author: HARPER, C. J.

text:
    DEMPSTER MILL MFG. CO. v. HUMPHRIES.
    (No. 631.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 28, 1916.)
    1. Courts &wkey;>185 — Jurisdiction.
    In a suit on a note and to foreclose a chattel mortgage, if an allegation of value is found by the appellate court to be insufficient to fix the jurisdiction of the county court, it would merely require a reversal of the case, and not a dismissal.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. &wkey;185J
    2. Trial <&wkey;329 — Verdict—Responsiveness to Issues.
    In a suit on a note and to foreclose a chattel mortgage on a pumping plant sold to defendant, where plaintiff’s pleadings pray for judgment for the amount of secured note sued on and for foreclosure, and defendant pleads that the plant would not do the pumping agreed upon and prays that the record notes be canceled, that he have judgment for the amount already paid, the amount of a note given as collateral, and for foreclosure of-lien, a verdict and judgment which did not pass upon plaintiff’s cause of action, and giving defendant judgment for only $5 upon his cross-action and that plaintiff be given back his property, constituted reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dee. Dig. &wkey;329.]
    3. Trial <&wkey;313--lNSTRUCTi0NS.
    The court erred in informing the jury, after they had retired to consider their verdict, and after they had been deliberating, in response to a question as to whether or not under the charge the jury could return a verdict giving the plaintiff the engine and pumping plant and the $305 paid by defendant, and giving the defendant the two notes he had executed and the collateral note he had deposited with plaintiff, that, generally, a jury could do whatever it wanted to do.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 730-746; Dec. Dig. &wkey;313.]
    4. Fraud &wkey;>41 — Pleading—Complaint.
    A complaint for deceit must allege the false representations, their materiality, that the defendant was ignorant of their falsity, and that he was actually deceived thereby.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 36, 37; Dec. Dig. &wkey;41J
    Appeal from Reeves County Court; Hon. Ben Randals, Judge.
    Suit by the Dempster Mill Manufacturing Company against E. A. Humphries. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Buck & Fleming, of Pecos, for appellant. Harry MacTier and Ben Palmer, both of Pecos, for appellee.
   HARPER, C. J.

The Dempster Mill Manufacturing 'Company, a corporation, brought this suit upon two promissory notes, for the balance due thereon, and for foreclosure of ■ chattel mortgage lien for the unpaid balance, under substantially the following allegations: That plaintiff sold to defendant a Dempster irrigation pumping plant for the sum of $929.52 to be settled by the payment of the notes sued on, and that same was secured by chattel mortgage lien upon the machinery sold, and prayed judgment for the unpaid balance and for foreclosure of lien. Defendant answered by general demurrer and by special plea that he signed the notes sued on, and the instrument declared upon which plaintiff alleges to be a chattel mortgage, but that plaintiff represented to defendant at the time he signed same that the instrument alleged to be a chattel mortgage was merely a memorandum of the property sold; that he was overreached and by fraudulent representations induced to sign same not knowing that it was a mortgage, and with the understanding that the title to the property did not pass; and that plaintiff should come and get same if it did not successfully pump water from a certain well for irrigation purposes; that it did not work, and therefore the machinery was not purchased; that, at the time of the execution of the two notes sued on, defendant gave to plaintiff a note which he then held against one Harris for the sum of $285 as collateral security; that said Harris was solvent, but that plaintiff did not exercise diligence to collect same until barred by limitation, and therefore plaintiff became liable to defendant for said note, principal and interest in the sum of $427.50; that he paid plaintiff $255 on said notes; that said amounts, aggregating $682.-50, are now due defendant, and for which a lien exists upon the plant in question; and prays for judgment for said sum and foreclosure of lien. Plaintiff, by supplemental petition, denied the allegations in defendant's answer, and pleaded that defendant was es-topped from denying the indebtedness by reason of the fact that he paid $305 on same at various times, and ‘that due diligence had been exercised to collect the $285 note, but was unable to do so, and tendered same back to defendant.

The cause was submitted to a jury under general instructions, and the following verdict and judgment entered:

“On this, the 24th day of January, A. D. 1916, this cause was called for trial, and both parties appeared by their counsel and announced ready for trial, and thereupon came a jury of good and lawful men, to wit, S. M. Prewitt and five others, who were duly impaneled and sworn, and after hearing the pleadings read, and the evidence adduced, and the 'argument of counsel, and after having received the charge of the court, retired to consider of their verdict, and afterwards, on the 25th day of January, 1916, returned into open court the following verdict, which was received by the court, to'wit: ‘State of Texas, County of Reeves. Jan. 25, 1916. We the jury in cause No. 506 in Dempster Mills Mfg. Co. v. E. A. Humphries render the following verdict: Give defendant judgment for five dollars out of the three hundred and five dollars paid to said Dempster Mill Mfg. Co., by E. A. Humphries and the return of the two notes and Harris note held by plaintiff to E. A. Humphries and the return of the engine pumping plant and fixtures to the Dempster Mill Mfg. Co., at Toyah, Texas. S. M. Prewitt, Foreman.’,
“It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Dempster Mill Manufacturing Company, have and recover from the defendant, E. A. Humphries, the pump and all the machinery connected with the same, as described in plaintiff’s petition; and that the defendant, E. A. Humphries, have and recover of and from the plaintiff, Dempster Mill Manufacturing Company, on his cross-action, the sum of $5, and he also recover the note given E. L. Harris, and more fully described in defendant’s cross-action, and the notes described in plaintiff’s petition, as given by the defendant, E. A. Humphries, be canceled and held for naught; and that the plaintiff recover of the defendant its costs in the main suit against the defendant; and that the defendant recover against the plaintiff the costs incurred by reason of the cross-action; and that the plaintiff have a writ of restitution for said pump and all the machinery and property described in its petition; and that each party have execution against the other for the costs recovered by them respectively.”

From which an appeal is perfected.

Preliminary to passing upon the merits of the appeal, appellee urges that the appeal should be dismissed because the appellant failed to show jurisdiction in the trial (county) court by reason of the fact that it nowhere alleges the value of the property upon which lien is sought to be foreclosed.

The only allegation in the petition which inferentially or otherwise alleges the value of the property upon which lien is sought to be foreclosed is that “defendant by an instrument in writing promised to pay the sum of $929.25 for the property.” If this is not a sufficient allegation of value to fix the jurisdiction of the county court, it would merely require a reversal of the case, and not a dismissal. Reeves v. Faris, 186 S. W. 772. So, since1 the cause must be reversed and remanded because of the erroneous verdict and judgment, we make no holding upon the sufficiency of the allegation as to the value of the property to fix the jurisdiction of the trial courts.

The appellant, by its first assignment, urges that the verdict and judgment are without basis in the pleading, evidence, or the charge of the court.

The plaintiff’s pleadings pray for judgment for the amount of the notes sued on and for foreclosure of lien on the property sold. The defendant pleads and prays that by reason of the fact that the plant would not dc the pumping agreed upon, the notes sued upon be canceled, that he have judgment for the amount already paid, and the amount of the Harris note and for foreclosure of lien, and it will be noted that the plaintiff’s cause of action is not passed upon by the verdict nor the judgment, but, on the other hand, the defendant is given judgment for only $5 upon his cross-action, and that plaintiff is given back his property.

It is clear that this is such an erroneous verdict and judgment as requires a reversal for a new trial. Tlie plaintiff was, under the pleadings and evidence, entitled to judgment for the notes sued upon with foreclosure ■ of its lien, or else the defendant was entitled to judgment upon his cross-action' for the amount he had already paid, if not also for the amount of the Harris note transferred to plaintiffs, and that the property be retaken by plaintiff, and - that plaintiff take nothing by his suit, and the verdict rendered and the judgment entered does not affirmatively adjudicate either. Wootan v. Partridge, 39 Tex. Civ. App. 316, 87 S. W. 356; Spiva v. Williams, 20 Tex. 442:

The second assignment is:

“The court erred in informing the jury, after they had retired to consider their verdict, and after they had been deliberating for about two hours, in response to a question personally addressed to the court, after he had been called into the jury room by the jury, as to ‘whether or not under the charge the jury could return a verdict giving the plaintiff the engine and pumping plant and the $305 paid by defendant, and giving the defendant the two notes he had executed and the collateral note he had deposited with plaintiff,’ that, ‘generally, a jury could do whatever it wanted to do,’ because the said remark of the court improperly influenced the jury in arriving at the verdict at which they did arrive, as is more fully shown by plaintiff’s bill of exception No. 11, taken in reference thereto.”

This was error. Wootan v. Partridge, supra.

The third is:

“The court erred in overruling and in not sustaining plaintiff’s fifth special exception to defendant’s answer and cross-action, which special exception was addressed to the third paragraph of said pleading, for the reason that said paragraph pleaded certain false representations as fraud, by way of defense to this action, and did not allege that the defendant relied upon and believed the said false representations to be true, and was induced thereby to make the said written instruments declared to have been obtained by fraud.”

It must be sustained, because a complaint for deceit must allege the false representations, they must be material, that the defendant was ignorant of their falsity, and that he was actually deceived thereby; and the latter has not been complied with by the pleader. Carson v. Houssels, 51 S. W. 290.

