The defendant, Dave Drake, was indicted at the March term, 1878, of the Criminal District Court of Galveston County, for the murder of one Henry Snowball. He was tried at the May term, 1878, of said court, convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for the term of his natural life.

The defendant appealed to this court, and has assigned a number of errors committed by the cdurt below on the trial, for which he insists that the judgment rendered herein must be reversed.

The first point urged in his behalf is, that “ the court erred in not having the venire completed before compelling the defendant to begin the selection of a jury, as such ruling prevented him from having a full venire to select from.” It appears from the record that the court below ordered the sheriff to summon sixty men, whose names were given in the writ of special venire facias, to be and appear before the Criminal District Court of Galveston on the day set for the trial of this cause, out of whom to select a jury. No exception is taken to the manner in which the names of the sixty persons in said venire facias were obtained. The sheriff executed said writ, as shown by his return, by summoning *655all the persons named except thirteen, who could not be found. On the day set for the trial, when the ease was called, the persons who had been summoned on the special venire were called for the purpose of empanelling a jury, and no objection was made on the part of the defendant that he did not have a full venire of sixty men to select from, or that he had not been served with a list of the persons summoned upon said special venire. This court has held that, under the law now in force in this State for organizing juries in capital cases, a defendant is only entitled to be served with a list of the persons summoned whose names appear on the writ of special venire. It is not pretended that this right was not accorded to the defendant. Harrison v. The State, 3 Texas Ct. App. 558."

The second point is, that “the court erred in not allowing the defendant to strike from the venire first ordered, .after a second venire had been ordered, because the defendant was entitled to twenty peremptory challenges, and the ruling of the court prevented the exercise of that right, and compelled him to stand a trial before men whom he would have challenged, when he yet had the right to peremptory challenge, said right of challenge being demanded before the jury had been empanelled or sworn. ’ ’ There is a bill of exceptions in the record, taken by the defendant, which recites the following facts: Eight jurors had been empanelled out of the original special venire when it was exhausted, and a new venire was ordered ; and when the return thereof was made, and when the .persons on this second venire were called, the defendant by his counsel claimed the right to challenge and strike from the eight empanelled out of the original venire, as well as from the new venire; which the court would not allow him to do. After both parties had accepted the eight, jurors, and they had been empanelled, neither party could challenge peremptorily among the eight.

*656Onr Code of. Criminal Procedure provides as follows : “Art. 3016.(Pasc. Dig.). When there is pending in any District Court a criminal action fora capital, offence, the district. attorney may, at any time after, indictment found, on motion,, obtain an order for summoning any number of persons, not less than thirty-six nor more than sixty, as may be deemed advisable, from whom the jury for the trial of,such capital caséis tobe selected.’’

“ Art. 3024. In forming the jury, the names of the persons shall be called in the order they stand upon the list,; and if present, shall be tried, as to their qualifications, and, unless challenged, shall be empanelled.”

Section 22. of chapter 76, page .82, of General Laws of 1876 does not apply, as is contended for by counsel for defendant, in the .organization of juries in capital felonies. Both our Supreme Court and this court have passed upon the exact question raised in this assignment. The Supreme Court, in . the case of Horbach v. The State, 43 Texas, 260, held that, in empanelling a jury in a capital case, the names .of the persons summoned should be called in the order they stand .upon the list, and when found qualified they are to be challenged, either peremptorily or for cause, or accepted severally, as each one is determined by the court to be a qualified juror; which is to be continued, one by one, until .the. jury is- fully formed, to the number of twelve. And the court say: “ We know of no law, or established practice under the law, which sanctions the peremptory challenge of a juror by either party when thus placed on the jury, whether it is full or not. There may be discretion in the court for excusing or standing aside a juror after he is thus selected, for some good cause, shown at the time, why the juror cannot or ought not to serve on the jury.”

And this court, in the case of Baker v. The State, 3 Texas Ct. App. 532, in construing said article 3024, said: “ This clearly indicates that each person is to be examined *657separately, and subject to challenge, either for cause or peremptorily, separately, and that these things are to be done before the person is empanelled; and that' to challenge afterwards would not be allowed, except for cause not discoverable on the examination of the person, and set out in the application for leave to challenge.” The judgment of the District Court in each of the above cited cases was reversed because peremptory challenges were allowed to jurors after they had been empanelled as jurors.

