deceased that two balls only struck him, one in the left side of the left leg four inches below the knee, the ball striking the bone; that the only other shot that struck him entered his body two inches

Several witnesses testified that, very soon after the killing, some of them, hearing the shots, and their attention being attracted to the place of the shooting thereby, went to the body of the deceased; that they examined for the tracks of the deceased at the time and found that his tracks where he had stopped his stalk cutter on this occasion showed that he was not nearer than about 10 steps from the said road; and that none of his tracks there showed that he went near

the road.

to the left of his left nipple, went entirely through the body, and emerged under the arm pit of the right arm; that this ball went through the aorta and killed him. The effect of the doctor's testimony is that the wound was immediately fatal, and deceased could not have gone any distance after being so shot. The body of deceased was found, as the witnesses show, from 10 to 17 steps from the road in which appellant sat in his buggy; that his feet were towards the road and his head further therefrom, his left hand down towards his side, and his right extended up above his head; that, immediately after the first shot, witnesses, hearing it, saw deceased's team running

Unquestionably appellant's testimony raisHis, and the ed self-defense in his favor. testimony of others, also raised self-defense based on threats of the deceased.

Appellant requested several charges on these subjects, and in some particulars attacks the charge of the court thereon. We will therefore here quote the whole of the

court's charge on those subjects. It is:

"(26) Upon the law of 'self-defense,' you are instructed, gentlemen, that homicide is permitted by law when inflicted for the purpose of preventing the offense of murder or the infliction of serious bodily injury, when the killing takes place under the following circumstances: First. It must reasonably appear by the acts or by the words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit such murder or to inflict such injury. Second. The killing must

act of committing such murder or of inflicting such injury or after some act done by him showing evidently an intent to commit such murder or to inflict such injuries.

"(27) A party whose person is unlawfully attacked is not bound to retreat in any event in order to avoid the necessity of killing his assailant.

“(32) Again, if you believe from the evidence in this case that the deceased unlawfully attacked the person of defendant, or if it reasonably appeared to the defendant, viewed from his standpoint, that the deceased was about to make, or was in the act of making, an unlawful attack upon him (the defendant), or if you have a reasonable doubt as to whether or not the deceased did make such an attack or was about to make such an attack, or as to whether or not it reasonably appeared to the defendant that the deceased was about to make such attack, viewed from the standpoint of the defendant, then you are instructed that the defendant was not bound to retreat in any event in order to avoid the necessity of killing the deceased."

ing or circumscribing appellant's defense on either of these grounds.

It will be seen from this charge that the court charged self-defense and defense based on threats, without in any way charging on

[1] Appellant requested, but the court refused to give, his special charge No. 3, which is, omitting the heading:

"(28) An attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or some serious bodily injury. But, in this connection, you are instructed that it is not necessary to the right of self-defense that the danger did in fact exist; if it reasonably appears from the circumstances of the case that danger existed, the person threatened with such apparent danger had the same right to defend against it and to the same extent that he would have were the danger real, and, in determining whether there was reason to believe that danger did exist, the appearance must be viewed from the standpoint of the defendant and from no other standpoint.

"(29) Now, therefore, if the defendant killed the deceased, he was justified in doing so, if he did so to prevent the deceased from murdering or inflicting serious bodily injury upon him (the defendant), provided it reasonably appeared to the defendant by the acts or by the words, coupled with the acts of the deceased, taking into consideration the relative strength of the parties and other circumstances of the case, that it was the purpose and intent of the deceased to murder the defendant, or to inflict serious bodily injury upon him (the defendant), provided the killing took place while the deceased was in the act of committing such murder or of inflicting such injury on the defendant or after some act done by him showing evidently an intent to murder the defendant or to inflict serious bodily injury upon him (the defendant), viewed from the defendant's standpoint.

"(30) Where the defendant, accused of murder, seeks to justify himself on the ground of threats against his life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a jus-occurred to appellant by not further applytification for the offense, unless it be shown ing it, nor can we understand how it could that at the time of the homicide the person have been otherwise applied than it was by killed, by some act then done, manifested an intention to excuse (execute) the threat so made. the court's charge.

"(31) Now if you believe from the evidence in this case that prior to the homicide the deceased had made threats against the life of the defendant and to inflict serious bodily injury on defendant, and that at the time of the homicide the deceased, by some act then done, manifested an intention to excuse (execute) the threats so made, or, if you have a reasonable doubt as to whether or not he did, then you will give the defendant the benefit of such doubt and acquit him.

[2] Again he complains that the court did not tell the jury that, in view of the threats by deceased, appellant had the right to carry arms in his necessary defense. This was not necessary nor in any way called for. The court, as above stated, did not charge on provoking the difficulty, nor in any other way by his charge curtail appellant's right of self-defense, either generally or because of threats, but in the broadest and most comprehensive sense embraced both of these subjects completely and aptly in appellant's favor. Appellant seems to confuse when such charge ought to be given. If the court had charged on provoking the difficulty by appellant, or had otherwise restricted or limited his complete right of self-defense, then perhaps such charge should have been given. It has repeatedly and expressly been held by this court that it is only necessary or proper to give such charge when the court charges on provoking the difficulty, or otherwise limits appellant's complete right of selfdefense. Williford v. State, 38 Tex. Cr. R. 392, 42 S. W. 972; Fox v. State, 158 S. W. 1143.