For reasons given, the cause must be reversed and remanded, and it is so ordered.
      <©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    AYCOX v. STATE.
    (No. 4274.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from Tarrant County Court; J. E. Mercer, Special Judge. J. J. Aycox was convicted of disturbing religious worship, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In this appeal from a conviction for disturbing religious worship, there is no statement of facts nor bills of exceptions in the record, and nothing that can be reviewed in their absence. The judgment is affirmed.


author: DAVIDSON, J.

text:
    BURAGE v. STATE.
    (No. 4259.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Charlie Burage was convicted of aggravated assault, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault, his punishment being assessed at two years’ confinement in the county jail. The record is sent up without a statement of facts or bill of exceptions. There is nothing mentioned in the motion for a new trial that can be considered in the absence of the evidence. The judgment is affirmed.


text:
    CHAVEZ v. STATE.
    (No. 4239.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Baltazar Chavez was convicted of robbery, and he appeals.
    Affirmed.
    C.. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of robbery, his punishment being assessed at five year’s’ confinement in the penitentiary. The record is before us without a statement of facts' or bill of, exceptions. There being no errors presented that can be revised in the absence of a statement of facts and bills of exception, the judgment will be affirmed.


text:
    DAVIDSON v. STATE.
    (No. 4292.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    Appeal from District Court, Gray-son County; M. H. Garnett, Judge. Bill Davidson was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for burglary. There is no statement of facts, and no bills, and nothing to review. The judgment is affirmed.

HARPER, J., absent.


author: HARPER, J.

text:
    JONES v. STATE.
    (No. 4236.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge. Hugh Jones was convicted, and appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of an aggravated assault, and his punishment ■ assessed at two years’ confinement in the county jail. As the record before us contains no statement of the evidence heard on the trial, and no bill of exceptions to any proceedings had on the trial, no ’question is presented for review. The judgment is affirmed.


text:
    LAVOW v. STATE.
    (No. 4275.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from Tarrant County Court; Jesse M.' Brown,, Judge. Sam Lavow was convicted of aggravated assault, and he appeals’.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In thjs appeal from a conviction for aggravated assault, there is' no statement of facts nor' bills of exceptions in the record, and nothing that can be reviewed in their absence. The judgment is affirmed.


text:
    Ex parte MARSHALL.
    (No. 4277.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Emmett Marshall was legally charged with murder, and on arrest sued out a writ of habeas corpus. Prom a judgment remanding him to the custody of the sheriff, denying bail,- he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was legally charged with the murder of John McGinness. When arrested, he sued out a writ of habeas corpus before Hon. W. L. Crawford, Jr., judge of the criminal district court of Dallas county. Upon the hearing, Judge Crawford remanded relator to the custody of the sheriff, denying bail. Prom an inspection of the record before us- we cannot say he erred. The judgment is affirmed.


text:
    MOOTS v. STATE.
    (No. 4263.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from Grayson County Court; Dayton B. Steed, Judge. C. S. Moots was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of using abusive language; his punishment being assessed at a fine of $5. The record is before us without a statement of facts or bill of exceptions. There is nothing presented that can be considered in the absence of the evidence. The judgment is affirmed.


text:
    PICKETT v. STATE.
    (No. 4293.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    Appeal from District Court, Grayson County ; M. H. Garnett,- Judge. - Homer Pickett was convicted of burglary, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for burglary, with the lowest penalty assessed, and without a statement of facts or bill of exceptions. There is nothing to review. The judgment is affirmed.

HARPER, J., absent.


text:
    Ex parte SMITH.
    (No. 4197.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    Original application by Alfred Smith for a writ of habeas corpus.
    Relator ordered released on bail.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

In this case an application for writ of habeas corpus was granted on August 4th, and the cause set for hearing on August 14th; applicant being granted bail in the sum of $10,000 pending the hearing. On August 14th, by request of the state and relator, the case was postponed until October 4th, being in term time. On that day the cause was submitted, no additional testimony being heard. Prom an inspection of the record, and the evidence on file, we are of the opinion that bail sho'uld be granted. It is therefore ordered that bail be granted relator in the sum heretofore fixed, to wit, $10,000, and upon his giving bond in that sum, conditioned as required by law, he will be released by the sheriff. Bail granted.


text:
    THOMAS v. STATE.
    (No. 4258.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)

      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Will Thomas was convicted of aggravated assault, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In this appeal from a conviction for aggravated assault, there is no statement of facts nor bills of exceptions in the record, and nothing that can be reviewed in their absence. The judgment is affirmed.


text:
    WHITE v. STATE.
    (No. 4265.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from District Court, Ellis County; .F. L. Hawkins, Judge. G. W. White was convicted of pursuing the occupation of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of pursuing the occupation of selling intoxicating liquor in prohibition territory. The only question presented is that the evidence is insufficient to sustain the verdict This contention cannot be sustained, and the judgment is affirmed.


text:
    WYCKOFF v. STATE.
    (No. 4207.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge. Paul Wyckoff was convicted of manslaughter, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at three years’ confinement in the penitentiary. The record is before us without-a statement of facts or bills of exception. There is nothing presented that can be considered in the absence of the evidence, and the judgment, therefore, will be affirmed.


author: MO'URSUND, J.

text:
    FREEMAN v. WILSON.
    (No. 4856.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1916.
    Rehearing denied Nov. 29, 1916.)
    Appeal from District Court, Bexar County; Edward Dwyer, Judge. Action by C. W. Wilson against T. J. Freeman, receiver. From an adverse judgment, defendant appealed.
    Affirmed on condition.
    John M. King, of Houston, and Hicks & Hicks, F. C. Davis, F. H. Booth and J. L. Camp, Jr., all of San Antonio, for appellant. J. D. Childs, of San Antonio, W. C. Campbell, of Palestine, and Jas. W. Brown, of San Antonio, for appellee.
   MO'URSUND, J.

The judgment of the trial court in this cause was reversed by this court, and the cause remanded for a new trial. For opinion, see 149 S. W. 413. Appellee’s application to the Supreme Court for writ of error was granted, and the judgment entered by this court was reversed and the cause remanded to this court for further proceedings in accordance with the opinion of the Supreme Court. For opinion, see Wilson v. Freeman, 185 S. W. 993. It was held that this court should indicate the amount of excess contained in the judgment and give appellee an opportunity to file a remittitur. Complying with the judgment of the Supreme Court, we have arrived at the conclusion that a remittitur of $8,000 should be required of appellee. The judgment of the court below will be reversed, and the cause remanded for a new trial, unless the appellee within 10 days from date hereof shall remit of the amount of the judgment the sum of $8,000, in which event the judgment of said court will be reformed, and affirmed for the sum of $12,386.05.


author: RICE, J.

text:
    RUMLEY PRODUCTS CO. v. MOSS.
    (No. 5680.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1916.)
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge. Suit by T. H. Moss against the Rumley Products Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, Eidson & Eidson, of Hamilton, and Sadler & Cobb, of Gatesville, for appellant. Langford & Chesley, of Hamilton, for appellee.
   RICE, J.

Appellee brought this suit against appellant to recover damages for the value of a crop of peas, alleged to have been sustained on account of appellant’s shipping him a thresher without the necessary attachments thereto, purchased by him from appellant for threshing and preparing the peas for market; alleging that the object of said purchase was made known at the time thereof to appellant, claiming that it fraudulently represented that the thresher could be successfully operated for threshing peas, which representations proved to be untrue, whereby he sustained the loss alleged. The case was before us on a former appeal (see 175 S. W. 1084 et seq.), to which reference is made for a full statement of the pleadings and evidence, and was reversed on the .sole ground that appellee failed to show the proper measure of damages, in that there was no pleading and proof as to the cost of preparing and transporting the crop to market; all other contentions being resolved in favor of ap-pellee. As per agreement of counsel on the second trial, the case was submitted on the same pleadings and evidence as formerly, except as to the measure of damages, upon which issue the pleading was amended, and additional proof offered to supply the deficiency in this respect. A trial before the court without a jury resulted in a judgment in favor of appel-lee, from which this appeal is taken. It was further agreed that the case should be submitted on the old briefs, so that, for all purposes, this record presents the identical questions adjudicated by this court on the former appeal, in which we held against appellant on all the issues there raised, except the one of the measure of damages, as above indicated, which error we hold has been cured by the proof on this appeal. We therefore refer to and adopt the original opinion of the court in that case as the opinion in this, and affirm the judgment of the trial court, but decline to award 10 per cent, damages for delay, as requested by appellee. The judgment of the court below is in all things affirmed. Affirmed.


text:
    CARSON v. STATE.
    (No. 4221.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Ceiminal Law <&wkey;1090’(7) — Appeai>-Ne-cessitt op Bill op Exceptions — Repusal op Continuance.
    Where no bill of exceptions is reserved to refusal of continuance, it is not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. &wkey;1090(7)J
    2. Homicide <&wkey;174(7) — Evidence—Preparations por Flight.
    In murder trial, testimony that the witness, searching for evidence of cause of the death at accused’s home, found a trunk packed with clothes of deceased and another, accused of part in the crime, was admissible as evidence of readiness for flight.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 365; Dec. Dig. &wkey;174(7).]
    3. Criminal Law <&wkey;721%(2) — Trial—Comment op Prosecutor.
    In murder trial, where accused contended that another who had also been indicted for the crime, and was a witness against him, was insane, and therefore an incompetent witness, comment by the state on the fact that accused had called several doctors and yet had questioned none of them on such issue, was legitimate, it appearing accused had secured two doctors to visit such witness and called both of them as witnesses, but had questioned neither as to the witness’ mental condition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. &wkey;72iya (2).]
    4. Homicide <&wkey;173 — Evidence—Administering Poison.
    In murder trial, evidence that accused had given the victim “rough on rats,” pretending it was medicine, was admissible; it appearing that “rough on rats” contains arsenic, and arsenic in quantities was found in the victim’s stomach, after death.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dee. Dig. <S^=173.]
    ’ Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Jim Carson was convicted of murder, and appeals.
    Affirmed.
    J. W. Gross and A. P. Bolding, both of Bonham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 99 years confinement in the state penitentiary.