The fourth assignment is, that “ the court erred in refusing to allow the defendant to prove threats against T. F. Drake, the brother of the defendant and the manager of the Holmes place, when it had already been shown that T. F. Drake had gone to the city of Galveston and left the defendant in charge of said place, because the defendant was thereby placed in the capacity of his brother, and subject to the same orders of his principal which had offended the accused, and about which orders the difficulty occurred.” We know of no rule of evidence under which threats by deceased against T. F. Drake would be admissible on the part of Dave Drake, in his justification for killing the deceased. The bill of exceptions taken to the rulings-of the court in refusing to permit the witness Matthews to prove threats against T. F. Drake by the deceased does not state what the threats were which defendant desired to prove, or that there were any threats made by deceased to to take the life of T. F. Drake.

The next assignments of error relate to the charge of the court. In order to a proper understanding of these points, it will be necessary to give the substance of the testimony as it appears by the statement of facts.

The deceased and defendant resided in Galveston County. The occupation of deceased was that of a nurseryman. T. F. Drake, or Tom Drake, as he is generally called by the witnesses, "was in the charge of the Holmes place, and *658Dave Drake, the defendant, stayed with him on the place. The deceased lived about one and a-half miles from the Holmes place.' Holmes lived in the city of Galveston, and sold flowers and shrubbery for the deceased. On the day of the killing, T. F. Drake had gone into the - city and left Dave Drake in charge of the Holmes place, with orders not to permit anything to go off of the premises without a written order from Mr. Holmes.

Blount, a colored boy living on the Holmes place, was sent by the defendant on one of Holmes’s horses (a mare) to the Perkins place, which adjoined the premises of the deceased, for some oats with which to feed the horses on the Holmes place. Snowball took the mare from Blount. The boy Blount returned home on foot, and informed the defendant that Snowball had taken the mare from him. Defendant then went to the head of the bed, in another room, got his pistol, buckled it on him, and said he would go over and get the mare.

Joseph Snowball, a son of the deceased, testified that “ on the 4th of March, A. D. 1878, my father, Henry Snowball, had been out in his garden working. He went in and got dinner, and was sitting on the steps of his house, and had been sitting there about a quarter of an hour, when defendant, Drake, came in and said to Henry Snowball: 6 By G—d, Snowball, what are you about?’ Snowball replied, ‘ I know what I am about, and I am responsible for what I have done.’ Dave Drake then commenced cursing him, and called him a G—d d—d s—n of a b—h. My father told him he must not curse him .in that way on his own premises,- and that if he would go out of the gate he would talk to him, but that he would not be sworn at in any such way on his own premises. Drake continued to curse and abuse him. - My father told him to go. off his premises several times, but he would not go. My father then pushed him, by putting his open hand on Dave Drake, and had *659pushed him about half-way from the house to the gate when Dave Drake drew a pistol, a six-shooter, from under his coat, and shot my father, Henry Snowball. The ball entered his left side, passed through his body and right arm. I saw him (Snowball) put his hand up to his side. I also saw the blood. My father then started for the house, and Dave Drake again shot at him. * * * My father got his shot-gun, that was in the house, and came out. Defendant, Dave Drake, was behind the stable, and shot two other shots at my father, and one at me. My father then shot Dave Drake in the hand. * * * My father then became weak, and began to stagger, and I took him into the house. He died on the next day, about ten o’clock; he died of the wound received from Dave Drake; he had no weapon of any kind on him. * * * My father, the day before, had taken from a negro boy one of Mr. Holmes’s horses, and brought him home, and intended to write to Mr. Holmes about it the day he was shot. Several of Mr. Holmes’s horses had died, and they were abysing this one, and father took him to take care of him for Mr. Holmes.”

