majority">Wilhes, eT.

Defendant is convicted of murder in the second degree and sentenced to fifteen years in the State prison, and has appealed.

The killing of Erb Willhite by defendant is admitted, and the contention . on the merits is that it was -done in self-defense, or, if this may not be sustained under the proof, that there was not such malice as would make the killing murder in the second degree, but that it was done' in a sudden heat of passion provoked by a blow from the deceased.

The State insists, however, that there was . an old grudge between the parties arising out of a *206former difficulty with a brother of the defendant, and that the killing was malicious and unjustifiable.

The defendant has been ably defended and his cause has been elaborately presented by learned counsel, and several assignments of error are made, in addition to an oral argument on the facts and merits of the case.

It is objected that Howard Smith and J. R. Robbins, two of the jurors who tried the defendant, were incompetent to act as such. These gentlemen, on their voir dire, stated that they had formed and expressed an opinion as to the merits of the case and the guilt of the defendant; that this opinion was based upon information which they relied upon and believed to be true; that they had read the newspaper accounts of the killing, but that they did not know that those from whom they obtained their information knew or professed to know the circumstances of the ease; that they had a fixed opinion based upon this information, which they regarded as true and reliable, and one which it would require proof to remove; that they could, however, try the case according to the ' law and evidence, and give the defendant a . fair and impartial trial. The parties were held by the Court to be competent; were accepted by the State but challenged by the defense, and were placed on the jury over the protest of the defendant.

*207Tbe defendant exhausted all his challenges in making np the jury, and was forced to accept a juror over his peremptory challenge. This is assigned as error.

We are of opinion that under ' the ruling of this Court in Woods v. The State, 15 Pickle, 182, there was no error in. accepting these parties as competent jurors. They could not say that the accounts which they had heard and read were given by persons who knew or professed to know the facts, and they stated that they could render a verdict impartially upon the evidence, notwithstanding . these preconceived opinions, which . were formed, as we think, from rumor and not from any account by any one purporting or assuming ■to know or state the facts. We think the statements they had read and heard of the facts must be ‘ treated as rumor and do not disqualify the persons from acting as jurors.

It is ' next assigned as error that after the jury had retired to consider of the verdict, and while the Court was not in session and in the night time, and in the absence of the defendant, and without his knowledge or consent, or that of his attorney, the trial Judge appointed one W. D. Passons to assist the officer in charge of the jury. He was sworn, and, in connection with the other officer, waited upon the jury. The bill of • exceptions does not state the reason why this additional officer was selected and *208sworn. It appears, however, from an affidavit made on the motion for a new trial by the officer in charge originally, that one William Robinson had obtruded bis presence on the jury on two or more occasions, and while it does not appear -that he held any improper communication with the jury, yet some of the jurors thought his conduct was improper and asked the officer in charge to apply for another to assist him. The Judge was telephoned to about the matter, and went to the hotel where the jury was quartered and selected Passons and swore him in to assist the regular officer. Some -three or four of the jury were sick and seemed to be alarmed at what was being given them to eat at the hotel.

We think there is no reversible error in this action of the trial Judge. He was on the ground and saw and knew all the circumstances, and must have been convinced that it was necessary, under the circumstances, to have an additional officer to handle the jury. There is no valid' exception or objection made to the party selected to aid the regular officer, and it is not stated that he had any intercourse with the jury, but was merely assisting to wait upon them; an emergency having arisen in the night time for this additional officer, it is not reversible error in the trial Judge to make this provision without attempting to convene Court and have the jury, *209defendant, and attorneys present when he made the appointment.

It is next objected that there was improper conduct on the part of the attorney for the State. The defendant offered to read the deposition of one Noa, when the District Attorney stated orally in open Court, in the presence of the jury, that the witness had been rendered infamous and had been sent to the penitentiary for stealing mules; that he did not have the record to establish the. fact but that he had a witness who would prove it, and proposed to introduce and examine him if there was no objection, adding that he knew that it would be incompetent unless there was no objection, and asked counsel for defendant if he would object. The defendant’s counsel objected, and thereupon the District Attorney withdrew his exception to the deposition, and it was read.

The trial Judge stated in open Court that the proposition of the District Attorney was improper. This statement and proposition of the District Attorney was improper, and should not have been made. While the record is meager as to what the Court stated, it does appear that the trial Judge said that it was improper and the District Attorney, upon objection, withdrew the statement and proposition, and the deposition was read without further exception. This was all that could be done to rectify the error, and we do not think it of such importance *210as to be reversible. Other objections were made to statements by the District Attorney, but we do not consider them of reversible importance. We are also of opinion that no sufficient ground for continuance was laid. The case had been pending for some time and had been twice tried. No special effort appears to have been made to get absent witnesses, and there was unnecessary delay in .applying to have them attached. The evidence of. the absent witnesses appears to be merely cumulative. There are other assignments which we do not deem material.