Appellant and Henrietta Sutton were indicted .separately, charged with causing the death of Era Sutton (a daughter of Henrietta) by administering poison. Appellant filed a plea asking that his codefendant be first tried, as he believed the state had not sufficient evidence to secure her conviction; and that her testimony would be material to his defense.

The state filed a contest of this plea, alleging that Henrietta Sutton would testify in behalf of the state by agreement, and that the testimony she would give would be material to the state’s cause, and her testimony would not be material to the defense. Henrietta Sutton filed an affidavit stating she desired that appellant be first tried, and that she would testify in the case on behalf of the state.

When two defendants cannot agree on the order of trial, and each expresses a desire that the other be first tried, it then becomes the duty of the court to direct which shall first be tried, and as Henrietta Sutton and appellant both filed pleas asking that the other be tried first, there was no error in the court directing that appellant be first tried. Article 727, C. O. P. 1911; Chumley v. State, 32 Tex. Cr. R. 255, 26 S. W. 406; Parker v. State, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967.

Appellant then filed a motion asking that the case be continued on account of the absence of Dr. 0. A. Gray, and says he expected to prove by said doctor that his codefendant, Henrietta Sutton, is in an insane condition of mind, and therefore an incompetent witness. No sufficient diligence is shown, and no bill of exceptions was reserved to the action of the court in overruling his motion for a continuance; consequently the matter is not presented in a way to authorize a review of that question. Cock-er v. State, 31 Tex. 498, and cases cited in note 5, p. 529, Vernon’s Criminal Procedure. However, the state, out of the abundance of precaution, when the motion for a new trial was presented, called Dr. Gray as a witness, and he testified that he had never seen Henrietta Sutton prior to the trial, and since the trial, at the instance of the state, he had called on her, and said he would not testify as desired by appellant.

In bills of exception Nos. 1 and 2, it is contended by appellant that the court erred in permitting W. L. Norton and J. L. Campbell to testify, among other things, that they opened a trunk and found the trunk packed with appellant’s clothing, and tlie clothing of Henrietta Sutton. These two witnesses were called to the Sutton home on account of the sudden and mysterious death of Era Sutton and her sister Tishie. They were searching for some evidence as to the cause of death, and it was permissible to prove that such search was made, and if in making the search it was discovered that appellant and Henrietta had packed their clothing, ready for flight, there was no error in permitting that fact to be shown.

Appellant was contending on the trial that Henrietta Sutton was of unsound mind, and under such state of facts there was no error in the state commenting on the fact that appellant had called several doctors as witnesses, and yet asked neither of them any question on that issue. In fact the record before us discloses that appellant’s counsel had secured two doctors to visit Henrietta Sutton; that he called both of them as witnesses, but asked neither of them any question about the condition of her mentally. The argument complained of was proper and legitimate.

The question propounded by the state to Henrietta Sutton was legitimate, and the answer admissible, when she testified that appellant had given the girl Era a dose of “rough on rats,” pretending it was medicine. The record discloses that “rough on rats” contains arsenic, and arsenic in quantities was found in the girl’s stomach after hex-death.

The judgment is affirmed.
      <SfcoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LANG v. STATE.
    (No. 4193.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    Criminal Law <&wkey;1131(4) — Appeal—Bond or Recognizance — Dismissal.
    Under Code Cr. Proe. arts. 902, 904, providing for a prisoner’s release pending appeal upon the giving of a recognizance in term time, or an appeal bond during vacation, the Court of Criminal Appeals acquires no jurisdiction of an appeal where appellant gives an appeal bond dux-ing term time.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2974, 2976, 2977; Dec. Dig. &wkey;1131(4).]
    Appeal from District Court, Montgomery County; J. Llewellyn,- Judge.
    Alec Lang was convicted of a felony, and appeals.
    Appeal dismissed.
    J. T. Rucks, of Conroe, and Dean, Humphrey & Powell, of Huntsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a felony conviction. Appellant gave notice of appeal, and while court was in session entered into an appeal bond, approved by the sheriff and the trial judge.' Motion is made by the Assistant Attorney General to dismiss the appeal because the jurisdiction of this court cannot be thus attached; that, in order to attach the jurisdiction of this court under such circumstances, a recognizance must be entered into during term time, or, if this be not done during the term, he can obtain his release, though the appeal is pending before the Court of Criminal Appeals, by entering into an appeal bond as prescribed by the statute.

Article 902 of the Code of Criminal Procedure provides that where a party desires to appeal and takes the necessary steps to accomplish that, and desires not to remain in jail pending the appeal, he may enter into a recognizance pending such appeal, provided it is in term time and he was in custody at the time. Article 904 provides that, if this be not done in term time, he may secure his release from custody by entering into an appeal bond, approved by the sheriff and the trial judge, in vacation. These statutes have been construed by this court. See the recent case of Bloss v. State, 187 S. W. 487. It seems to be the purpose and the wording in fact of our statutes that recognizances can only be entered into during term time, and that, in order to consummate an appeal to this court, the trial court being in session, the party cannot give an appeal bond; he must enter into a recognizance. Whether this be a hardship or not, it seems to be the plain statutory enactment. Under no decision that we have been able to find can a party, in a felony, after term time, enter into a recognizance. In that character of case the Legislature provides that he may give an appeal bond. But in cases of this character the jurisdiction of this court cannot attach without statutory obligation was entered into as required by law. It may be well enough for the Legislature to change this rule; but, not having done so, this court cannot do so.

Under the record as made, the jurisdiction of this court does not attach, and the appeal must therefore be dismissed, and it is, accordingly, so ordered.
      c&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. ■ PRENDERGAST, P. J. HARPER, J. PKEiS[DERGAST, P. J.

text:
    GILLESPIE v. STATE.
    (No. 4217.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.
    On Motion for Rehearing, Dec. 20, 1916.)
    1. Criminal Law <&wkey;404(4) — Evidence — Bloody Clothing of Deceased.
    In a murder trial, unless there is an issue as to the position of the parties, or character of the wound, on which examination of the bloody clothing of the victim might be enlightening, such clothing is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 891, 893, 1457; Dec. Dig. &wkey;404(4).]
    2. Criminal Law <&wkey;364(6) — Evidence—Res Gestas.
    In murder trial accused’s version of the killing given in conversation not over 12 or 20 minutes thereafter, after going 700 or 800 yards from the scene, was admissible as part of the res gestae, although self-serving.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 817; Dec. Dig. &wkey; 364(6).]
    Appeal from District Court, Clay County; Wm. N. Bonner, Judge.
    Cauley Gillespie was convicted of murder, and appeals.
    Reversed and remandqd.
    R. E. Taylor, and Wantland & Parrish, all of Henrietta, for appellant. O. W. Gillespie, of Ft. Worth, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at nine years’ confinement in the penitentiary.

