126 S.W. 1145
WARD 
v. 
STATE.
Court of Criminal Appeals of Texas.
February 9, 1910.
Rehearing Denied April 13, 1910.
Page 1146
        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Dave Ward was convicted of murder, and he appeals. Affirmed.
        R. L. Williford, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
        RAMSEY, J.
        Appellant was indicted in the District Court of Freestone county on February 7th of last year, charged 
with the murder of one R. J. Sloat. On February 29th thereafter, on trial, he was found guilty of murder in 
the second degree, and his punishment assessed at confinement in the penitentiary for a period of five 
years.
        1. The error first assigned, and, as we gather from the record, most relied upon for reversal, was the 
failure of the court to submit the issue of manslaughter to the jury. A proper decision of this question 
demands that we shall make at least a brief statement of the facts. The deceased was a veterinary 
surgeon living in the town of Teague, and was, to some extent, engaged in raising chickens, having a 
well-prepared place including an incubator. Appellant was a barkeeper for one Riggs who owned a saloon 
in Teague. Early on the morning of the day of the killing, deceased shot two dogs belonging to appellant of 
which appellant was promptly informed, and at which he became greatly enraged, and was apparently in 
great distress of mind. The record further shows that warrants were sworn out against Sloat for shooting 
the dogs, and he was arrested. On that day appellant took advice as to whether or not the prosecution 
would bar his right to recover damages for the value of his dogs. By at least one witness, threats were 
proved as having been made by deceased against appellant which were communicated to appellant. The 
killing occurred in the afternoon about 2 o'clock. The immediate facts were that the deceased was in a 
furniture store in Teague, when appellant appeared in the doorway and accosted deceased with the 
statement, "Pay me $300 for my dogs." One Ponce, who sought to interfere, was, according to his 
testimony, threatened by appellant with being shot, and he was accordingly compelled to desist. According 
to the testimony of several of the witnesses deceased had up one or both of his hands, and uttered no 
words towards appellant, except, "Don't do that," and when he was doing nothing, and making no 
demonstration; he was twice shot by appellant. Appellant's statement is to the effect, in substance, that 
he was unable to give a very accurate statement of just what he did do, but his testimony raises the issue 
and tends to establish the fact that deceased had moved behind a table on which were some rugs, and 
that these rugs were piled high enough so that only deceased's breast was visible, and at and just before 
the time he shot deceased had his left hand up and his right hand down and out of sight, and was, as 
appellant believed, in the act of making an attack on him when appellant fired. There was nothing 
occurring at the time of the shooting on which to base a charge of manslaughter. If appellant's statement 
is to be believed, self-defense was raised, and the issue was sharply drawn as to whether the homicide 
was justifiable or not. An offense against one's property, even if wrongful, does not raise the issue of 
manslaughter unless there are other circumstances in evidence raising this issue.
        2. Complaint is made of the use of the words "great bodily harm" in the twentieth paragraph of the 
court's charge. This paragraph should be construed in connection with the one preceding it. These two 
paragraphs are in the following language:
        "The defendant is permitted by law to defend himself against any unlawful attack, reasonably 
threatening injury to his person, and is justified in using all necessary and reasonable force to defend 
himself, but no more than the circumstances reasonably indicated to be necessary. Homicide is justified 
by law when committed in defense of one's person against any unlawful and violent attack, made in such 
a manner as to produce a reasonable expectation or fear of death or some serious bodily injury."
        "A reasonable apprehension of death or great bodily harm will excuse the defendant in using all 
necessary force to protect his life or person. And it is not necessary that there should be actual danger, 
provided he acted upon a reasonable apprehension or appearance of danger, as it appeared to the 
defendant from his standpoint at the time. In such case the defendant, acting under such real or apparent 
danger, is in no event bound to retreat in order to avoid the necessity
Page 1147
of killing his assailant, but is justified in killing him."
        It will be observed that in the first paragraph of the charge quoted above, the words "or serious 
bodily injury" are used; whereas, in the last paragraph the court uses the expression "or great bodily 
harm." We think that when construed all together that the meaning of the two terms are identical, and 
that no jury could possibly have been misled by the use of the language complained of. It is always, of 
course, preferable and the better practice to use the precise terms of the statute, but where these words 
are once used and thereafter there is a mere slight departure from the literal words of the statute, but the 
obvious equivalent of the same are used by the court, we think we would be without excuse in reversing a 
case for the mere fact that the literal words were not employed where their manifest equivalent was used.