Mrs. Snowball was also sworn, as a witness for the State, and testified that she “ was wife of the deceased. Was present when deceased was shot; he was in his own yard. Saw Drake, who was using abusive language to deceased, who said he would not be cursed in his own yard. Saw Drake draw his pistol and shoot deceased. The first shot took effect; the second shot passed into the house. Deceased got his gun, after being shot, and shot one time at Drake, who continued to shoot at deceased. * * * Deceased first put his hand on Drake’s shoulder and pushed him, when Drake shot him. Deceased had a pistol in his house, but did not have any arms of any kind on his person when he was shot.” Mrs. Nettie Perkins, a witness for the defence, testified that she “ heard bad language, and heard deceased tell Drake that he must not use such language. Drake said he *660wanted to talk reasonably. Deceased pushed Drake about half-way to the gate ; was pushing him with his open hands, from behind, when Drake turned round and said, 1 Mind what you are about.’ Deceased then threw out both his hands against defendant’s breast; his fists were clenched, but I do not know whether it was a push or a strike, and afterwards pushed him with his double fist, but do not know whether he intended to strike him or not. Drake then drew his pistol and fired. When the shot was fired, she saw the deceased put his hand on his side. Was under the impression that it was Drake that was using the bad language. She was too much excited to pay much attention to what was said. * * * Mrs. Snowball was nearer to the parties than she was. Deceased got his gun, as did young Snowball, after Drake had twice shot at the deceased.”

Sam Perkins, also a witness for the defence, testified that the “ deceased was a rather large man; was quick-tempered.”

It is insisted on the part of the defence that the court, in its charge to the jury, failed to instruct the jury on the different degrees of homicide; that the jury, under the charge, was compelled to find the defendant guilty of murder either in the first or second degree; that the charge of the court did not fully define the law of manslaughter, to which grade of homicide the evidence was sufficient to reduce the offence ; that the charge of the court directed the minds of the jury to the evidence, as established facts, that the defendant had causelessly intruded upon the premises of the deceased, and that the deceased had been killed while in defence of his own property. A careful examination of the charge of the court has satisfied us that the objections made by the defendant to the charge of the court are not well taken. The court, in its instructions to the jury, properly defined the law of murder, giving the jury the legal meaning of the terms “malice aforethought,” and “ express ” and “implied *661malice,” as used in the statute. It also defined the law of manslaughter. We make the following extracts from the charge of the court:

“Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion, arising from an adequate cause, but neither justified' nor excused by law. An assault and battery causing pain or bloodshed would be an adequate cause, and if it actually produced the sudden passion of anger, rage, resentment, or terror, under the immediate influence of which the person assaulted acts, while it does not justify nor excuse, it reduces the offence to manslaughter, if, upon the facts, otherwise the homicide would be murder.” * * * Again, the court instructed the jury : “If you believe from the evidence that the defendant, without malice aforethought, or the purpose to provoke a difficulty and conflict with Snowball, went to his house to see him upon a matter of business, and hot words ensued between them, and Snowball, without justification, struck defendant a blow, causing him pain, and producing sudden passion, or anger, rage, resentment, or terror, under the immediate influence of which he shot and killed Snowball with a pistol, and that the pistol was a deadly weapon, you will find the defendant guilty of manslaughter, and assess his punishment to confinement in the penitentiary not less than two nor more than five years.” “ Every man has the right to defend himself against attack threatening him with serious bodily harm or death, and is presumed to be innocent until his guilt is established by the evidence to the satisfaction of the jury, beyond reasonable doubt; and unless you are so satisfied by the evidence in this cause, you will say by your verdict that you find the defendant not guilty.”

The law of the case was distinctly set forth in the charge. The charge did not force the jury to any particular conclusion. On the contrary, it is not objectionable as a charge upon the weight of the evidence; nor does it intimate that *662defendant had causelessly entered upon the premises of Snowball, and killed him while in the defence of his own property. The court instructed the jury that “ the defendant had a right to go peaceably to Snowball and demand the horse, and reclaim it, if he could do so without a breach of the peace, but not otherwise.” The court properly instructed the jury that a man had a right to control his own home. If another comes upon his premises, and in the presence of his family uses vulgar, indecent, profane, and insulting language, he has the right to put such other person off of his premises by the use of force, such as will reasonably accomplish the purpose. The use of such force as will accomplish the purpose must bo exercised and regulated by the amount of refusal and resistance. If he requires such other person to go, and he refuses, the owner of the premises has the right to reasonably increase the force until it overcomes resistance and accomplishes the purpose. The charge of the court correctly explained to the jury the rights of the owner of the premises under a certain state of facts, without intimating an opinion as to whether or not such facts were proved in the case at bar. A charge of the court which calls particular attention to the facts relied on by the parties, and indicates the law upon such facts, is proper. The principles of law were fully explained to the jury, and the jury were left free in the discharge of their duties as judges of the facts.