Briefly, the evidence discloses that appellant was engaged to the sister-in-law of deceased, Murphy. Her name was Cynthia Sims. She subsequently married appellant. She, her mother, and a younger sister were at the time of the homicide either visiting or living at deceased Murphy’s. Shortly after the killing appellant married Cynthia Sims, and had been married to her about two years at the time of this trial. There was some objection by deceased and some members of his family to the attention appellant was paying to Miss Sims. On the night before the homicide the following day appellant called for Miss Sims and took her to a nearby neighbor’s. After they left the parlor some “rubber goods,” as the witnesses called it, were found in the parlor folded in tissue paper. This enraged Murphy, and he stated that appellant could never enter his house again except over his dead body, and that he intended to talk with him or hold him to account for the matter. The next day Miss Sims was at church, as was appellant, and she informed him of the fact that Murphy would not permit him again to come to his house. She suggested to him that he had better not come; that Murphy had stated he could not enter his house any more except over his (Murphy’s) dead body. In the evening after this conversation between Miss Sims and appellant appellant drove up in front of Murphy’s residence and holloed “Hello.” Murphy went out to where he was sitting in a buggy. What occurred there is detailed by the witnesses, except a conversation. None of them seemed to have heard the conversation, but appellant took the witness stand and testified as to that part of the transaction. When Murphy went from the residence to the gate, after a brief conversation, the witnesses practically agree that he either got in the buggy or partially in the buggy where appellant was. There is some divergence as to the relative position of the parties, one or two perhaps of the witnesses testifying that one of Murphy’s feet was on the ground and the other on the step of the buggy. The great preponderance of the evidence shows that Murphy reached for appellant’s throat, or caught him about the neck. The first attempt was a failure, but the second time he caught him somewhere about the neck or throat. The preponderance of the evidence shows deceased was in the buggy and had hold of appellant about the throat somewhere; some of them saying he had him pushed back with his head over the back of the buggy. The testimony indicates that after he got in the buggy he left it by jumping over the left hind wheel, and ran in the house, where he died shortly afterward. As appellant started away he said to some of those who were present on the gallery or about the front of the house, “Tell Jess to get a gun and come and kill him; ” that he did not care. Appellant says that when Murphy came to the buggy he reminded him of the fact that “rubber goods” were found in the house and was angry about it. He replied there was nothing wrong about it; that he had never mentioned anything of that sort to the girl in his life; that she was a pure girl; that he had not bought the rubber goods for that purpose or for the purpose of contaminating the girl; and that she was a lady in every sense of the word. Deceased called him a liar, and jumped in the buggy and caught him by the throat and pushed his head back, threatening to kill him. He jerked his knife out and cut him. One of the wounds was in the hip and the other in the breast, which seems to have penetrated the heart. It seems appellant did not know he had inflicted such serious wounds on deceased until he heard later during the evening that Murphy had died. Appellant testified to a lot of matters, among other things, with reference to deceased getting him by the throat and collar and threatening to kill him, and that he acted in self-defense on a sudden impulse of the moment, and that he had no idea when he went there of having any difficulty .with deceased; that his purpose was to go and have an explanation and conversation with him in order to adjust the matters, but the conduct of deceased prevented this; he would not hear him, and brought on the difficulty, which resulted fatally; that he had no purpose or intent of killing him, and did not know he had done so for some hours afterward. The state’s theory was that appellant went to the home of deceased for the purpose of doing what he did, and that his story was fabricated and false, and induced the jury evidently to agree with that theory. This is a sufficient statement of the case, in a general way, to bring in review the questions suggested for revision.

During the trial, over protest of appellant, as shown by two bills of exception, the bloody clothing of deceased was permitted to go before and to be examined by the jury. Among other objections, it was stated there was no purpose for which the bloody clothing could be used, there was no question as to the location and character of the wounds, and that the defendant stated that there would be no issue on the question as to the location and character of the wounds. If there was any issue on this question at all, it was on the theory that the( wound in the breast was a direct stab, and not a “raking” cut. The testimony of the attending physician shows that the wound was, in a general way, a stab with a little cut on the flesh before the knife entered. We are of opinion that under this state of the record the court was in error in permitting the clothing of deceased to go to the jury. This matter has been the subject oí a great many decisions. There seems to be! a general rule to the effect that, unless the bloody clothing would serve to illustrate) some purpose with reference to the position of the parties and character of the wound, which was an issue in the case affirmed on one side and denied on the other, the admission of the bloody clothing would be error. The cases are collated in Mr. Branch’s Annotated Penal Code on page 1032. See, also, Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527; Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 823; Williams v. State, 61 Tex. Cr. R. 356, 136 S. W. 775; Christian v. State, 46 Tex. Cr. R. 47, 79 S. W. 563; Lucas v. State, 50 Tex. Cr. R. 219, 95 S. W. 1055; Lacoume v. State, 65 Tex. Cr. R. 146, 143 S. W. 626; Corley v. State, 69 Tex. Cr. R. 626, 155 S. W. 227. There was no issue as to the condition or situation of the wounds and their effect. All this .was conceded by appellant, proved by the state, and no issue was formed. The theory evidently of the state must have been that defendant’s story as to .the difficulty testified by himself was a fabrication and invention, and therefore this assisted the state in showing that he was prepared for it, and that it was not the striking of a man in self-defense, but the deliberate purpose of a man stabbing. None of the witnesses question the fact as to the relation of the parties in any material way; that appellant .was in the buggy and deceased attached him in the buggy, and that appellant was never out of the buggy at any time; that he sat in the buggy during the whole difficulty. The court was in error.

Another bill shows that appellant offered to prove by the witness Williams that he had a conversation .with appellant shortly after the difficulty at the house of witness; that the distance between the place of the difficulty and the conversation was’ something like 700 or 800 yards; that appellant in leaving Murphy’s passed directly by Williams’ residence, and there the conversation occurred. The court permitted the' witness to testify, as he states in his qualification, that defendant was crying and also as to the appearance and demeanor, but not the- declaration, of the defendant. The conversation offered was admitted by the prosecution, as shown by the bill, to have been somewhere not beyond 12. to 20 minutes after the trouble. The appellant’s contention was that it was not so. long. Williams .would have testified, had he been permitted to do so, as follows:

“Yes; I saw the defendant and talked to him when he arrived at my house on his way from Jess Murphy’s. He seemed to me to be very sad, and was crying when he was talking to me, and he said, ‘Jim, I went up there to talk to Jess and reason with him and get my girl,’ and he said, T called him out and he came out and began to talk,’ and he said, ‘Oauley, I have some property of yours here,’ and he took out his pocketbook, and I said, ‘Yes, Jess; that is mine, I don’t deny it,’ and then Murphy accused me and the girl of doing something we ought not to have done. And Oauley said that he told Jess that thát was something of which they were not guilty, and that that was as straight a girl as ever lived so far as he knew, and Oauley said that Jess then called him a liar and got into the buggy and got him by the throat and- said; T will kill you,’ and then Oauley said, T would not have done it for nothing in the world, if I had not had to.’ And when he made this statement the tears were rolling- down his. cheeks. I asked Oauley how he struck him, and he said, ‘We just had a little trouble,’ and he kept repeating it over, ‘We just had a little trouble.’ He seemed to be very sad and disturbed at the time he told .me this.”

This was- evidently in a very few minutes after it occurred. Appellant drove in his buggy from the place where it occurred to Williams’ house, and this, conversation occurred between them. The state’s objection seems to be based upon the idea that it wa-s a self-serving declaration. On the witness stand appellant testified, in substance, if not exactly, to the same account of the trouble that he told Williams; more in detail, however. Another theory of the state evidently was, or must have been, it was not res gestaj, and for the two reasons was not res gestas but self-serving, and therefore inadmissible. We canot agree with the state in either contention. We are of opinion it was res gestas. The authorities are numerous and so well known it would hardly seem necessary at this late day to collate them. However, a few of them may be collated. Craig v. State, 30 Tex. App. 619, 18 S. W. 297. The Craig Case has been followed in Clark v. State, 56 Tex. Cr. R. 297, 120 S. W. 179; Wakefield v. State, 50 Tex. Cr. R. 127, 94 S. W. 1046; Craven v. State, 49 Tex. Cr. R. 82, 90 S. W. 311, 122 Am. St. Rep. 799; Thomas v. State, 47 Tex. Cr. R. 535, 84 S. W. 823, 122. Am. St. Rep. 712; Gray v. State, 47 Tex. Cr. R. 378, 83 S. W. 705; Freeman v. State, 40 Tex. Cr. R. 554, 46 S. W. 641, 51 S. W. 230; Castillo v. State, 31 Tex. Cr. R. 152, 19 S. W. 892, 37 Am. St. Rep. 794; McKinney v. State, 40 Tex. Cr. R. 374, 50 S. W. 708; Ingram v. State, 43 S. W. 519. These are cases where the declaration of the accused was in evidence, but rejected.. The rule of re's gestae is not limited to the state’s, side of a case.. That rule applies wherever there is a call for it, and one side of the case is as much entitled to the benefit of the rule as-the other. The criterion is that it is res gestae. Res gestae statements may some time operate as self-serving, but if they are res gestae they are still admissible.. There is another reason in this particular case why this testimony should have been- admitted. The state . attacked the defendant’s testimony vigorously on the ground that it was fabricated and false, and that he went for the purpose of doing what he did do, to kill Murphy. His testimony was a case of self-defense. Wherever the defendant’s testimony is attacked as being fabricated, he may prove in rebuttal prior statements by him corroborating his ’ testimony. Williams’ testimony was admissible from that standpoint. See Messer v. State, 43 Tex. Cr. R. 109, 63 S. W. 643. It would be useless to follow this line 'of. discussion further. Williams’ testimony, under the circumstances of this case, was admissible.

There is another serious question. The court charged the jury on the law of self-defense generally; and then gave this charge:

“Tou are charged'that the fact that one with a grievance seeks an interview with a man who he believes has wronged him,, and in such interview kills or inflicts serious bodily injury upon such person, the act of seeking such interview is not necessarily a provocation nor does it place such party in the wrong. Tou are therefore charged that the defendant had the right to peaceably go to the house of the deceased for the purpose of having an interview with the deceased, and for the purpose of explaining any differences which may have existed between them at the time. And the fact of his seeking such interview for the purpose of making explanations does not place the defendant in the wrong, and in this connection you are charged that the defendant had the right to make preparation to arm himself for the purposes of defending himself if the deceased assaulted him at such time.”