        3. Counsel complain that the court erred in the twenty-fourth paragraph of his charge wherein the 
jury are instructed that if they believe that appellant, upon learning that his dogs had been shot, armed 
himself and went to the deceased for the purpose of peaceably demanding of him an explanation of his 
conduct and settlement for his dogs, and not for the purpose of provoking a difficulty, etc. It should be 
noticed and remembered that the complaint of this charge is in this language: "This is error; it is a charge 
on a condition not existing in the case. There was no evidence, direct, circumstantial, or remote, that the 
defendant went to where Sloat was with any intention of provoking a difficulty; but all the testimony was 
to the effect that the defendant neither wanted nor desired a difficulty, nor does the court charge law 
applicable to one who does provoke a difficulty." The entire paragraph of the charge complained of is as 
follows: "Now if you believe that the defendant, Dave Ward, upon learning that his dogs had been shot, 
armed himself and went to the deceased for the purpose of peaceably demanding of him an explanation of 
his conduct and settlement for his dogs, and not for the purpose of provoking a difficulty with deceased, 
and that in the interview between the parties a difficulty arose, in the course of which in his necessary or 
supposed self-defense against what appeared to him to be an unlawful attack upon his person the 
defendant shot and killed the deceased, you will acquit him." The obvious intent and purpose of the court 
in giving this paragraph was to break the force in appellant's favor of his having gone to where deceased 
was, and to inform the jury that if his purpose in going there was to ask an explanation concerning his 
dogs that this would not in any sense impair his right of self-defense, but that he would not be justified in 
going to where deceased was for the purpose of provoking a difficulty. We think in the respect complained 
of, at least, the charge of the court is not erroneous. There is, we believe, some evidence in the record 
tending strongly to show that it was not appellant's purpose in calling upon deceased merely to demand 
an explanation touching his dogs. The evidence shows that, as he went across the street and approached 
the building where deceased was, a friend of his intercepted him, and endeavored to persuade him from 
so doing, but that he (appellant) declined to be intercepted or interfered with, in great anger, and under 
circumstances strongly justifying the belief that he had a far different purpose in going to the store than 
merely to demand an explanation concerning his dogs, and this view is strengthened, if we may look to 
what was said and done, when he reached the store. We are therefore not prepared to hold that there was 
error in the charge of the court in the respect complained of.
        4. Again, complaint is made of the following verbal instruction, or remark, made by the court to the 
jury: "To be guilty of disobedience or violation of these instructions might cause a reversal of the case." 
This was excepted to on the ground that it involved the expression of an opinion by the court that 
appellant was guilty and was a charge on the weight of the evidence. In explaining this bill the court 
states that it was a part of a long and general statement by the court to the jury which he makes a part of 
the bill. This statement is as follows: "Gentlemen of the jury, when you are chosen as a juror to try a 
criminal case, the law sets you apart for that distinct work, and contemplates and requires that you shall 
give your entire time and attention to that work. When you are chosen as a juror in a case of this 
character you are an official of this court, and have a duty to perform which is just as important as mine. 
You are prevented from having any general business transaction during the time you are on the jury, of 
course, if you have some business on hand which demands immediate attention you can go and attend to 
it in the presence of the sheriff. If you desire to send any message home to your family you will have to 
let the sheriff talk for you; you are not permitted to talk to your wife over the telephone, but must let the 
sheriff talk for you. You must keep yourself separate and apart from everybody else except the sheriff. 
The law requires that you go in a body. The law requires that I give you these instructions, and requires 
that you observe them. To be guilty of disobedience or violation of these instructions might cause a 
reversal of the case. I am sure you will not do it if you will think a moment. You will not discuss this case 
with any one or among yourselves. Don't let the case be discussed in your presence by anybody, and if 
anybody persists in discussing it near you or in your presence, or to you, it will be your duty to report it to 
the sheriff and it will be his duty to
Page 1148
stop it. And if he can't stop it just report it to me and I will. I don't know how comfortable your quarters 
will be, but I trust the sheriff will make it as comfortable for you as he possibly can, and I hope you will be 
satisfied. The law imposes a certain amount of jury service upon every one, and if things are not as 
comfortable as you would like, don't blame the sheriff, for he is only doing his duty as required by law. 
And another thing, I request that you do not take intoxicating liquors while you are on the jury; I don't 
know that any of you do, but I request that you do not. Don't come in the courtroom under the influence 
of liquor. Gentlemen, you will be in the courtroom at 9 o'clock in the morning. I thank you in advance for 
strict obedience to the instructions given you." We think that considered all together the instructions given 
by the court to the jury were entirely appropriate, and, indeed, to be commended, and that it is scarcely 
conceivable that any man fit to sit on a jury would or could have understood from anything contained in 
this statement that the court meant to express any opinion in reference to the case.
        5. Complaint is made in the motion for a new trial in respect to the action of the court in overruling 
the application for a continuance. This motion is not in the record, nor is the action of the court touching 
same preserved by a bill of exception, and therefore cannot be considered.
        6. Finally it is urged that the verdict of the jury is contrary to the law and the evidence in that the 
undisputed evidence shows that if guilty at all, appellant was not guilty of any higher grade of offense 
than manslaughter. It is our opinion that manslaughter is not in the case. The only testimony raising the 
issue of self-defense was that of appellant. In the light of the entire record we cannot accede to the 
suggestion that the verdict of the jury is not sustained by the evidence.
        Finding no error in the proceedings of the court below, the judgment of conviction is hereby in all 
things affirmed.
        DAVIDSON, P. J., absent.