"The party whose person is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. Therefore you are instructed that if you believe from the evidence in this case that the defendant, Bun Carey, knew that the deceased, Will Griffin, was working in his field by the side of the public road which Carey usually traveled in coming to Stephenville, and Carey was traveling said road on his way to Stephenville at the time of the homicide, defendant was not bound to take some other road to town or diverge from his course in order to avoid a meeting with the deceased, and the defendant had the further right to arm himself to protect his life against any former or expected attack upon him by the deceased, nd to carry said arms whenever and wherever he believed his life to be in danger, and was not bound to retreat in any manner, and the fact that he did so would not in any manner militate against, alter, or abridge his right of self-defense, if he acted upon the reasonable appearances of danger or serious bodily injury, or death, either one or both, at the time of the homicide."

Appellant claims that the court's charge, above quoted, did not apply the law given therein that, when a person is unlawfully attacked, he is not bound to retreat in order to avoid the necessity of killing his assailant. It is not shown by his contention, and we cannot understand, how it could be more aptly or completely applied to this case than it was by the charge of the court above quoted. It specifically tells the jury this in the first part of the charge, and again in the latter part, and no possible injury could have

ought to have told the jury that the appellant was not bound to take some other road to town or diverge from his usual course in order to avoid meeting the deceased. The testimony in this case does not raise any such issue. The state never even asked appellant anything about it, either directly or indirectly, nor did the state in any way contend, so far as this record shows, that appellant ought not to have gone this road to town but some other, but it was conceded by all of the state's testimony, where the subject was mentioned at all, that this was the road to town, the one usually traveled, not only by appellant, but by everybody else in that neighborhood. Some time after the killing, the appellant had a surveyor to go out on the ground and measure the distances and tell about the timber intervening between appellant's house and where he killed the deceased. Not a word of this testimony indicates that there was any other road that he should or could have traveled, other than the one he was traveling, in going to town. All this testimony was introduced for the purpose of attempting to show that Mrs. Head, one of the state's witnesses, could not have seen the deceased, nor his team, at the time nor immediately after the shooting, because of the obstructions from appellant's house to where deceased was killed, for the purpose of disputing her on the point when she testified what she saw of the parties at the time and immediately after the killing There was much testimony on this subject, and by experiments from both points by various witnesses; some placing themselves at appellant's house and gate, and others where the deceased's body fell, and looking from one to the other, some testifying that she could have seen, others that she could not. None of this testimony was introduced or remotely used for the purpose of showing that appellant ought to have taken some other route to town instead of the one he did. Appellant requested, and the court refused to give, his fourth special charge. Omitting the formal parts, it is:

it is only necessary to defendant's right of selfdefense that he had been told that deceased had threatened his life or to do him some serious bodily harm, and that the deceased at the time manifested an intention by words, acts, or conduct to execute said threats, viewed from the standpoint of the defendant alone, sufficient to raise in the defendant's mind a reasonable expectation of death or serious bodily harm, and, if so, defendant had the right to kill the deceased, and if you so believe from the evishould acquit the defendant and say by your dence, or have a reasonable doubt thereof, you verdict not guilty."

In connection with the refusal of the court

to give this charge, appellant again criticises the court's charge on the subject of threats above copied, basing his complaint largely, if not wholly, in this court, on two grounds: First, that it required the jury to believe that the threats relied on had been actually made; second, that the court's charge required the jury to believe, both that the deceased had threatened appellant's life and had also threatened to do him serious bodily injury. Whereas he claims that, if deceased made the threats to do either, he was entitled to act with reference thereto.

[4] It will be noted in the court's charge above copied that in paragraphs 30 and 31, where the statute uses, and the court should have used, the word "execute," the court, by inadvertence, used the word "excuse." As to this, the court explains that the use of the Word "excuse" in his charge was an error of the attorneys on either side, and evidently the typewriter, not detected by him, nor by not by the jury, and he says that, before the argument of the case, he gave his charge to appellant's attorneys, and they each, in reading it to the jury, read the word "excuse" "execute," and discussed the case on that theory, and that alone, as to this word, and that he, when he read his charge to the jury, read the word therein as "execute" and not "excuse." We think, under the circumstances, no possible injury could occur or did occur by the use of this word therein, taking the context and the circumstances into consideration.

"In connection with the law of self-defense, you are further instructed: That if you find

[5] Now as to the question of the court's charge requiring that the threats were actually made and the charge requiring the jury

and believe from the evidence in this case that Will Griffin, the deceased, threatened to to believe that deceased made threats both take the life of the defendant, Bun Carey, or to take appellant's life and also threatened to do him some serious bodily harm, and that to do him bodily injury. It is now elemensaid threats were communicated to him prior to the killing, or that deceased at the time of the homicide threatened to take the life of the defendant, and at the time of the homicide the deceased, by words or acts, or gestures, or any overt act, manifested an intention to execute said threat, and, viewed from the standpoint of the defendant alone, it produced in the defendant's mind a reasonable expectation of death or serious bodily injury, or if you have a reasonable doubt thereof, you should acquit the defendant, and this you should do although you may believe at the time that said threats were the many cases. untrue and that Will Griffin did not intend to

tary and well established in this state, both by statute and a large number of decisions of this court, that this court is not authorized, in fact, by statute expressly forbidden (C. C. P. art. 743, as before the recent amendment thereof), to reverse any judgment of the lower court "unless the error appearing from the record was calculated to injure the rights of the defendant." It is unnecessary to cite

The evidence in this case, without con

kill the defendant, Bun Carey. In this contradiction and without contest by the state,

nection you are further instructed that it is immaterial whether any threats were made prior clearly shows that deceased did make certo the homicide or that said threats were true; tain threats against appellant, and that he

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