This is the entire charge of the court with reference to this phase of the case. To meet this appellant ashed this charge:

“In this case you are instructed that the defendant, Oauley Gillespie, had the right to go to the home of the deceased,' either for the purpose of interviewing the deceased concerning the feeling of the deceased toward him or to fulfill the engagement he had with Miss Cynthia Sims, and in this connection you are instructed that if, after the defendant arrived at the home of the deceased, and while he was engaged in conversation with the deceased, the deceased went out to the buggy where the defendant was, and climbed into the buggy of the defendant and assaulted him, or assaulted him immediately before climbing into the buggy, and that such assault was an unlawful one, and that at the time of such assault the defendant believed that he was in danger of death or serious bodily harm at the hands of the deceased, and that at said time had a reasonable apprehension for so believing, and that at said time the defendant cut or stabbed the deceased and killed him, then you will acquit the defendant, and say by your verdict not guilty, but in this connection you are instructed that you must view the entire transaction surrounding this homicide and the defendant’s presence at the home of the deceased from the standpoint of the defendant.”

This charge was refused; it should have been given. This phase of the law was gone over thoroughly in Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17, in a very strong and well-considered opinion by this court written by Judge Simkins. So far as the writer is aware, that opinion has never been attacked or criticized. That appellant had the. right to go to Murphy’s and talk with him abput the matter and explain to him ought not to be questioned, whether the Shannon Case had ever been written. That he had the right to do so would be but a simple rule of justice and fairness. A man has the right to talk to his adversary, or another party who has charged him with wrongdoing, and explain to him that there was no wrong perpetrated. This ought not to be modified nor minimized when it brings in review a charge of illicit intercourse or fornication with a girl and want of chastity on her part. The deceased had coupled the two together as being guilty of acts of unchastity. The boy was engaged to the girl. His reputation and character 'and that.of the girl, both were at issue. He had a right to talk with deceased, and, in the judgment of the writer, would have been derelict had he not done so. She was soon to become his wife, and in fact within a short time after the homicide did become his wife. He went to deceased to protest against the accusation brought against the woman soon to be his wife, and she deceased’s sister-in-law, and the fact that he had accused him of taking advantage of the freedom of deceased’s home and company of his sister-in-law to debauch and ruin her. This would at least be calculated to disturb the equanimity of the mind of any man who felt he had been wronged in such a matter, and especially under a charge of debauching the1 girl. His theory of it was, as testified by him, he went to explain to Murphy that there was nothing wrong with the girl, that he had never said anything out of the way to her in his life, and that the “rubber goods” he spoke of were not bought for any such purpose, and that he had had them- for some time, and had them in the band of his hat, from where- they had fallen without his knowledge; that he bought them in Henrietta, Clay county, when en route to Wichita Palls some time prior to the happening of this matter in the house of deceased.

There is another phase that has not been mentioned that comes into this part of the case. This girl in telling appellant of the condition of things, at Murphy’s residence and the church -about appellant going back to the house, it seems, reached an agreement with-him that she was to go to another lis-ter’s that evening and he was to call and take- her, at least, if not that evening, shortly, and the, evidence is further that she did go later. The-court’s charge, in-a general way-, covered a part -of this phase of t|ie case, but the court nowhere in the charge informed the jury as to what would be the defendant’s attitude in the case if the killing occurred ■under those circumstances when deceased made the assault. He did tell the jury defendant had the right to arm himself and go peaceably, which was rather a stretch of the law with reference to the word “peaceably,” but that, if he went under those circumstances, it would not be a provocation on the part of appellant to bring on the difficulty. Provocation is a limitation of the right of self-defense. . If the jury believed he went there, as he contended, under such circumstances, he would be entitled to an acquittal. Appellant’s special charge applied more nearly the law of the case to the facts shown, at least to defendant’s side of it.

There is also a bill of exceptions presented by defendant to the argument of one of state’s counsel. The language used is thus recited in the bill:

“Gentlemen of the jury, the rivers of blood in Texas running through Texas like the Brazos river and had started in its origin or fountain head like the Brazos river, being red streams of blood coming from the homes where murder had been committed, which had developed into great rivers of blood. And these are the clothes that were worn by the deceased, Jess Murphy, at the time of the fatal stabbing, and shows at the time of the fatal stabbing that the life blood of Jess Murphy was taken while he was in the defense of his home and the girl under his protection, and that the clothing worn by the deceased at the time he was stabbed by defendant showed that the stabbing by the defendant was deliberate, was calculated, and was made directly at the heart of the deceased, and that Jess Murphy’s blood was part of the blood that helped to make the rivers of blood in Texas.”

This was objected to, and appellant requested a special charge, which was refused by the court. This charge requested that the jury be instructed they should not consider this argument. Objection was also made to the argument at the time it occurred. Such sanguinary speeches and statements like those contained in the bill of exceptions should not be indulged. This defendant was not being tried for originating rivers of blood similar to the flow of the waters of the Brazos river through Texas, but he was tried, or supposed to be tried, or ought to have been tried upon the facts developed before the jury.' There was no evidence in the case that there were rivers of blood running through Texas like the Brazos river. Upon another trial the prosecuting officers will refrain from comments of this character and argue the case on the facts and the law as given in charge by the court. One of the evils or supposed evils to be cured by the late statute requiring the charges to be read to the jury before argument began was to avoid such speeches and arguments. That statute was intended to confine the arguments upon both sides to the facts in evidence and the law of the case as given by the charge of the court. If the court is wrong in his charge, that matter can be corrected by special charges, and, if not given, proper exceptions can be reserved, and the case can come before this court for review, if the trial court refuses the motion for a new trial.

There is another question not pointedly raised perhaps, but indirectly, at least it is in the case, with reference to the meeting of the parties at the time of the difficulty at the buggy. The evidence discloses in part that appellant was only armed with a pocketknife, and that he got the pocketknife out after the difficulty began. There is no conflict in the testimony that appellant only had’ a pocketknife, and there is little conflict as to when he got the knife out of his pocket, yet no witness swears to the deadly character of the knife, and the only evidence that it could be of a deadly nature was the fact of the infliction of the wound which caused death. The owner of the knife, who loaned it to appellant to fix his “tugs” some time prior to this difficulty, testified the blade was about two inches or such matter in length, and that he loaned this knife to defendant, as before stated, to fix a “tug” which had gotten loose some way in driving the buggy. Upon another trial the court should instruct the jury with reference to article 1147 of Branch’s Ann. Penal Code and following articles, which are article 717 and subsequent articles in the old Code. Where the instrument is not itself deadly per se, or calculated to inflict death, a party may be guilty of a less phase of assault. The facts of this case called for a charge under that statute, and should be given upon another trial.

The judgment is reversed, and the cause remanded.

HARPER, J., absent.

■ PRENDERGAST, P. J.

I concur in the reversal because of the admission of the bloody clothes, under the circumstances stated by Judge DAVIDSON.

On Motion for Rehearing.

PER CURIAM. Rehearing denied.

HARPER, J.

I was not present when the original opinion was handed down, and, as my Brethren are unable to agree in the disposition of the motion for a rehearing, I have taken the record and studied it carefully and thoughtfully.

I agree that the clothing was inadmissible. When the physician described the location, nature, and character of the wound, no question was raised by appellant that he correctly presented the matter. Appellant introduced no testimony to vary ' the state’s testimony on this issue, and the testimony of the state was clear and unequivocal. Therefore the clothing was not necessary to show the nature or character of the wound, nor the relative position of the parties at the time the fatal wound was inflicted. I therefore agree with Judge DAVIDSON in holding that the bloody clothing was inadmissible.

I also agree with Judge DAVIDSON in holding that the conversation had with the witness Williams was admissible under the res gesta; rule that has long been in force in this state.

On the other questions discussed by Judge DAVIDSON, I do not agree with him. The court refused the bills in regard to argument of counsel; therefore these matters are not properly verified and would .present no error.

As the charge on self-defense was full and fair, and no limitation placed thereon in any respect, there was no error in refusing the special charge requested. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harris v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141.

On account of the matters first herein referred to, I join in the order overruling the motion for rehearing.

PKEiS[DERGAST, P. J.

(dissenting). I have studied this record, and am now convinced the clothing was admissible, and that appellant’s statement to Williams was self-serving, and not res gestee, and not admissible on any ground.

The judgment should be affirmed, not reversed.


text:
    LUSPORT v. STATE.
    (No. 4252.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Larceny <&wkey;49 — Evidence—Admissibility.
    In a trial for horse theft, whore a number of witnesses identified accused as one of the men in a wagon described, the fact that four other witnesses were unable to identify accused as one of the men in the wagon would not render their testimony inadmissible when they identify the wagon as the same in which the other witnesses say accused and others were traveling at the same times, places, and under the same circumstances.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 140; Dec. Dig. &wkey;>49.]
    2. Criminal Law <&wkey;372(5) — Evidence—Admissibility — Similar Transactions.
    In a trial for horse theft, where .the defense was purchase of the animals stolen, evidence of a similar transaction a short time prior would be admissible on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <i&wkey;372. (5).]
    3. Criminal Law <&wkey;792(l) — Trial—Instructions — Law of Principals.
    In a trial for horse theft, where the state’s evidence was that defendant and others went to a point near where the stock were pastured on the night they were stolen, that they returned that night leading four head of stock of the character and kind lost, and that defendant and two.others were in possession of two mares when recovered, but no one saw who took the stock out of the pasture, or could say who was leading the stock on the return trip, and de-, fendant offered no explanation relying on an alibi, and purchase of the stock on the morning of his arrest, it was proper to charge the law of principals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. <&wkey; 792(1).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Lusport, alias Frank Strong, alias Frank Laporte, was convicted of theft of a horse, and he appeals.
    Affirmed.
    W. W. Nelms and M. H. Hughes, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a horse, and his punishment assessed at two years’ confinement in the state penitentiary.