The court, we think, properly refused to give the instructions asked by the defendant, because they either do not state the law or are not applicable to the facts.

The first instruction asked by the defendant is as follows :

“ If you believe from the evidence that the defendant had cause to believe that the deceased was armed, and that his actions were such as to lead a reasonable man to believe that deceased intended to use such arms, or to kill defendant, your verdict must be an acquittal of defendant.” There is *663no evidence in the case tending to show, even remotely, that, the deceased was armed at the time he received the fatal shot, or that his actions were such as to induce a reasonable man to believe that he was armed, and intended to use such arms upon the defendant. The circumstances surrounding the defendant at the time of the shooting were not such as to impress his mind with a reasonable belief that Snowball was about to take his life, or do him some serious bodily harm. The proof shows that deceased was unarmed when he was killed.

The court properly overruled defendant’s application for continuance. The application showed no diligence whatever on the part of the defendant to procure the attendance of the absent witness at the trial. The continuance was asked for in order to procure the testimony of James Reymond, who resides in Galveston County, Texas. The fact that Reymond had been subpoenaed as a witness in behalf or the State affords no legal excuse for the failure of the defendant to take any steps whatever to procure the testimony of said witness.

The twelfth assignment is, that “ the court erred in refusing to grant a new trial because of the incapacity of H. F. Hansen to serve as a juror.” One of the grounds set out in defendant’s motion for new trial is, “ that the defendant did not have a fair and impartial trial, in this : that one of the jurors before whom he was tried was, by reason of imperfectly understanding the English language, and for the further reason of his being of very poor hearing, incompetent and incapable as a juror, and defendant refers to exhibit A, hereto, attached and made part hereof:

“ Exhibit A. The State of Texas, county of Galveston : Before me, M. H. Royston, clerk of the Criminal District Court of Galveston County, personally appeared Sydney B. Swift and Robert McNeely, who, after being duly sworn, depose and say that H. F. Hansen, one of the jurors before *664whom the cause of The State of Texas v. Dave Dr alee was tried, was incompetent as a juror, because he was of imperfect hearing, and did not understand the English language ; because of which he was unable to properly understand the testimony.

[Signed] ‘ ‘ Robert McNeelt,

“ S. B. Swift.”

“ The defendant in the above cause being sworn, deposes and says that the above facts were unknown to him until after the trial of said cause.

“ D. S. Drake.”

Exhibit A was duly attested by the officer before whom it was sworn to and subscribed.

The defendant’s motion for a new trial was overruled, to which ruling of the court the defendant took a bill of exceptions. The court, before signing the bill of exceptions, added the following explanation: “ That the juror H. F. Hansen, who was originally sworn as a juror of the regular panel, was examined and tested by the court as to his ability to hear the testimony and understand the language of the witnesses, and the court was entirely satisfied as to his ability, and having been in this case submitted to the usual examination prescribed by law, no objection being made to him, he was accepted, empanelled, and sworn as a juror.” The defendant’s counsel insists that the incompetency of the juror Hansen was established by the affidavits to the motion for new trial, and that defendant went to trial without any knowledge of Hansen’s double infirmity.

We have already in this opinion stated the manner of organizing a jury in a capital case. The judge who presided at the trial states that this j uror was submitted to the usual examination prescribed by law. If the jury wer.e severally examined,—as, in the absence of showing in the record to the contrary, we must presume was the case, —it does seem to us almost impossible that both the court and counsel engaged *665in the cause should have failed to notice any defect of hearing, and of understanding of the English language on the part of Hansen, if any material defects of the kind really existed. We believe that the explanation of the judge who presided at the trial, made before signing the bill of exceptions, should outweigh the affidavits of the witnesses McNeely and Swift, which are attached to defendant’s motion for new trial, and that the court below did not err in overruling the motion.

The verdict of the jury is abundantly supported by the law and the evidence.

It is submitted on the part of the defendant that the judgment is too severe a punishment for the crime proven. It cannot be said that the jury, after finding the defendant guilty of murder in the second degree, in assessing the punishment exceeded the limits affixed by the statute to the offence. Our Criminal Code provides that “ the punishment of murder in the second degree shall be confinement in the penitentiary for not less than five years.” Pasc. Dig., art. 2271.

The defendant has had a fair trial, and has been ably defended, and legally convicted.

The judgment of the Criminal District Courtis, therefore, affirmed.

Affirmed.