Coming to the merits _ of the case the defendant’s version is that he and his father were ref-turning to their home from Sparta, driving a wild team of horses in two-horse buggy; that they met the deceased and witness, Burgess, driving some calves in an opposite direction, and they were hallooing quite loudly, more so than was necessary to drive the cattle, but as if they were drunk. They met in a lane, and as the cattle came running along they frightened the horses and caused them to turn the buggy out of the road on the side and upon a bank, and threw him out. Defendant’s father drove the buggy up the road about eight steps from where it turned over, and left the defendant standing at that place, where the deceased and Burgess came up and began cursing him; that he said to deceased that he wanted no fuss, and deceased *211called' Mm a damned liar, wben he replied he could take that from him; that he then started to get in his buggy, when deceased stepped between him and the buggy and called him a damned liar again, and he replied that he was another, and deceased then struck at him, but he warded off the blow to a»- considerable' extent, so that he only hit his hat, but immediately struck him again in the eyes and knocked him down backward: that he caught on his hands; that de- ■ ceased threw his hand into his pocket in front, and defendant then pulled his pistol and shot, firing at him four times. He thought deceased was trying to draw a knife or pistol, and he shot because he was afraid of being killed; that he begged him, when the quarrel first commenced, to get on his horse and go on, and that he wanted, no difficulty, and had nothing against him; that deceased and Burgess came back to where der fend ant was; that after the shooting he got into the buggy with his father and went • on home, about two and . one-half miles, and stayed there until arrested; that his father told the deceased, when they were • coming down the road driving the calves, to hold up, that he was searing the horses, and that he replied that the .road was free, to ■ let thein run.

Defendant and his father had some whisky in the buggy, and he had • taken two or three drinks, . but they were not drunk; that he was *212occasionally in tbe habit of carrying a pistol, but did not wear it all the time; that deceased never told him during the difficulty that he had no pistol. The defendant states that he had shot at another person three times on a previous occasion, but that Williams, the other party, had shot at .him, and that he had a fight up at a sawmill, but denied other difficulties about which he was questioned i that the next day after the shooting he went hunting in the mountains ' and stayed several days; and was arrested while going home just before day; that he got money and made arrangements to leave the country; that he was arrested about three months after the killing and had been dodging the officers, and that during the difficulty he had his hand on his hip, an attitude usual to him.

The testimony of the father is substantially the same as . that of defendant. It appears that Oorobs, Burgess, and Will Jet were the only other eyewitnesses of the immediate difficulty. Both Jett and Burgess were with deceased when they met defendant and his father. Burgess’ version is that as they passed the buggy defendant’s father said something; that he helped to turn the horses and buggy baek into the road, and while he was doing so defendant went down the road towards Willhite and took hold of the bridle of his horse and said: “You run over Charlie, but you can’t run over me;” Willhite replied that he *213did not run over Charley, and defendant called him a liar. Willhite replied he did not want any fuss;, that defendant had his hand on his pistol. Willhite got off his horse and threw the reins over a bush at the side of the road and told defendant not to do anything to him, and defendant told him to get on his horse and go on home or he would blow his. head off; that defendant had his hand under his coat, but whether in his hip pocket or not he could not tell. A few words passed, and defendant called Willhite a liar and son of a -, and Willhite thereupon struck him in the face and knocked him back, and ' defendant drew his pistol and fired four times.

On cross-examination this witness confessed 'to many misdemeanors and crimes that he had committed, such as stealing watermelons and whisky, and causing disturbances at church, and stopping ihe mail, and that he had paid to get out of a great many scrapes — so many that he could not remember them; that he seduced his two 'cousins, and that he never stole anything he did not need; that he was a chum of the deceased and related by marriage; that Willhite was between the defendant and his buggy when he was shot, and that the defendant was not doing anything to deceased when he struck him, except calling him a liar and a son óf a--. In his re-examination the witness attempted, with poor *214success, to explain bis many escapades. He also stated that tbe deceased struck at defendant twice, but he thinks hit him only once, and staggered him back, but did not knock ' him down.

Will Jett, the other witness, was a negro, and testified to substantially the same state of facts as Burgess. lie corroborates him in the statement that after defendant got out of the buggy he went on down the road to where deceased was, and that lie took hold of his bridle reins and told deceased he could not. run over him like he did over Charley; that • deceased denied running over Charley, and got down off his horse, and defendant called .him a damned liar, and told him to get on his' horse and go home or he would blow his head off; that defendant had his hand under his coat all the time while talking to deceased; that deceased told him he was not armed and wanted no fuss; that when Willhite struck defendant he fired, but Willhite did not fall; that the first thing Willhite said in the trouble was that he had nothing against defendant and had nothing to fight him with; that after the trouble he went away from the county, at defendant’s request and on his money; that Will-hite was between the defendant and his buggy when tbe shooting ■ occurred, and was doing nothing but talking and swearing.

The physician testified that Willhite was shot in the right side, about . two inches below the *215right nipple. The ball ranged downward and went through the right lung, making a large wound, which caused the death; that ’Willhite was not under the influence of whisky when he was shot.

The 'character of the main witnesses is severely attacked, and it must be confessed that they do not well stand the test, especially Burgess; but it seems the jury believed them, and there is no very great difference between their statements and defendant’s, except in the feature that they say the deceased told defendant he was not armed, and that the defendant advanced upon the deceased by going down the road to him.

■ It is earnestly insisted the facts do not make out a case of murder in the second degree, but at best only manslaughter done in a heat of passion. There is evidence tending to show something of a grudge by defendant against deceased, on account of his former treatment of his brother Charley, but it is insisted the real cause . of the killing was the hot blood aroused at the moment by the blow which the deceased gave the defendant while intercepting him from his buggy.

The defendant denies that he made any reference to the former difficulty with Charley, but we think the weight of the evidence is that he did refer to it.

There are other features in the case, but we do not think they are of sufficient importance *216to pass on them specially. We think the weight of the evidence is that the defendant advanced upon the deceased in a threatening manner after he was thrown from the buggy, and cursed and abused him,' and that he shot the deceased when he was in an upright position, and not . on his knees; that deceased was unarmed and the defendant referred to the previous difficulty between deceased and his brother, showing an old grudge, and under these facts he is guilty as found by the jury, and the judgment is affirmed with costs.

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