On the night of March 16, 1916, J. L. Dwight, living northwest of Grapevine, placed two horses and two mules in his bermuda pasture; the next morning all four head of stock were missing. He discovered where the staples had been pulled, the wire pressed down, and the animals taken from the pasture. Two days after the animals were missed they were recovered, the two mules being in the city pound at Dallas, the mares being found in possession of some Italians in Dallas — appellant’s connection therewith being hereafter recited.

Jim Autry, who lives on the road from Dallas to Grapevine, says that on Thursday evening, March 16th, he saw appellant and some three other Italians driving along the road in a little yellow-wheeled vehicle, going in the direction of Grapevine; that when he saw them going out they had no other stock than the mule hitched to the wagon; that about 2 o’clock that night he saw them again pass his house, going in the direction of Dallas, and at this time they were leading four head of stock, two horses and two mules. He identifies appellant as being one of the men in the wagon both going and coming back. He says the stock were of the same color and description as that lost by Mr. Dwight.

Many other witnesses were called, a number of whom identified appellant as one of the party, and all identified the wagon, tracing it to a point near Mr. Dwight’s residence and back to Dallas.

In four bills of exception it is shown appellant objected to the testimony of B. W. Scruggs, J. F. Deering, Mrs. Mary Autry, and A. Kenner, because in their testimony they say they did not know appellant and were unable to identify him as one of the men in the wagon with yellow wheels to which a mule was hitched. As Mr. Autry, Elbert Kelly, Jake Page, Melton Cates, John W. Hodges, E. T. Jones, and others do identify appellant as one of the men in the little yellow wagon or hack with green bed, the fact the four witnesses, to whose testimony the objection was urged, were unable to identify appellant as one of the men in the wagon would not render their testimony inadmissible, when they do identify the wagon as the same wagon that Mr. Autry and the others named say appellant and others were traveling, both in going to near Mr. Dwight’s, with no stock except the animal hitched to the wagon, and coming back that night leading four head of stock — two mules and two horses.

F. F. Tillery and Ed Slaven went in search of Mr. Dwight’s stock, and on the morning of the 18th found the two mares. Mr. Slaven saw appellant place a bridle on one of the mares, and he and two others brought out the mare and hitched her to the little yellow wagon, and drove her down to a store where the other mare was found. They telephoned for an officer, and Officer Horn responded. He says when Tillery said, “Yonder they are,” all three men in the wagon jumped out and attempted to escape, two of them going through the bach gate, and the other one through the store. That appellant was one of the men found in possession of the mares, and one of the men who attempted to escape at the time of the discovery of the stock and the arrest.'

Appellant testified in the case, and admitted that he was in possession of the stock, or just about to take possession, when arrested. He says he had purchased the wagon and two horses from Mar relio, paying $16 for the wagon, $40 for one horse, and $75 for the other. He denies going out on the Grapevine road on March 16th, and introduces evidence tending to prove an alibi. He said he had been engaged in the mercantile business, and also buying and selling a few head of stock. The jury evidently did not believe the testimony as to the alibi in the face of the numerous witnesses who testified to seeing appellant on the Grapevine road on the evening of March 16th, and did not believe his testimony as to the purchase of the stock, for these issues were both fairly submitted in the court’s charge.

After appellant had testified as to his business, the state on cross-examination asked appellant where he got that mule he sold to Mr. Britton, and appellant was, over his objection, interrogated in regard to this transaction. He said he purchased the mule from a white man, paying $65 for it, and sold it for $70, making $5 on the transaction. The state in no way contested this testimony as to the Britton mule, accepting his testimony as final on that issue. While there is nothing in the questions and answers to suggest the state was charging that he had stolen the mule sold to Mr. Britton, appellant’s objections were:

“That it was testimony that the defendant had sold a‘mule supposed to have been stolen property to one Joe Britton a short time prior to the transaction in issue on this trial.”

If such be the correct construction to place on the Britton transaction, there was no error in admitting the testimony. His defense in this .case was a purchase of the animals stolen from Mr. Dwight, and as this was his defense, evidence of a similar transaction a short time prior would be admissible) on that issue.

The only other complaint relates to the court’s charge on who are principals; appellant contending that it was error to charge the law of principals. The state’s testimony would have appellant and others go up the road March 16th to a point near Mr. Dwight’s residence; that his horses were stolen that night, and would have appellant and others returning that night leading four head of stock of the character and kind lost by Mr. D.wight; would have appellant and two others in possession of the two mares when they were recovered. No one saw who took the stock out of Mr. Dwight’s pasture, and no one could say who of the five men in the wagon were leading this stock on the return trip to Dallas. Appellant’s testimony offers no explanation; he relying on testimony tending to prove an alibi, and testimony of purchase of the stock on the morning of his arrest. Under such circumstances it was proper to charge the law of principals, and the charge as given was very favorable to appellant. It reads:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such'persons so aiding or encouraging are principal offenders, and may be prosecuted as such.
“You are therefore charged that if you find and believe from the evidence beyond a reasonable doubt that the offense, if any, charged in the indictment was actually committed as therein charged, and you further find and believe from the evidence that such offense, if any, was committed by four men, or either or all of said four men other than the defendant, and you further find and believe from the evidence beyond a reasonable doubt that the defendant was present and knowing the unlawful intent, if any, aided by acts or encouraged by words or gestures, if he did so aid or encourage either or‘all of said four men, if any, actually engaged in the commission of the offense, charged in the indictment, if any, then if you so find you are instructed that the defendant would be a principal offender and would be guilty as charged in the indictment.
“If, on the other hand, you find and believe from the evidence beyond a reasonable doubt that the offense, if any, charged in the indictment, was actually committed as therein charged, and you further find and believe from the evidence, or if you have a reasonable doubt thereof, that such offense, if any, was committed by either one or all of said four men other than the defendant, and you further find and believe from the evidence, or if you have a reasonable doubt thereof that the defendant was not present at the time and place of the com.mission of such offense, if any, or if you further find and believe from the evidence, nr have a reasonable doubt thereof that the defendant did not encourage by words or aid by acts or gestures the said four men, if any, other than the defendant or either or all of them in the commission of such offense, if any, then if you so find or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict not guilty.”

The judgment is affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CALDWELL v. STATE.
    (No. 4248.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.
    Rehearing Denied Dec. 20, 1916.)
    Criminal Law <&wkey;1144(18) — Appeal—Review-Denial op Motion por New Trial —Presumption.
    Where defendant, convicted of crime, moved for new trial on the ground of newly discovered testimony, the affidavits being in the record, but the trial court states that he heard evidence in regard to the matter' and found •against defendant, the Court of Criminal Appeals cannot review the question, in the absence of the testimony on which the trial judge based his finding; the presumption obtaining that the 'court ruled correctly.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dec. Dig. @= 1144(18).]
    Appeal from District Court, Bed Biver County; Ben H. Denton, Judge.
    Emerson Caldwell was convicted of arson, and he appeals.
    Judgment affirmed.
    Travis T. Thompson, of Clarksville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of arson, his punishment being assessed at five years’ confinement in the penitentiary.

The evidence is conflicting. The state relied upon accomplice’s testimony and such corroboration as was obtainable. We are of opinion that the corroboration is sufficient under the statute, and tends to connect the defendant with the burning. The accomplice makes out a clear case, not only against appellant but himself.

Newly discovered testimony was set up in the motion for a new trial, supported by a couple of affidavits. The court signs the bill of exceptions by stating that he heard testimony with reference to these affidavits and this matter on the motion for new trial, and ruled against the defendant. This evidence is not before this court in any way, either by bill of exceptions or in statement of facts. The affidavits are in the record, but the court practically eliminates their consideration by stating that he heard evidence in regard to the matter set up, and found against appellant. We think this disposes of the matter adversely to appellant. We cannot review it in the absence of the testimony upon which the judge based his finding. If the defendant believed there was error in this ruling, the testimony should have been before this court as a predicate for its action. In the absence of the testimony the presumption will obtain that the court ruled correctly. This is the only matter relied upon, it seems, by appellant, and it is not well taken.

The judgment will be affirmed.

HABPEB, J., absent.
      ;gun>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HABPEB, J.

text:
    WYATT v. STATE.
    (No. 4264.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1.Indictment and Information <3=>128 — Sufficiency — Disorderly House — Statutes.
    In an indictment for keeping and aiding and abetting the keeping of a house where prostitutes were permitted to reside to ply their vocation, two counts based on the same transaction, one charging accused with committing the offense as agent for another, and the other charging him directly with keeping, were proper; it being permissible to charge the offense to have been committed, in different counts, in any of the ways denounced by the statute.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 403 — 413; Dec. Dig. <§=>128.]
    2. Indictment and Infoemation @=132(4)— Election Between Counts.
    Where an- indictment for keeping and aiding and abetting the keeping of a house where prostitutes were permitted to reside to ply their vocation contains two counts based on the same transaction, one charging accused with committing the offense as agent for another, and the other charging him directly with keeping, the' state is not required to elect upon which count it will prosecute.
    [Ed. Note. — For _other cases, see Indictment and Information, Cent. Dig. |§ 439-443, 445; Dec. Dig. @=132(4).]
    3. Criminal Law @=598(6) — Continuance-Witness — Diligence.
    Where a motion for continuance showed that accused waited until the day before trial to have process issued to an absent witness, when no one knew the whereabouts of the witness, and did not -show effort by accused to ascertain the location of the witness, it failed to show diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig; § 1337; Dec. Dig. @=598(6).]
    4. Disorderly House @=16 — Knowledge-Evidence — Admissibility.
    In a prosecution for keeping a house for prostitutes, where accused testified that he did not know the character of the women, or that they were plying .the vocation of prostitutes, testimony of a witness that she, her sister, and another woman stayed at the house for a month, that all three were prostitutes plying their- vocation, and that accused had intercourse with her the first night she was there, and came to her room several times and stayed a while, was admissible, on question of conveying knowledge to accused of the character of the women residing at the house, and that they were plying their vocation.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. @=16.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    J. H. (I-Ieuse) Wyatt was convicted of crime, and he appeals.
    Affirmed.
    Balph P. Mathis, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HABPEB, J.

Appellant was convicted under an indictment charging him with keeping and aiding, assisting and abetting the keeping of a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation.

The court did not err in overruling the motion to quash the indictment. Both counts were based on the same transaction, one charging him with committing the offense as the agent of T. J. Leachem, and the other charging him directly with' keeping. Both counts specifically charge an offense, and it is permissible to charge the offense to have been committed, in different counts, in dny of the ways denounced by the statute. Neither is the state required to elect upon which count it will prosecute under such circumstances.

Appellant’s motion for a continuance fails to show he exercised diligence to secure the attendance of the absent witness. He waited to have process issued until the day immediately preceding the day the case was called for trial, and it is shown that no one at that time knew the whereabouts of the witness, and appellant does not show that he made any effort to ascertain the location of the witness.

The testimony of Ethel Ward was properly admitted in evidence as conveying knowledge to appellant of the character of the women resorting to and residing at the house, and the further fact they were at that house plying their vocation. Appellant testified he did not know the character of the women and did not know they were plying the vocation of prostitutes while they stayed at the house; that as soon as he ascertained that fact he put the women out of the house. Ethel Ward testified she stayed at the house for a month; that her sister and another woman also stayed at this house during all the time she stayed there; that all three were prostitutes plying their vocation, and, as carrying knowledge to appellant, she testified:

“This man Wyatt came to my room several times while I was there and stayed with me a while each time. He had intercourse with me, the first night I was up there and told me' to be quiet up there. Certainly Wyatt knew what I was doing up there at the house.”

The judgment is affirmed.
      @=For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BURLINGTON v. STATE.
    (No. 4219.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Criminal Law <@=1036(2) — Appeal— Preservation oe Exceptions.
    Error, if any, in receiving an answer of a witness in impeaching accused that he made a statement to her “just after he was tried for killing a man,” when the question only legitimately called for the time of the statement, cannot be complained of by accused when it was promptly excluded and the jury directed not to consider it, in the absence of request for further instructions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2640; Dec. Dig. <@=31036 (2).]
    2. Criminal Law <@=31037(2) — -Appeal-Preservation oe Exceptions.
    Accused cannot complain of alleged improper argument of the prosecutor, in the absence of requested instructions to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dee. Dig. <§r=> 1037(2).]
    3. Criminal Law <@=939(3) — New Trial— Newly Discovered Evidence — Diligence.
    Where the application disclosed that the witness, whose newly discovered testimony was its basis, had been present at the trial and that no inquiry to secure her testimony was made, there was lack of diligence, and new trial should not be granted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2319; Dec. Dig. <@=3939(3).]
    Appeal from District Court, Fannin County ; -Ben H. Denton, Judge.
    Frank M. Bullington was convicted of as-’ sault to murder, and be appeals.
    Affirmed.
    L. C. Fuller and Cunningham & McMahon, all of Bonham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

From a conviction of assault to murder appellant prosecutes this appeal. This is the second appeal, the opinion on the former appeal being reported in 180 S. W. 679.

There are but four bills of exception in the record, the first relating to a question propounded to the witness Mrs. Press Johnson, and her answer thereto, the answer being:

“It was about the last of May or first of June — the next day after he was tried for killing that man in Dallas.”

Appellant at once objected to the answer of the witness, and asked that it be expunged from the record, and the jury instructed not to consider the answer of the witness. The district attorney joined in the request, and the court at once instructed the jury not to consider it. The district attorney had asked appellant if he did not make a certain statement in the presence of Mrs. Johnson upon his return from Dallas, and he denied doing so. The state was examining Mrs. Johnson as to this matter, and merely asked her, “Do you remember the defendant being at your house last spring on the day he came back from Dallas?” The question was not improper, the state had the right and it was its duty to direct her mind to the time and place when it is claimed certain statements were made by appellant, offered to impeach him. The latter part of the answer of the witness was not responsive to the question, was a volunteer statement of the witness, and when the court promptly excluded and directed the jury not to consider it, if appellant desired any further instructions given, he should have requested that it be done.

The other three bills all relate to different portions of the argument of the private prosecutor, Mr. J. M. Baldwin. The bills prepared by appellant were rejected by the court, and the court in each instance prepares other bills, giving the remarks as reduced to writing at the time by the court stenographer. The bills prepared by the court, with the setting set forth, and the full particulars connected with each objection made, would evidence very slight, if any, improper argument. No request was made that the court charge the jury not to consider such remarks, and the remarks, if any portion thereof should be held to be slightly erroneous, present no ground for reversal, in the absence of requested instructions.

The only other matter presented is alleged newly discovered testimony. It is set fortli that Mrs. Lena Cobb was present the morning after Mrs. Bullington was shot by her husband (appellant), and that when they were undressing her and took some money off of her, she said: “Doctor, give that money to Frank (appellant), and he will take care'of it for me.” As Mrs. Bullington testified that appellant intentionally shot her, it is contended that this remark would have a tendency to show that she did not so consider the shooting, immediately after it occurred, and would lend strength to appellant’s contention that the shooting was accidental. The most that can be said is that such testimony would have a slight tendency to so show. The record discloses that Mrs. Cobb was present as a witness at the former trial and at this trial, and the law requires that diligence be used to ascertain what the witness knew in regard to the matter under investigation. Appellant was at home when Mrs. Cobb came to see his wife on the morning she was shot, and this naturally put him upon inquiry as to what her testimony would be, but he swears he made no inquiry of her. It is the rule that where a witness is subpoenaed in a case, attends court, and no inquiry as to her testimony is made of her, such application is lacking in diligence, unless some good reason is shown why she was not interviewed, and a new trial should not be granted. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Halliburten v. State, 34 Tex. Cr. R. 410, 31 S. W. 297.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■HARPER, X PER CURIAM. PRENDERGAST, P. J.

text:
    WILSON v. STATE.
    (No. 4135.)
    (Court of Criminal Appeals of Texas.
    Oct 25, 1916.
    On motion for Rehearing, Dec. 20, 1916.)
    1. Ceiminal Law «==>917(2) — Continuance-Denial as Geounds fob New Tbial.
    Continuance for absence of witnesses is no longer a matter of right, but, when overruled, on motion for new trial, the allegations should be considered in the light of the evidence heard on the trial, and if the absent testimony would have been material to some issue in the case, and proper diligence was used to secure the attendance of the witness, a new trial should be granted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2162; Dec. Dig. «=>917(2).]
    2. Ceiminal Law <3=595(1) — Continuance— Absence of Witness.
    Where a witness for defendant charged with murder, who would testify that he knew a person was dead to whom deceased had stated that he was going to beat defendant up, was absent from home when the sheriff sought to serve process on him issued by defendant, and such absence was procured by defendant’s uncle, with whom defendant was not shown to have had any connection from the time the subpoena was issued until the time of the trial, the court erroneously denied continuance for absence of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. «=595(1).]
    3. Ceiminal Law «=594(1) — Continuance— Willful Absence of Witness.
    Though the conduct of a witness in willfully absenting himself is censurable, defendant cannot be held responsible to justify denial of his motion for continuance on the ground of absence of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. «=594(1).]
    4. Ceiminal Law «=941(1) — New Tbial— Geounds — Absence of Witnesses.
    In a prosecution for murder, the trial court erred in not granting new trial for the absence of three witnesses, the materiality of whose testimony was made manifest, although the testimony of one of them, defendant’s mother, would be cumulative of that of his father, and the testimony of another would be cumulative to some extent.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2328, 2330; Dec. Dig. «=941(1).]
    5. Schools and School Disteicts «=176— Right of Teaches to Punish — Use of Fists.
    A teacher is not authorized to use his fists in administering corporal punishment, even though the pupil conducts himself so as to demand discipline.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 345, 347; Dee. Dig. «=176.]
    6. I-Iomicide «=309(4) — Insteuctio ns — Man-SLAUGHTEE.
    Where a schoolboy shot his teacher after the teacher started toward him, as if to punish for an insulting remark, without a switch or other usual instrument in his hand, the teacher having stated previously that he would beat the pupil up so that his parents would not know him, the issue of manslaughter should have been submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 653; Dee. Dig. «=309(4).]
    7. Homicide «=304 — Insteuctions—Acci-dent.
    In a prosecution of a schoolboy for shooting his teacher, where the issue of accidental discharge of the pistol was not in the case, the court properly refused a special charge presenting it.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 636; Dec. Dig. «=304.]
    8.Ceiminal Law «=364(5) — Evidence—Res Gestas — Homicide.
    In prosecution of a schoolboy for shooting his teacher, testimony of a witness as to what defendant told him almost immediately after the shooting, when defendant was still laboring under the excitement of the moment, there having been no break or let down in his state of mind, was admissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 805, 808, 816; Dec. Dig. «=364 (5).]
    ' Appeal from District Court, Clay County; Wm. N. Bonner, Judge.
    Jay Wilson was convicted of murder, and he appeals.
    Judgment reversed, and cause remanded.
    H. F. Weldon, of Bowie, and Arnold & Taylor, of Henrietta, for appellant. Leslie Humphrey, of Wichita Falls, Wantland & Parrish, of Henrietta, and C. C. McDonald, Asst. Atty. Gen., for the State.
   ■HARPER, X

Appellant was convicted of murder, and Ms punisMnent assessed at 25 years’ confinement in tlie state penitentiary.

Appellant was a boy 17 years of age, attending the Newport public school. Deceased, X G. Wright, was the teacher in charge of the school. Appellant handed in a composition, written in part in his handwriting and in part in the handwriting of a young lady. On the day of the homicide deceased was criticizing this paper; said he was going to give no grade on it, and that he was going to report the matter to the pupil’s parents. Appellant spoke up and said, “That he could report; he did not guess anybody cared.” The teacher remarked, “Don’t you get too smart or sassy back there,” and, after, making this remark, started to the-seat occupied by appellant. As to whether the teacher spoke in an angry tone of voice, or in his usual tone, is a disputed fact in' the testimony, as also his looks and actions on that occasion. The state’s evidence is that when deceased got in about 10 or 12 steps of appellant, appellant got up out of his seat, drew a pistol, and threw it on deceased and told him to come no nearer, and when deceased did not stop, appellant shot deceased; that the teacher then got hold of appellant, when a second shot was fired. Appellant contends that the deceased spoke in an angry and threatening tone of voice; that when he started towards him he did so in an angry and threatening manner; that he had been informed the Saturday before that the teacher had said to WiR Simpson that “he intended to beat him (appellant) up so his parents would not know him,” and, thinking he was going to carry this threat into execution, when the teacher got near him he drew Ms pistol and asked Mr. Wright to stop three times; that Mr. Wright kept coming, and caught Mm by the right shoulder, and a scuffle began, when he fired the pistol. This is a short synopsis of the testimony.

When called on to announce ready for trial the defendant moved to continue the case on account of the absence of his mother, Wells Teague, and R. E. Morrow, stating what he expected to prove by each of them. This was the first application for a continuance. We will state that a continuance is no longer a matter of right but, when overruled, on motion for a new trial the allegations should be considered in the light of the evidence heard on the trial, and if the absent testimony would have been material to some issue in the case and proper diligence had been used to secure the attendance of the witness, a new trial should be granted. Appellant, in the application for a continuance, stated that Will Simpson, on Monday before the homicide on Friday, told Mm he had a conversation with Prof. Wright, and in the conversation Prof. Wright had said he intended “to beat him (appellant) up and send him home in such shape that his people would not know him”; that Will Simpson had since died, and he could prove this fact by no other person than the witness Morrow. When the motion for a new trial was presented the affidavit of Morrow was introduced, showing that if he had been present at the trial he would have testified that he heard the teacher make this statement to Simpson. Appellant on the trial testified- that Simpson had told him about this conveisation, and that on the day of the homicide, when Prof. Wright started toward appellant, he thought he was going to do what he had told Simpson he was going to do; that he came toward Mm with his right hand in his pocket, looking angry, and caught hold of him as if to execute the threat. No other person testified to this threat other than appellant, who testified Simpson had so told Mm. He could not even testify that the threat had been made, and this makes it the more apparent it was material to his case to have some one present who would testify that the threat had been made and the language used by deceased. The appellant had process issued for this witness as soon as he learned he was present when the conversation took place between Mr. Wright and Simpson; it was returned not served, but the witness in his testimony shows he was only temporarily absent from home when the sheriff returned the subpoena, and was absent not exceeding 48 hours. -So it may be said that appellant is shown to have used diligence, unless he can be charged with the conduct of an uncle, Charlie Morris. This uncle deniesi getting the witness Morrow to leave, but the state introduced facts and circumstances where the court perhaps would be authorized to find, as he did, that this uncle was instrumental in keeping the witness from attending court. The question, therefore, is, Can this appellant be charged with the acts of the uncle? for if so, there was no error in overruling the motion for a new trial in so far as the witness'Morrow is concerned. Appellant did not live with his uncle, but lived with his father. He is not shown to have had any connection with the uncle from the time the subpoena was issued until the time of the trial. Not being shown to have had any knowledge of the acts of the uncle, and the testimony being so material, we are of the opinion the court was in error in his ruling.

Again, as to the witness Wells Teague, there is no question this witness willfully absented himself. His testimony, however, is material, and while to some extent cumulative, yet if he would testify .as appellant states, he would support appellant in his contention that he fired no shot until.after Mr. Wright had caught hold of him and the scuffle began. This is a disputed issue in the case. The conduct of Teague in willfully absenting himself is censurable, but appellant cannot be held responsible for such conduct, as he in no sense is shown to have been responsible for such conduct oñ the part of Teague.

It is true the testimony of his mother, if it would be as alleged, would be cumulative of that of his father, but this is the first application for a continuance. Taking the testimony of the three witnesses, the court is of the opinion that the trial court erred in not granting a new trial when the materiality of the testimony of the absent witnesses was made so manifest.

Another bill strongly insisted on by the appellant that the court erred in not charging on manslaughter is not agreed to by all the court, however, in view of another trial we will say that the trial court should charge on manslaughter. A special charge was requested and exception reserved to the failure of the court to give it, and to the court failing to submit the issue of manslaughter in his main charge. It is contended that when there is evidence of a threat made by deceased that “he was going to beat appellant up so that his parents would not know him and send him home,” and evidence that deceased started towards appellant in an angry and threatening manner (carrying no switch or other instrument with him to administer such punishment as a teacher would ordinarily administer), and evidence that he caught appellant by the shoulder with one hand and threw the other around him as if to execute the threat, this raises the issue that appellant’s mind might have been in such a state of anger, fear, resentment, or rage as to render his mind incapable of cool reflection, and in the light of the threat, if believed, the other facts and circumstances would be deemed adequate cause if in fact his mind was so affected. If deceased had gone towards appellant with a switch or other instrument usually used by teachers to administer corporal punishment, perhaps the issue might not be in the case, but a teacher is not authorized to use his fist in administering corporal punishment, even though the pupil so conducts himself as to be in need of and require discipline. In this case there is no evidence that the teacher intended to administer the punishment in any other way than with his fists, and it may be that the court should in a proper charge, submit manslaughter on the evidence offered in behalf of appellant, and on another trial, if the evidence is the same, and especially if supplemented by the testimony of Morrow, the court should properly submit that issue.

We hardly think the issue of an accidental discharge of the pistol is in the case, but rather that it was intentionally fired by appellant during the scuffle, as he puts it, and, under such circumstances, there .was no error in refusing the special charge presenting that issue. This matter may be made clearer on another trial, and the court can so frame the charge on that issue as the evidence then adduced may authorize.

The testimony of the witness Morris in regard to what appellant told him almost immediately after the shooting, under the record we have before us, should have been admitted. It is evident that appellant was still laboring under the excitement attendant upon the shooting, and it does not appear there had been a “break or let down,” as some authorities put it, in his state of mind. There had not been time nor opportunity to frame a defensive explanation, and under the broad rule in force in this state such statement would be res gestee of the transaction.

We do not think the other matters ¡complained of present error; but, on account of the matters hereinbefore discussed, this ease will be reversd.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

PER CURIAM.

Rehearing denied.

PRENDERGAST, P. J.

(dissenting). I have read and studied the record and every question raised in it thoroughly. I deem it useless to discuss the questions, but I cannot get my consent to even impliedly consent to a reversal of this case.

I think it could be demonstrated from the record and authorities that there was no error in overruling appellant’s motion for a continuance. I think he could have procured, with any reasonable diligence, the attendance of the witnesses, if he had wanted them. I think that, instead of wanting them, lie wanted a continuance.

Without discussing it, the testimony, in my opinion, did not raise manslaughter, and the court correctly refused to charge thereon.

To my mind, it is clear that the statement by appellant to the witness Morris was not res gestee; and the court properly excluded it, as hearsay and self-serving.

I, therefore, respectfully dissent.
      <&5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes