text:
    PHILLIPS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.
    Rehearing Denied March 25, 1914.)
    1. Cbiminal Law (§ 621) — Former Jeopardy —Motion por Continuance.
    Where accused pleads a former conviction, from which an appeal is pending, he must move for a continuance of the second prosecution until the appeal is determined, if he would take advantage of his plea.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1382, 1387; Dec. Dig. § 621.]
    2. Criminal Law (§ 291) — Former Conviction — Raisin® Objection on Appeal.
    Where an appeal is pending from conviction claimed to be former jeopardy in a second prosecution, on appeal from a conviction in the second prosecution, defendant cannot for the first time show the result of-the former trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 667; Dec. Dig. § 291.]
    3. Criminal Law (§ 423) — Evidence—Conspiracy.
    Where the facts, in a prosecution for robbery occurring at the time of an assault, show a conspiracy to beat prosecutor, hired to ferret out places where liquor was unlawfully sold, prosecutor may testify what his business was, and that he met one of the conspirators at the barber shop, where the assault took place, by appointment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. § 423.]
    4. Witnesses (§ 414) — Admissibility oe Evidence.
    ' Where, in a prosecution for robbery occurring at the time of the .beating of prosecutor because he was ferreting out places where intoxicating liquors were sold, it was sought on cross-examination of prosecutor to show that his testimony was a fabrication, he may testify, as well as the supporting witnesses, that after he left the place where the assault and robbery took place he exhibited his injuries to the deputy sheriff) county attorney, and city marshal, who had been summoned by him.
    [Ed. Note.. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    5. Robbery (§ 23) — Evidence — Internal Revenue License.
    In a prosecution for robbery occurring during an assault of prosecutor under an alleged conspiracy in a place he was attempting to get evidence against as selling intoxicating liquors contrary to law,_ the state may show that defendant, the proprietor of the place, had a United States internal revenue license, and explained that he got it to avoid prosecution by the federal authorities.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 29-31; Dec. Dig. § 23.]
    In a prosecution for robbery: evidence as to prosecutor’s criminal intimacy with women held inadmissible to impeach him.
    6. Witnesses (§ 344) — Impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent Dig. §§ 1120, 1125; Dec. Dig. § 344.]
    7. Criminal Law (§ 829) — Requested Instructions.
    A requested charge, substantially covered by the charge given, is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    8. Robbery (§ 24) — Sueeiciency oe Evidence.
    In a prosecution for robbery, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.]
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    E. Phillips was convicted of robbery, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No, Series & Rep’r Indexes

   PRENDERGAST, P. J.

From a conviction of robbery with the lowest penalty assessed, appellant prosecutes this appeal.

We will make a statement of what the evidence in effect shows and justified the jury to believe. The local option law prohibiting the sale of intoxicating liquors was in force in Upshur county. Violations of said law were occurring by different persons, called by some “bootleggers.” The authorities were anxious to ascertain who the guilty parties were and punish them. The city council of Gilmer, the county seat, the city marshal, the sheriff, and county attorney engaged one W. O. Hayles to ferret out such violations, against some of whom proceedings had been begun, and others were to be prosecuted before this offense is alleged to have been committed. Hayles had not lived at Gilmer but a short time prior to the alleged offense in this case on April 18, 1912. After his said employment he went to work to ferret out and procure evidence against such parties as were guilty. The evidence was sufficient to justify the jury to believe that appellant and his associates had information and knowledge of the work said Hayles was then engaged in; that appellant and several others, his associates, entered into a conspiracy, among other things, to severely whip or beat said Hayles and run him out of the town and county so as to prevent him from doing the work he was engaged in. Appellant was the proprietor, or worked, in a barber shop in Gilmer. The building was cut into two rooms by a partition clear across about the center, in the center of which partition was a door from the barber shop to the back room. During the evening of April 18th Fritz Boyd, one of appellant’s associates, made an agreement with Hayles for Hayles to meet him early that night in the town at which time ostensibly he would see if he could get some whisky to drink. Hayles met this party that night about dark or just after, near said barber shop, when the party invited him up into the barber shop for the purpose of getting and drinking some whisky. Boyd then invited Hayles into said barber shop to take a drink and led the way; Hayles following. When they went into the shop, appellant was about his barber chair, having something in his hands connected with that business. Boyd walked up. to him and told him they wanted a drink. He laid down whatever he had and said all right, and they then went from the barber shop through said door in said partition into the back room; appellant leading the way. The three, appellant, Boyd, and Hayles, then went into this back room in the order named. As soon as they got into this back room, appellant reached up on a shelf, got a bottle of whisky and a glass, an ordinary whisky glass. He poured out a drink in the glass, handed it to Boyd, who drank it. He poured out another drink in the same glass and handed it to Hayles, who drank it. He then replaced the glass and bottle on the shelf. There were two bottles on this shelf. Just as this occurred Hayles at once was attracted to other parties in the front room, appellant’s associates. They were then barring or fastening the front door of the barber shop from the inside. Appellant immediately took hold of Hayles’ arm and asked him, “What have you got on you?” He replied, “I haven’t got much of anything.” Appellant said, “You see that rope there?” Hayles said, “Yes, it don’t look like anything but a rope to me.” Appellant said, “By God, you will think it is something but a rope.” Hayles replied, “Well, I might, but that is all it looks like now.” Some one of appellant’s associates then picked up the rope. Fritz Boyd then took hold of Hayles’ other arm; appellant still holding the one he had at first taken hold of. Appellant then said, “You God damn son of a bitch, you, we have trapped you.” Appellant then ran his hand into Hayles’ right-hand pocket and took out therefrom Hayles’ knife and at least 50 cents in money which he had therein at the time and put it in his (appellant’s) pocket and kept it. Hayles resisted this with all his might and struggled with appellant and Boyd to get loose, and fought them trying to get loose. While in this struggle several others rushed into the back room from the barber shop and some one, Hayles could not tell who, struck him a severe lick in the back of the side of the head, which rendered him unconscious. When he regained consciousness he found himself stretched upon the floor, face downward, each arm stretched out, appellant on and holding down one arm, and another of his associates the other arm; two others, each on one of his legs and another on top of him with his knees about his shoulders, holding a cloth over his nose and mouth; still another beating him on his rump and back with a rope. The beating was quite severe, rendering said parts of his body red and black from the bruises of the whipping. After thus inflicting this cruel, outrageous beating and whipping of him until they were satisfied therewith, they ceased and helped him up. Appellant and Boyd, on either side, had hold of his arms, raised him up, and placed him on his feet. When first beating him it seemed they did so with his clothes on, but towards the last appellant said, “Take the God damned son of a bitch’s breeches down,” which they did, and then beat him some more and until appellant said, “That will be enough.” One of appellant’s associates, James Keddick, then produced a pistol and presented it in Hayles’ face and asked him if he saw it Hayles replied, “Yes.” They then asked him, “Can you leave town?” He said, “Well, I can do it.” They said: “Well, you see that. If you are here in the morning, you will get a ball in you. We have got more friends here than they think we have, and you better be gone from here in the morning; if you are not, you will get a ball in you.” Said Keddick was doing that talking. Appellant, at the same time, said: “We have got more friends here than you think we have, and you better be gone in the morning.” They then took him to the front door of the barber shop, opened it, took him out, and then again told him as he was leaving : “You better not be here in the morning; if you do, you will get a ball in you, and you better be God damn sure to leave.” .Hayles said he would be glad to go home and get his clothes. They said: “You can go home and get your clothes, but you better be damned sure you ain’t here in the morning; i£ you do, you are going to get a ball in you.” Hayles then asked them if he could leave, and they told him he could. Hayles then at once left them and started towards his home. They, or some of the crowd, watched him, and still did so until he had gone some distance and got out of sight of the location where the barber shop was. Immediately after leaving, and within a short distance, and while he was still in sight of these parties, Hayles met the city marshal and said to him, “Follow me,” not stopping, but continuing towards his home. The city marshal did not not then understand what had occurred, nor why Hayles told him to follow him, but supposed that he wanted him to keep in sight of him because he thought he would go where some parties were and procure whisky. The city marshal watched him for some time and saw some others, at least said Reddick, also watching Hayles, until Hayles got out of their sight Hayles proceeded at once to his home, and, as soon as he could get hold of a telephone, called the deputy sheriff and the city marshal. After some little delay they came to where he was and he told them what had been done to him. They, together with him, went to the county attorney’s room, where he slept and had retired, and woke him up and told what had occurred. At this time he took down his clothes and showed these officers where and how he had been beaten, and also at the same time told them of and showed them a large knot on his head, which he said was the size of a guinea egg; one of the other witnesses said the size of a hen egg, and another the size of his fist, but he thought this was a little exaggeration of the size of it. Hayles, at the time, insisted upon these officers going with him and at once arresting appellant and the others, but especially appellant, claiming that he had been robbed by appellant, and that if they would then go with him, arrest and search appellant, his (Hayles’) knife and mom ey would be found on appellant’s person. By this time it was somewhat late at night, and the officers concluded that they would make no arrest until next morning. The next morning Hayles made complaints against appellant and the others, and they were arrested. Said Reddick broke jail and was a fugitive from justice, and it appears has not yet been apprehended nor arrested since he broke jail. Appellant and some of his witnesses denied all this, and claimed said barber shop was not open that night; that they were not there, and said whipping, robbery, etc., did not occur.

In June, 1912, the grand jury of said county was convened and organized at the regular term of the court. Upon investigation they indicted several of these parties for various offenses growing out of this transaction. Among others, they indicted appellant for false imprisonment, and in another indictment for robbery. The indictment charging appellant with false imprisonment of said Hayles was properly transferred from the district to the county court of said county, and he was tried and convicted thereon, from which conviction he at once appealed. 161 S. W. 459. Thereafter, on June 17th, this cause was called for trial and tried, and from a conviction he prosecuted this appeal.

The main question raised and presented herein is appellant’s contention that the former conviction in the county court case was former jeopardy, and that this conviction cannot stand on that account. The record on this point clearly shows that, when this case was called for trial, appellant pleaded said former conviction of false imprisonment1 as a bar to this prosecution, alleging that both this and that offense occurred at the same time and as a part of the same transaction; that the grand jury indicted for both; and that the misdemeanor case was transferred from the district to the county court and first tried, resulting in his conviction. His plea alleges that the county court conviction had never been vacated, discharged, or set aside. It does not allege that no appeal was prosecuted therefrom. He says that he attaches a copy of the indictment to his plea, but we find none therewith or elsewhere in the record. He also says therein that he attached a copy of the judgment of said county court conviction, but it is not attached and is nowhere in the record. The statement of facts on this point shows that appellant offered in evidence the said misdemeanor indictment, and states that it charged appellant with false imprisonment on April 18, 1912, by means of an assault and actual violence to said Hayles and by putting him in fear of bodily injury in two counts, and that he also offered the judgment in said misdemeanor case. Neither the indictment nor judgment are copied in the record, but it is stated in the statement of facts that it was agreed that on said misdemeanor indictment appellant was tried in the county court of Upshur county at the May term, 1913, thereof, and judgment of conviction was entered in said cause, adjudging him guilty of false imprisonment of said Hayles as charged therein. “That thereafter a motion for new trial was filed and overruled, and the defendant perfected his appeal in said cause, by giving notice of appeal and entering into bond as the law requires, and that that appeal is now pending in the Court of Criminal Appeals undisposed of.” After hearing all this evidence the court below in this case told the jury they must not mention or discuss the result of the trial in the county court wherein defendant was charged with false imprisonment; that the result of said trial was admitted solely upon appellant’s plea of former jeopardy, and such plea liad been withdrawn from the jury, because the court bolds that it is without merit.

We have given this subject a careful and thorough investigation. The law on the subject is so well settled and clear, we deem it unnecessary to discuss the question at any length or to cite all of the authorities. We will therefore only discuss, cite some of the authorities, and decide the point.

Our Constitution says: “No person, for the same offense, shall be twice put in jeopardy of life or liberty.” Article 1, § 14. Our statute (article 572, C. C. P.) expressly requires that, when an accused seeks to take advantage of a former conviction, he must do so by sworn plea in writing (article 573). It has all the time been held by this court that such defense cannot be made 'under the plea of not guilty, .and that unless appellant properly pleads it, by sworn plea in writing, he cannot get advantage of it. It is also well established that where appellant seeks to avail himself of this defense, where the former conviction is pending on a motion for new trial, or an appeal has been taken, and it is pending on appeal, he must make a motion to continue the second case to await the disposition of the motion for new trial, or appeal, as the case may be, and, when he does not do so, he cannot take advantage under such plea to defeat a trial and conviction. Dupree v. State, 56 Tex. Cr. R. 563, 120 S. W. 871, 23 L. R. A. (N. S.) 596, 133 Am. St. Rep. 998; Lindley v. State, 57 Tex. Cr. R. 306, 122 S. W. 873; Dupree v. State, 56 Tex. Cr. R. 388, 120 S. W. 875; Maines v. State, 37 Tex. Cr. R. 617, 40 S. W. 490; Powell v. State, 42 Tex. Cr. R. 11, 57 S. W. 94; Brown -v. State, 43 Tex. Cr. R. 272, 64 S'. W. 1056; Washington v. State, 35 Tex. Cr. R. 156, 32 S. W. 694. No such motion or suggestion of it, so far as this record shows, was made in the court below. So that clearly the court below committed no error when he refused to submit to the jury for a finding appellant’s plea of former conviction, and correctly held that there was no merit therein. It is also clear that, whatever be the result of the appeal in the misdemeanor case, appellant cannot interpose in this court such defense. ‘This court is an appellate court solely and not a trial court. Lee v. State, 148 S. W. 567; Bosley v. State, 153 S. W. 878; Pye v. State, 154 S. W. 226.

Appellant has a large number of bills of exceptions. Several of them present kindred questions. We will therefore not take up each bill separately, but decide the points raised by them.

The court below correctly held that the state could show by said Hayles what his business and employment was, as stated above in the statement of the evidence. And the court correctly held that Hayles could testify that he was at said barber shop by appointment with Boyd; the testimony, as stated by the court in approving the bill, showing that a conspiracy existed between appellant, Boyd, and others to get hold of said Hayles that night to beat and whip him, as they did. The court also correctly permitted Hayles to testify that in passing the city marshal that night he told the city marshal to follow him, and also that later during the same night he told the city marshal, the deputy sheriff, and the county attorney of his said mistreatment, and exhibited his person to them at the time, and their testimony to the same effect. The court qualified appellant’s bills by showing that Hayles had testified in the county court in said false imprisonment case, and that he did not testify in that trial of having been robbed, giving his reasons for not so doing. The court further stated, and the record demonstrated, that “the whole manner of cross-examination (of Hayles) was to make it appear that the witness’ testimony was a fabrication”; and the supporting testimony by said various witnesses was admitted after and in view of the said cross-examination of Hayles. Jones v. State, 38 Tex. Cr. R. 103 and 119, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Gusemano v. State, 155 S. W. 218; Wharton, Crim. Law, § 492, and cases cited in note 3; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Reddick v. State, 35 Tex. Cr. R. 469, 34 _S. h6dW. 274, 60 Am. St. Rep. 56; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Williams v. State, 24 Tex. App. 665, 7 S. W. 333; Keith v. State, 44 S. W. 849; Ballow v; State, 42 Tex. Cr. R. 266, 58 S. W. 1023.

The court correctly permitted the state to prove by appellant, while he was on the stand, that he had United States internal revenue license to sell intoxicating liquors in Gilmer for the time from January 1 to July 1,1912; nor did the court err in refusing to withdraw such testimony from the jury, because appellant, in explanation of why he came to get it, said he did so at the instance of the internal revenue agent to protect himself from contemplated prosecutions in the federal court. Neither did the court err in refusing to permit several of appellant’s witnesses to testify in effect that it was generally understood in another place, where said witness Hayles had lived, that he had been criminally intimate with a young woman and had gotten her pregnant and had left for that reason; and that he had induced a certain girl to run away with him and marry him after he had gotten her in that condition; and that he had talked to various persons about having “times” with said girl, who afterwards became his wife, and on another occasion asking parties if they did not want a “piece,” and invited them to see his wife, and such like matters. None of this could be introduced for the purpose of impeaching the witness Hayles. Branch’s Crim. Law, § 868. ■

There are some complaints of the court’s charge in minor matters, and also some spe■cial charges requested, which were refused. Even if these matters were raised in such a way that we could consider them (Byrd v. State, 151 S. W. 1068), they present no reversible error. Such of the refused charges as were proper were fully and substantially embraced in the court’s charge. The court’s charge fairly, fully, and correctly presented all the issues to the jury for a finding, and all of them were found against appellant. The evidence is amply sufficient to sustain the verdict.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST,- P. J.

license: Public Domain

text:
    GIRTMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied March 25, 1914.)
    1. Criminal Law (§ 666%) — Trial—Conference with Witnesses — Exclusion.
    It was not error for the court, after selecting the jury, but before they were sworn to try the cause or the indictment read and before defendant had pleaded, to permit -the district attorney to confer with the witnesses for the state collectively in a room adjacent to the courtroom and after this to swear all the witnesses and place them under the rule.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1576; Dec. Dig. § 666%-]
    2. Criminal Law (§ 476) — Evidence—Opinion— Cause of Injury.
    It was proper to permit a physician who made a post mortem examination of decedent to testify that the wounds on deceased’s head •could have been made with a 45-ealiber pistol used as a club; the state having introduced in evidence such a pistol, which was shown and admitted to belong to defendant and to have been used by him on the night of the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dee. Dig. § 476.]
    3. Criminal Law (§ 366*) — Evidence — Res Gestae.
    Where decedent on the same night, and but a few minutes prior to the fatal difficulty in which he was killed, went to D. and requested that he interfere in a difficulty then going on, and told him that defendant and certain others were planning to kill decedent, evidence of decedent’s statement to D. was admissible as res gestee.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 306.*]
    4. Witnesses (§ 337*) — Cross-examination-Credibility of Accused.
    Where accused testified in his own behalf, the court properly permitted the district attorney to ask him on cross-examination if he were not then under indictment for assault with intent to murder.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113,1129-1132, 1140-1142,1146-1148; Dec. Dig. § 337.]
    5. Criminal Law (§ 644) — Trial—Acts of Officers.
    It was not error for the court, while defendant was being examined as a witness in his own behalf, to permit the district attorney and sheriff or deputy sheriff to hold a consultation in the presence of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 644.*]
    6.Criminal Law (§ 406) — Statements of Accused.
    Statements made by accused to the sheriff the next morning after the homicide, before accused had been arrested and while the sheriff was making an investigation into the facts, were admissible against him.
    []pd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    7. Criminal Law (§ 1120 ) — Appeal—Bill of Exceptions.
    Exclusion of evidence will not be reviewed, where the bill'of exceptions does not show what answer the witness would have given had the objection been overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    8.Homicide (§ 309) — Instructions — Manslaughter.
    ■ Where the court, in submitting manslaughter, charged that if the jury believed beyond a reasonable doubt that defendant and no other person, with a deadly weapon, in sudden passion arising from an adequate cause, did beat, wound, and bruise deceased, and did inflict the fatal injury, and thereby kill deceased, to find him guilty of manslaughter, and in connection therewith gave a proper charge on circumstantial evidence, accused was not prejudiced by the court’s failure to give the converse of the proposition; the court having also property charged correctly on the question of assault with a deadly weapon.-
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    9. Criminal Law (§ 825) — Trial—Requests to Charge.
    Where the court did not submit the offenses of manslaughter or aggravated assault as fully as accused desired, it was his duty to request further instructions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    10. Homicide (§ 340*) — Appeaj>-Prejudice.
    Where the facts did not justify the submission of aggravated assault, defendant’s complaint of the court’s charge on that offense, even if correct, would not present reversible error.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    11. Homicide (§ 268) — Deadly Weapon — Question for Jury.
    Where the state claimed that defendant killed deceased with a 45-caliber pistol used as a club, which was offered in evidence, identified, and admitted to belong to accused, the court having properly defined the term “deadly weapon,” whether the pistol as so used was a deadly weapon was for the jury.
    [Ed. Note. — For other cases, see Himieide, Cent. Dig. § 562; Dee. Dig. § 268.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Paris Girtman was convicted of manslaughter, and he appeals.
    Affirmed.
    J. E. Edmundson and Duncan & Duncan, all of Bellville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       E’or other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST,- P. J.

From a conviction for manslaughter on a trial for murder, appellant has appealed.

The record shows, by appellant’s first bill of exception, that prior to the announcement of ready the district attorney requested the court for time to confer with the witnesses and arrange the order of testimony. Whereupon the court advised him that he would he given the necessary time after the selection of the jury; that after the jury was selected, and before they were sworn to try the case, or the indictment read, and before appellant had pleaded, the court permitted the district attorney to confer with the witnesses by taking them collectively into a room adjacent to the courtroom, and where each and all of them could hear the testimony of each; that after this, and before any of the witnesses were placed on the stand, all of the witnesses for both sides were sworn and placed under the rule. The appellant objected to this action of the court in permitting the district attorney to thus confer with these witnesses. On what ground is not stated. The bill shows no error. This court, in a uniform line of decisions, has all the time held that such matters must be left to the sound discretion of the trial judge, and, unless the bill shows that this discretion has been abused to the injury of appellant, this court will not reverse. There is nothing in this whole record which indicates that this action of the court and the district attorney in any way injured appellant. The contradiction of one another by the witnesses is more than usual, and there is nothing that tends to show that by the district attorney having them together and going over the evidence in any way caused them to swear to the same thing. See cases cited in section 767, White’s Ann. O. O. P.

The deceased, “old man Allen Reed,” as he is called by the witnesses, is shown to have been killed on the night of February 15, 1918. Dr. Steek, an active practicing physician, made an examination of his body the next morning. His testimony shows, without contradiction that his head and face was beaten in a most cruel and brutal manner. The doctor showed: That there was an irregular cut wound back of the right ear of deceased of the soft tissue about a half inch long. That here the skull was fractured, and he passed a probe downwards toward the mastoid process between the two plates of the bone about iy2 inches. That above the right ear was a lineal wound of the scalp iy2 inches long from front backwards, extending up and down this way (illustrating). That just back of the top of the head was a scalp wound describing about a half of á circle, and in the center of this was a small part of skin in tact. This wound looked as though it had been made by the end of a hollow instrument. That there were several jagged cuts on the nose — one down the center 1 y2 inches long. That there were several on. the right side of the nose, one of which was about 1 y2 inches long. That the nasal bones were broken, the inner side of both orbits broken, as well as both the malar bones, ánd the superior maxillary bone or upper jaw bone was broken transversely about the lower part of the nasal fossa. Several of the upper teeth on the right side were broken loose en masse; that is, there were three or four teeth that hung together in one piece. The bone and whole piece was loose — -broken. That there was a long somewhat circular lacerated wound through the right brow, and a small cut wound on the left upper lid. The lobe of the left ear was cut through. There was a lacerated wound on the left side of the top of the head, which looked as if made with a blunt instrument. This was more in the nature of being broken than cut. It was 2y2 inches long from the front backward and extended through the scalp. There was a scalp wound just below this one, 1 y2 inches long, running vertically. There were several abrasions on the left arm which looked like a puncture; looked as if they were struck at an angle. There was an irregular shaped cut on the flexor side of his left wrist, an abrasion or skinned place on the left leg about the middle thereof, 3 inches long, just to the outside of the shin bone, an abrasion just below the left knee cap, also a skin wound. That these wounds were fatal, and that after those on the head were inflicted the deceased could not have gone anywhere but would have dropped. That the wounds on the head could have been made with a 45-ealiber pistol used as a club, by holding it at either end.

The court did not err in permitting Dr. Steck, as shown above, to testify that said wounds on the deceased’s head could have been made with a 45-caliber pistol used as a club. The state produced, identified, and introduced in evidence a 45-cali-ber pistol which was shown and admitted to have been appellant’s pistol and had by him that night at the time deceased was killed, with blood still on it, though after the killing he is shown to have attempted to wash all the blood off. The pistol was also shown to have been sprung, evidently caused by being used as a club on the head of deceased, and also that the handle thereof was broken and shattered at the time.

The evidence is quite conflicting. Many witnesses, negroes, who were at the scene of the killing, as well as appellant, testified. Notwithstanding the conflicting testimony, from the whole of it, it is clear that a sort of general fight between the deceased and others began at appellant’s house where deceased lived, and that at first the deceased, with a tin, or small penknife, cut, slightly on the arm, one of the negro women who was engaged in the fight with him; that thereupon others became engaged in the fight, or were attempting to prevent it, when some three of the parties either fell or were thrown out of the door of the house, the fight it sée'ms beginning in the bouse. They were separated or separated themselves. One Fax Williams, who was engaged in the fight, or in. attempting to separate the parties, one Or the- other; after getting up or being taken up from the ground, started to the wood pile to procure an ax with which, it seems, he intended to hill the deceased or defend the women with whom deceased was engaged in the fight. Thereupon the deceased started to the house of the landlord, Mr. Diemer, who lived just 200 yards away, announcing that he was going after a gun to protect himself or hill said Williams. Williams was intercepted with the ax, and it was tahen away from him and placed under the bed of appellant’s wife, where it remained and was not in any way used in the fight or otherwise in connection therewith. Deceased immediately proceeded to Mr. Diemer’s house. This was about midnight. He called Mr. Diemer out, ashed, him to go down and tahe appellant’s pistol away from him and mahe Fax Williams leave the place; that they were fixing to hill him. He repeated this request at the time three or four times, and he then told Diemer that if he (Diemer) would not protect him to loan him his gun and he would protect himself. It seems Mr. Diemer did not tahe the matter seriously and did not respond to the deceased’s request. The deceased thereupon immediately went bach to appellant’s house, where he lived, and the fight was continued or renewed. In the meantime, while deceased had gone to Mr. Diemer’s, Fax Williams left the scene and went to his home 1% miles distant and remained and did not hnow of the hilling until the next day. Diemer did not hnow of it until the next day. Diemer further testified that in four, six, or eight minutes — -“a very short while after he (deceased) left” — he heard a pistol shot at appellant’s house. The testimony otherwise clearly shows that appellant- fired this shot at the deceased, but missed him. The testimony also otherwise shows, in effect, that all the other negroes at appellant’s house took refuge therein, leaving only the deceased and the appellant out in the yard; that when deceased returned from Diemer’s and the fight was continued, or renewed, he went into his room and procured a razor and was either attempting to fight or protecting himself therewith; and that he at that time cut another one of the negro women on the arm and she fled the scene taking refuge in the house. It was just after this that appellant fired the shot at the deceased, and from all the evidence it is evident and certain that the appellant, after missing him with this shot, called to deceased to drop the razor. The deceased replied that he had already done so and, holding up his hands, exhibiting them, and exclaiming that he had- already dropped the razor and did not then have it. The razor was found the next morning in the yard near where the body of the deceased was removed-from. It was then that this brutal and cruel-beating and killing of the deceased by appellant, with his pistol used as a club, occurred.

Appellant objected to the testimony of Diemer as to what deceased said to him, in substance: To come up there and take appellant’s pistol away from him and make Fax Williams leave; that they were fixing to kill him, claiming that said testimony was not admissible as res gestae. The court correctly held that it was admissible as res gestse. The testimony shows that it was a, part of the fight between the parties, and that the whole fight was but a continuous one. The authorities are uniform and numerous in holding such testimony was admissible as res geste. We deem it unnecessary, to discuss them. We merely cite some of them. Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; Wiseman v. State, 32 Tex. Cr. R. 454, 24 S. W. 413; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Johnson v. State, 30 Tex. App. 420, 17 S. W. 1070, 28 Am. St. Rep. 930; Tooney v. State, 8 Tex. App. 452; Elmore v. State, 78 S. W. 520; Stanley v. State, 44 S. W. 519; Ency. of Ev. p. 615; Renn v. State, 143 S. W. 168.

Appellant testified. On cross-examination, for the purpose of affecting his credibility, the court correctly permitted the district attorney to ask him if he was not then under indictment for a felony — for an assault with intent to murder. See section 868, Branch’s Orim. Law, where a large number’ of cases are cited.

Appellant complains that while he was on the stand testifying the district attor-’ ney and sheriff, and deputy sheriff, were holding consultations in the presence of the jury. Appellant’s objection to this was that, unless the sheriff or deputy were ejnployed in the ease, it prejudiced and influenced the jury against him in using the sheriff’s influence in that way. This shows no error whatever.

The next morning after the deceased was killed, the sheriff was informed thereof and went out to appellant’s for the purpose of making an investigation, and did so. Among-others, he found appellant there and talked with him about the killing, trying to find out the facts. The sheriff, in testifying, told what appellant said to him on that occasion. His testimony shows clearly that at the time appellant then talked to the sheriff, no arrest had be.en made, and that appellant had not beén arrested. How long afterwards before he was arrested is not disclosed. Clearly what he then told the sheriff was admissible against him; his objections being that his statements were made after he was arrested. The facts show that the statements he made were made before he was arrested as shown above. Hilcher v. State, 60 Tex. Cr. R. 182, 131 S. W. 592; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Cordes v. State, 54 Tex. Cr. R. 210, 112 S. W. 943; Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558; Elsworth v. State, 54 Tex. Cr. R. 38, 111 S. W. 963; Grant v. State, 56 Tex. Cr. R. 415, 120 S. W. 481; Hiles v. State, 163 S. W. 717, recently decided, but not yet officially reported.

Appellant, by another bill, complains that the court would not permit him to ask the witness Palm, sheriff, further questions as to what Pax Williams told him. The state objected because what was sought by the questions was hearsay. The court sustained the state’s objection on that ground. The bill does not disclose what answer the witness would have made and does not show in any way that the court’s ruling was wrong.

The court charged the jury on murder in the first and second degree, manslaughter, and aggravated assault. Appellant complained of the court’s charge on manslaughter and aggravated assault. The charge on manslaughter clearly is in accordance with the statute on the subject. It is unnecessary to copy or further state it. In submitting manslaughter for a finding, he told the jury, in effect, that if they believed beyond a reasonable doubt that the appellant and no other person, with a deadly weapon, in a sudden passion arising from an adequate cause, did on the date alleged, and as alleged, beat, wound, and bruise the deceased, and did inflict the fatal injury, and thereby kill deceased, to find him guilty of manslaughter and assess his punishment. In this connection the court gave a correct charge on circumstantial evidence. Appellant claims that the court should have given the converse of the proposition he did submit, to the effect that if the instrument or weapon by which the fatal injury was inflicted was not a deadly weapon, or the manner of its use was not calculated to produce death, then the law presumes that death was not intended, and if they so find to acquit appellant of manslaughter. The court did charge the jury correctly what was a deadly weapon. It also correctly told the jury that the instrument or means by which a homicide is committed are to be taken into consideration in charging the intent of the -party offending. IP the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears. The court also charged that the burden of proof was upon the state and the presumption of innocence prescribed by the statute. Also, the reasonable doubt between the different degrees of homicide and manslaughter, and “if you find from the evidence, beyond a reasonable doubt, that the defendant is guilty of some grade of offense less .than murder, but you have a reasonable doubt as to whether the offense, if any, is manslaughter or aggravated assault, thep you must give the defendant the benefit of the doubt, and in such case, if you find him guilty,it could not be of a higher grade than , aggravated assault.” The charge of the court was correct. Appellant requested no special charge on the subject and made no objection to it at the time it was given. If it did hot submit the question as fully as appellant now claims, it was his duty to request at the time additional instructions submitting such matter for a finding. His claim that there was testimony which might have tended to show that Fax Williams, and' not appellant, killed the deceased, and that this should have been submitted to the jury by the court’s charge, is fully met by the fact that the court in the charge, not only expressly required the jury to believe that appellant committed the homicide, but that no other person did so. Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451.

Our statute (P. C. art. 1148) prescribes: “If an injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder, according to the facts of the case.” Again: “Where the circumstances attending a homicide show an evil or cruel disposition, or that it was the design of the person offending to kill, he is deemed guilty of mur-, der or manslaughter, according to the other facts of the case, though the instrument or means used may not in their nature be such as to produce death ordinarily.” P. C. art, 1150. Upon a careful and thorough study of the facts of this case, we are of the opinion that aggravated assault was not in the case and should not have been submitted. But the court did submit it, and, of course, that was to the appellant’s advantage and not to his disadvantage. So that appellant’s complaint of the court’s charge on aggravated assault, even if correct, would not present reversible error. But his complaints of the charge on this point are met by the charge itself, taken as a whole. Among his complaints is one that the court did not submit P. C. art. 1147. An inspection of the charge shows that the court did give this article precisely, in his charge to the jury. And, as shown above, he told the jury correctly what was a deadly weapon.

Appellant’s pistol with which the killing was done, used as a club, was identified, admitted to be his, and introduced before the jury. They had it, saw it, and examined it, and under the circumstances they clearly could tell whether or not, from the manner of its use, that it was a deadly weapon, and unquestionably the cruel manner of its ¡use showed appellant’s intention to kill, as he did. While denying the killing, he did hot pretend to testify that he did not intend to kill. Luttrell v. State, 157 S. W. 162; Crutchfield v. State, 152 S. W. 1053; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Branch’s Crim. Law, § 516, and cases cited by him.

The judgment will be affirmed.


author: PRENDERGAST, P. J.

text:
    GORRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.)
    1. Ckiminal Law (§ 1090) — Appeal—Denial op Continuance — Bill op Exceptions.
    Where an order overruling a motion for continuance is not presented by a bill of exceptions, it cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, .2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§§ 949, 956) — New Trial —Grounds—Misconduct op Jury — Proop.
    A new trial for alleged misconduct of the jury in commenting on defendant’s failure to testify was properly denied, where the motion was not sworn to, and was not supported by affidavit or other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. «¡§ 2337. 2339-2344, 2373-2391; Dec. Dig. §§ 949, 956.]
    3. Criminal Law (§ 655) — Trial—Conduct op Judge.
    That the judge during the trial vacated the bench, walked down to the state’s attorneys, and talked with them in the presence of the jury, but not in their hearing, was not error.
    [Ed. Note. — For other cases, see Criminal »Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    4. Larceny (§ 50) — Stolen Property — Bringing into State — Evidence.
    In a prosecution for bringing stolen cattle into the state from Oklahoma and selling the same to L. for beef, it appearing that L. gave defendant a check for $50 with knowledge that the cattle had been stolen, evidence of the transaction between defendant and witness, a banker, who cashed the check, concerning what occurred at the time was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    5. Larceny (§ 70) — Bringing Stolen Property into State.
    In a prosecution for bringing stolen cattle from Oklahoma into Texas and selling them, the court properly charged the jury as to the law of theft of both Oklahoma and Texas.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. § 70.]
    6. Larceny (§ 40) — Indictment—Evidence-Variance.
    Where an indictment for bringing stolen cattle into the state and selling them properly alleged the theft of one head of cattle, and the court’s charge followed the indictment, it was not material that the evidence showed the theft of more than one head.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102-126. 160; Dec. Dig. § 40.]
    7. Criminal Law (§ 792) — Instructions — Accomplice.
    In a prosecution for bringing stolen cattle into the state, an instruction that, if the jury believed that L. committed the offense alleged, if it was committed, then, before they could convict defendant, they must believe from the evidence beyond a reasonable doubt that he
    was present at the time and knew of the unlawful acts and intentions of L., and, with such knowledge, aided him therein, and, unless they so believed, they should acquit accused, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1S18-1820; Dec. Dig, § 792.] . ,
    8. Criminal Law (§ 829) — Trial—Request to Charge.
    The court may properly refuse requests to charge which have been covered in the court’s main charge. :
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminal Law (§ 1122) — Appeal — Instructions — Record.
    Refusal to give a request to charge limiting the jury’s consideration of certain evidence cannot be reviewed, where the evidence sought to be limited is not given in the charge, nor in connection therewith, and the court could not tell from the record what was intended thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    Appeal from District Court, Grayson County; John C. Wall, Special Judge.
    Dot Gorrell was convicted of bringing stolen property into the state, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

The appellant was indicted, tried, and convicted under article 1431, P. C., for bringing into this state property stolen in Oklahoma, and his punishment fixed at two years in the penitentiary. The indictment follows the statute, is in accordance therewith, and is also in accordance with the form laid down by Judge White in section 1660 of his Ann. P. C., and is sufficient.

One Joe Lynch was a principal with appellant in the commission of the offense. He testified fully in the case, and clearly made out the case against appellant. The court charged that he whs an accomplice, and that he had to be corroborated as required by the statute. The testimony, both positive and circumstantial, was amply sufficient to corroborate Lynch. The court did not err in refusing appellant's peremptory charge to find him not guilty.

The testimony as a whole, both positive and circumstantial, was amply sufficient to show that appellant and said Lynch, acting together, stole several head of cattle from the owner, Mr. Henry, in Oklahoma, near the Red river, late in the evening or early part of the night of April 29, 1913, and drove several head of said stolen cattle from Oklahoma to near Denison, in Grayson county, Tex., and that they sold them there to a man by the name of Lamb, who slaughtered them, and that they each got part of the pay therefor. Among these cattle was one noted cow, thoroughly and completely identified, and her hide, after the slaughter, found at Lamb’s fully and completely identified as the hide of said cow and as the property of said Henry, stolen from him on the evening or night of April 29th.

Appellant, in his motion for new trial, by many grounds thereof, complains of the introduction of certain testimony over his objections, and to the court overruling his motion for a continuance. There is no bill in the record to the overruling of his motion for continuance and to many of his said complaints. None of these grounds can therefore be reviewed by this court. We will discuss such of his bills as are in the record and, made grounds of his motion for new trial.

Appellant, in one ground, complains that the jury, while deliberating on their verdict, commented upon and discussed his failure to testify. The motion is not- sworn to, nor is it in any other way supported by affidavit or any testimony, and, of course, the court did not err in not granting a new trial on that account Hicks v. State, 166 S. W. -, recently decided, but not yet reported.

When the time for the regular term of the court at which appellant was tried came on, Judge Pearson was absent and unable to serve on account of sickness. Thereupon the bar duly and regularly elected Judge John O. Wall special judge, who accepted, qualified and held that term of court, and was the presiding judge on the trial of appellant. By one bill appellant complains that, while the trial was proceeding and one of the witnesses was on the stand, Judge Wall vacated the bench and walked down to where the state’s attorneys were engaged in the trial, and, in the presence of jury, for several minutes, talked to the state’s counsel. Appellant objected to this. The court, in approving the bill, qualified it by stating: “That nothing spoken of between the court and attorney for the state was so spoken that he could possibly have been heard by the jury; that it in no way or manner related to how state’s attorney should frame any question to make evidence admissible, and was not intended, in any manner, to impress the jury, unless the jury could go to such a conclusion merely from the fact that the court had a conversation with attorneys for the state.” This showed no error whatever.

By another bill appellant shows that the state proved without objection that after the one head of cattle was stolen from said Henry in Oklahoma by appellant and said Lynch, that said Lynch testified that he and appellant were acting/together and stole the said one head and 11 others in Oklahoma, and on the same night brought them into Grayson, county, Tex., and delivered them to the slaughterhouse of Lamb near Denison, and each received in part payment of said cattle a check for $50 from said Lamb, said Lamb knowing that said cattle had been stolen ; that, while Mr. Wheeler was being examined by the state, he testified, without any objection by appellant, that he had heard of said Henry having cattle stolen from him at the location from which these were stolen, and that he saw defendant at the witness’ bank in Kingston, Okl., and had a transaction with him, but did not remember whether it was before or after he heard of the said theft; that it might have been a few days before or a few days afterwards; that the cashier of the bank went away on the morning of April 30th, and returned the 8th or 9th of May, 1913, and that it was during his absence that the transaction occurred; that he had no independent recollection of the date of the check, but that the record of the bank showed that it was dated April 20, 1913. Thereupon the state asked him to tell what the transaction between him and appellant was. To which appellant excepted, because it was irrelevant, immaterial, and hearsay, and that the instrument about which he was asked was dated April 20th, when the transaction between the defendant and Lamb, shown by the testimony, occurred on the 30th of April; that the instrument itself would be the best evidence of the contents, and the testimony was highly prejudicial to him. The court overruled his objections, and the witness testified that he cashed a check payable to said Gorrell, drawn on the First State Bank of Denison; that he paid the money to defendant; that he did not have the check in his possession; it was sent to the National Bank of Denison, and the check was for $50 and signed by Lamb. The state was not attempting to prove the contents of the check. It had already been proven by other testimony not objected to by appellant. Of course, the transaction between the banker and appellant and the time it occurred and the fact that the banker paid appellant the $50 on the check, and, in fact, the whole transaction between them was clearly admissible.

The state proved, without contradiction, what the laws of the state of Oklahoma were, both as to theft generally and theft of cattle. The appellant admitted that the statute of Oklahoma on theft generally was as proven up and introduced by the state, and that the statute of the theft of cattle proven up and introduced was the identical law in force, except that the minimum punishment of two years’ confinement in the penitentiary had been changed, so that the law then was one year’s, instead of two, confinement in the penitentiary. The court did not err in telling the jury in his charge what this law of Oklahoma was, nor did the court err in telling the jury what was theft under the laws of Texas. It was necessary for him to do so in order to charge the law to the jury.

In submitting the case to the jury for a finding, the court properly required the jury to believe beyond a reasonable doubt every essential fact that was necessary to be found in order to show the guilt of the appellant before they could convict him, and, in case they did so find all such facts against him beyond a reasonable doubt, then to find Mm guilty and assess the proper punishment therefor. It was of course, necessary for the court to do this to properly submit the case to the jury for a finding.

Though the indictment properly alleged the theft of one head of cattle and the charge of the court followed the indictment, it would make no difference that the evidence not only ■showed the theft of one head, but more than •one head. This would be no variance.

In charging the law of an accomplice and applying it to the facts of tMs case, the court literally followed the statute, and, of course, it was sufficient. The charge of the court ■fully embraced everything in substance, if not literally, in the charge requested by appellant, and there was no error in the court’s refusing his special charge on the subject.

The court did not err in charging, but correctly charged, in effect, that if they believed said Lynch committed the offense alleged, if any was committed, that, before they could convict appellant, they must believe from the evidence, beyond a reasonable doubt, that he was present at the time said acts were committed, and knew of said unlawful acts and intention of Lynch, and, with such knowledge, aided him in such matters, and, unless they so believed, to acqMt appellant. Said charge was a correct enunciation of the law applicable to this case.

The court gave an apt, full, and correct charge submitting every issue that was raised properly to the jury for a finding, and none of appellant’s objections thereto are well taken.

Wherever necessary or proper to be given,, the court in the main charge covered every point upon which appellant requested speciál charges. The indictment, having charged the theft of one head of cattle, it was neither necessary nor proper for the court to require the state to elect what particular one head of cattle was meant when the proof showed that not only one, but more than one were stolen and brought into Grayson county. This would in no way be a variance’, nor require an election.

When the state introduced said witness Lynch, the appellant sought to attack ■him by his own testimony, and other testimony also that he was a morphine fiend and incompetent as a witness. In addition to his testimony on tMs subject, Lynch testified fully about the whole case. Appellant himself had Lynch to give a good deal of this testimony. Much of his material testimony was of things not occurring in the immediate presence of appellant. The appellant requested and the court refused to give this charge: “Certain testimony has been admitted in evidence before you in reference to statements made by the witness Joe Lynch in the absence of the defendant Dot Gorrell. You are instructed that you can only consider said testimony in passing upon the mental condition of the witness Joe Lynch, and you must not consider said statements for any other purposes.” What this testimony is that this charge had reference to is in no way given in the charge, nor in connection therewith, nor can we tell from the record what was intended thereby. As the record presents the matter, no error is shown in the court’s refusal to give tMs charge.

The record showing no reversible error, the judgment will be affirmed.


author: HARPER, J.

text:
    SANDS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Animals (§ 45) — Poisoning Animals— Ckiminal Prosecution — Evidence.
    In a prosecution for poisoning stock with intent to injure the owner, evidence, though circumstantial, held sufficient to warrant a conviction.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 123-140, 191, 192; Dec. Dig. § 45.*]
    2. Criminal Law (§ 1169) — Admission of Evidence — Harmless Error.
    In a prosecution for the poisoning of animals with-arsenic, where the evidence was wholly circumstantial, the admission of evidence that, after the animals were found dead, defendant ordered some arsenic, was not reversible error; there being evidence that defendant had arsenic on hand at the time the stock were killed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §.§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    3. Indictment and Information (§ 181)— Variance Between Allegations and Proof.
    In a prosecution for unlawfully poisoning animals with intent to injure the owner, the fact that the information charged that 9 head of mules and 4 head of mares were poisoned, and the evidence showed that only 12 carcasses were found, with one missing, was immaterial, since the gist of the offense was willfully poisoning stock with intent to injure the owner, the number being immaterial.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 557-561; Dec. Dig. § 181.]
    Appeal from Shackelford. County Court; J. A. King, Judge.
    F. Sands was convicted of poisoning animals, and he appeals.
    Affirmed.
    B. F. Reynolds, of Throckmorton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

The information in this case charged appellant with unlawfully poisoning 9 head of mules, and 4 head of mares, the property of J. F. Sedwick, with the intent to injure the owner of the stock. He was adjudged guilty, and Ms punishment assessed at a fine of $200.

The evidence is entirely circumstantial, and appellant earnestly insists that it is not of that strength and cogency to support the verdict We have studied the record diligently, and are of the opinion that the court committed no error in overruling the motion for a new trial. That the stock was poisoned is admitted in the record, and they were poisoned by the use of arsenic is also admitted; that appellant bore intense ill will towards the owner of the stock is shown beyond the peradventure of a doubt, thus furnishing evidence of motive. He lived in a house adjoining Mr. Sedwick’s pasture; he passed through this pasture in going from his house to his pasture. At the place where the stock is shown to have been poisoned, there was found some sulphur with a mixture in it, looking like salt or some other substance in it, that the mules and mares had licked, causing their death. At appellant’s place was found a “bucket containing sulphur and some white mixture”; this mixture being of the same character and kind found where the stock had been poisoned. There was also found at appellant’s house several pounds of arsenic, and the stock had died from arsenic poisoning. On the ground where the stock had been found dead, tracks were found leading towards appellant’s house. As the mixture shown to have killed the stock was of the same character and kind found at appellant’s house, we are of opinion that the facts and circumstances in the case are sufficient to authorize a conviction. After the stock was found dead, when talking to a neighbor, in reply to a remark “that it was hard to be charged with poisoning a neighbor’s mules,” said, “Well, I don’t know; John F. Sedwick is a d-ned rascal, and the only way to reach some people is through their pocketbook.”

It was proven that, after the mules were found dead, appellant ordered a quantity of arsenic, such as a man would not ordinarily have any use for. This testimony was objected to, as it occurred after the commission of the offense charged. The testimony further showed that this arsenic was ordered before his arrest charging him with this offense, and that after he was arrested he objected to receiving it. The court in his qualification to this bill shows that appellant had arsenic on hand at the time the stock were killed, and was keeping it in quantities not kept by the ordinary man. As this matter is presented to us, we do not think it presents reversible error, as this was a case depending wholly upon circumstantial evidence.

The only other objection we deem necessary to notice is that the information charges that “9 head of mules and 4 head of mares were poisoned,” while the evidence shows that only “12 carcasses were found and one missing.” It is contended this presents a variance fatal to the conviction. The offense with which appellant was charged is willfully poisoning -stock with intent to injure the owner, and the number actually poisoned we think immaterial,- if áñy’ stock belonging to Sedwick were poisoned by appellant willfully. ■ ; ■

The judgment is affirmed.


text:
    LAWS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, March 18, 1914.)
    Criminal Law (§ 1092) — Bill ox Exceptions — Time ox Filing — Diligence.
    During the following week after court adjourned on August 16th, accused prepared a bill of exceptions and went to the county attorney’s office several times to submit the bill to him, and learned that he was in another city, and then took the papers to the county judge who declined to act upon them until the county attorney had seen them. On the 19th day after adjournment the county attorney claimed that he was then too busy to pass upon the bill, but would do so later. Accused then left the papers with the county attorney and did not again present them to the judge, and they were not presented to the judge until September 12th, 27 days after adjournment, when they were signed and filed. Held, that accused did not show such, diligence in having the bill of exceptions approved and filed as required by statute and the law, so that it cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    Appeal from Ft. Bend County Court; W. I. McFarlane, Judge.
    Mack Laws was convicted of aggravated assault, and appeals.
    Affirmed.
    J. C. Florea, of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

From a conviction of aggravated assault with a fine of $200, appellant prosecutes this appeal.

There is in the record what purports to be a statement of facts and some bills of exceptions, but neither of them show to have been filed in the lower court The Assistant Attorney General on that account makes the point that they cannot be considered, which is correct. There is no question raised by the motion for new trial which can be reviewed without a statement of facts or bills of exceptions.

The judgment is therefore affirmed.

On Motion for Rehearing.

At a former day of this term this cause was affirmed, as what purported to be a statement of facts and bills of exception were not filed in the court below and could not be considered.

Appellant has made a motion for rehearing and accompanies it with some affidavits seeking to have his bills of exceptions and statement of facts considered. These affidavits show, in substance, that the following week after the court adjourned on August 16, 1913, he prepared a statement of facts and bills of exceptions and went to the county attorney’s office to submit them to him, made several trips for that purpose, but found on inquiry that the county attorney was absent in either Houston or Galveston. The affidavits do not in any way show that he attempted to communicate with him at either of these points, nor do the affidavits show when he returned. When he could not find the county attorney, he took the papers to the county judge and asked him to act upon them, but the county judge declined to do so until the county attorney had passed on them. It is further shown that on the 19th day after adjournment of tlie court, he did see the county attorney, and asked him to then pass upon his statement of facts and bills of exceptions, but the county attorney claimed that he was busy and could not do it that day, but would take them up later. He at that time left these papers with the county attorney. He did not then again present them to the county judge, and they were not presented to the county judge for any action again until September 12, 1913. It appears that they were on that day, and not before, signed, agreed to, and filed. This was on the 27 th day after the adjournment of court. Under the uniform holding of this court, this does not show such diligence as is required by the statute and the decisions. Under the law we cannot consider these papers. Jones v. State, 163 S. W. 75; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 25f9.; Gowan v. State, 164 S. W. 6, recently decided, but not yet officially reported; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; Durham v. State, 155 S. W. 222. It is needless to cite the many other cases to the same effect.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    KIRLIIN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Homicide (§ 166) — Evidence—Motive.
    Where, at the time of a homicide, defendant was unaware of the issuance of a marriage license authorizing the marriage of' deceased and defendant’s divorced wife, evidence of the issuance of the license was not admissible against defendant as showing motive.
    [Ed. Note. — For other cases,, see Homicide, Cent'.' Dig. §§ 320-331; Dec. Dig. § 166.]
    ¿. Witnesses (§ 406) — Contradiction of Witness.
    Where, in a homicide case, a witness had testified that deceased had made a threat against defendant and stating that he then had in his pocket a marriage license to marry defendant’s '.divorced wife, evidence of the date of the issuance of the license was admissible as tending to discredit the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; E>ec. Dig. § 406.]
    3. Homicide' (§ 309) — Instructions—Manslaughter.
    Where, in a charge on manslaughter, the court undertakes to enumerate the' circumstances that would conduce to show adequate cause and consequent passion, he should enumerate all the circumstances. . ...
    [Ed. Note. — For other cases,. see Homicide, Cent.^ Dig. §§ 649, 650, 652-655; Dec. Dig. ]
    4. Homicide (§ 309) — Instructions—Manslaughter.
    In instructing upon manslaughter, it is sufficient usually to charge in a general way that the jury should look to all the facts and circumstances occurring before and at the time of the homicide that were explanatory of the condition of defendant’s mind, or tend to throw light upon its condition at the time of the killing.
    [Ed. Note. — For- other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Homicide (§ 300) — Instetjctions — Self-Defense.
    Where, in a homicide case, the evidence was that deceased was standing on a sidewalk in a city and defendant approached and fired one shot, the contention of the state being that defendant walked up to deceased and shot him, and that of defendant being that, as he approached, deceased ran his hand in his pocket, it was error to instruct upon the cessation of the right of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    6. Homicide (§ 300) — Instructions—S&lf-Defense.
    In a homicide case, an instruction that it was the duty of the jury to determine from the evidence what was the standpoint of- defendant and in what light he did, in fact, view the situation, was erroneous, since the criterion of self-defense in apparent danger is always as it appeared to defendant at the time he acted, and not as viewed by the jury in the light of subsequent events.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    7. Homicide (§ 190) — Evidence—Uncommu-nioated Threats.
    Where, in a homicide case, the issue was as to who began the difficulty, uncommunicat-ed threats made by deceased were admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Frank Kirklin was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes"

   DAVIDSON, J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 10 years’ confinement in the penitentiary.

He objected to the introduction of the date of the marriage license which the clerk issued authorizing the marriage of the deceased and the divorced wife of appellant. This license was dated 12th o.f February. The witness Mason testified to uncommnnieated threats made by deceased in regard to appellant, which threats, he says, occurred two or three days prior to the homicide. The homicide occurred on the 13th of February, and license was issued on the 12th of February. Appellant was unaware of the issuance of the license at the time of the homicide. It therefore could not be introduced against him on the, question of motive. If it was introduci-ble at all, it was introducible for the purpose of attacking the credibility of the witness Mason. The witness Mason testified that deceased, when he made the threats with reference to appellant, stated that he (Slayton) then had in his pocket a marriage license to marry the widow of appellant. The court limited this testimony to the credibility of Mason. For that purpose we are of opinion it was introducible. Mason had testified to the statement of deceased that he- had a marriage license to marry the widow of appellant, some days prior to the issuance of the license. This would tend to impress the jury that Mason may have fabricated this testimony with reference to threats and the statement of the deceased. We are of opinion, for that purpose, that the date of the marriage license was introducible, and the court was correct in so limiting the testimony, and in fact would have been in error had he refused to do so. It could not be used against defendant, because it would be supplying a motive for the killing of the deceased, which could not be imputed because appellant was not aware of the issuance of the license. The testimony also shows, in this connection, that appellant was engaged to remarry his divorced wife at the time of the killing, and that there was also an engagement between her and Slayton to marry. Appellant was aware of the fact that there was a contemplated marriage between deceased (Slayton) and his wife, for he had been so informed by his divorced wife’s mother; but he was not aware of the fact that the license had been issued.

There are quite a lot of exceptions to the court’s charge on manslaughter. These, we think, are not of sufficient importance to require a reversal of the judgment. Upon another trial, however, if the court undertakes to enumerate the circumstances that would conduce to show adequate cause and consequent passion, he should enumerate all the circumstances. While it may not be necessary to single out and collate these circumstances, yet, where the court undertakes to do so, none of them must be omitted. The charge in this respect is subject to criticism, for the court informed the jury in this respect they could look to the previous acts and conduct of the deceased and the demeanor at the time of the homicide, and other circumstances, “such as communicated threats.” Uncommunicated threats were in the case also. While uncommunicated threats would not be admissible to show the condition . of defendant’s mind, so far as manslaughter is concerned, yet it might have the effect of inducing the jury to believe deceased was moving towards defendant at the time of the shooting for the purpose of inflicting personal injury upon him, or to execute his threats. It will be sufficient, usually, to charge, in a general way, that the jury should look to all the facts and circumstances occurring before and at the time that were explanatory of the condition of defendant’s, mind, or tend to throw light upon its condition at the time of the killing.

The charge of the court is sharply criticised with reference to self-defense. In the charge, among other things, the court authorizes the shooting from the standpoint of apparent danger, and, without quoting the full charge in this connection, he closes the paragraph by stating: “In this connection, you are instructed that one who is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant, but has the right to stand his ground, and even to advance on his adversary and continue to act in his self-defense, until the danger or apparent danger is past, and to repel the unlawful attack of his assailant with whatever force may reasonably appear to him at the time to be necessary; but when it appears to the defendant that such danger or apparent danger, if any, ceases, then such right ceases.” There is nothing in this case to call for a charge on the cessation of danger. The facts show that deceased was standing on the sidewalk at the corner of Ninth and Main streets in the city of Ft. Worth, and appellant approached and killed the deceased, firing one shot. The deceased seemed to have died almost immediately. The state’s theory was that appellant walked across the street with a pistol in his hand, and walked up to the man and killed him. The defendant’s theory is that he did not have his pistol in his hand; but, having been warned of the threats of the deceased, he had armed himself anticipating he might meet deceased at any time, and he would be ready to protect his life or his body from serious injury, and came rather unexpectedly upon the deceased and his divorced wife standing together, and as he approached deceased turned upon him with his hand in his overcoat pocket, where witnesses testified he carried his pistol, and began raising his hand from his pocket as if to draw a pistol, and as he made the second step towards appellant he fired one shot. So it will be seen from no standpoint of this evidence was the charge quoted authorized or required to be given. There was but one shot fired, which proved fatal, and the right of self-defense arose under those circumstances. There was no issue or question raised by the facts at any point calling for a charge on cessation of the right of self-defense, and there was no act on the part of defendant in that connection after this right ceased. Appellant did not undertake to shoot except the one shot.

There is another criticism of the charge which is as follows: “It is your duty to determine from the evidence what was the standpoint of the defendant and in what light he did, in fact, view the situation.” Just preceding this quotation, this language is also found: “In determining whether the defendant acted in his own necessary self-defense, it is immaterial whether the danger, tif any, was real, whether in fact it existed, "or whether it was merely apparent, and you will look to the evidence and consider the transaction from what you believe to have been the standpoint of the defendant and from no other standpoint.” This charge was condemned in Simmons v. State, 55 Tex. Cr. R. 449, 117 S. W. 141; the opinion having been written by Judge Ramsey. This charge ought not to have been given. The jury must not look at this in the light of subsequent events, but as it appeared to defendant at the time. The criterion of self-defense in apparent danger is always as it appeared to defendant at the time he acted, not as viewed by the jury in the light of subsequent events. If the defendant believed at the time that his life was in danger and so acted, he would have the benefit of self-defense. It is not the criterion that the jury should settle the viewpoint of the defendant as developed on the trial, but it must be viewed by the jury as the defendant himself viewed it at the time of the homicide.

There is another matter raised with reference to the self-defense theory. . It is not the purpose of this opinion to go into the charge given by the court and requested charges by appellant and refused by the court, critically to discuss this question. It will be treated in a general way. The evidence discloses serious threats made by deceased against appellant, involving his life and bodily injury. One witness testified deceased said he would kill appellant within 24. hours. It is also in evidence that the deceased went armed and carried his pistol in the right-hand pocket of his overcoat and exhibited it in connection with his threats. There is evidence, also of uncommunieated threats. Enough has been stated to show the two theories of the state and defendant with reference to the immediate facts of the homicide. Taking the self-defense theory from the defendant’s standpoint, the deceased, as soon as he discovered him approaching, had started towards appellant with his hand in his right-hand overcoat pocket, where it was shown he usually carried his pistol, and stepped towards the appellant when appellant fired one shot. Under the defendant’s theory, the deceased was the aggressor. Under the state’s theory, this was not true. So the theories are exactly in contradiction, and flatly so. Appellant’s evidence, and he is sustained by one or two eyewitnesses, placed the deceased as the aggressor. .One or two witnesses testified for the state that there was no demonstration made by the deceased ; that he was standing close to the corner of the sidewalk, or on the sidewalk, talking to the divorced wife of appellant, when appellant approached him, with a pistol in his hand, and shot him. Now, under this condition, the court should have given a charge with reference to uncommunicated threats. Uncommunicated threats are always admissible to determine, among other things, where that is an issue in the ease, who began the difficulty, who was the aggressive party. Under appellant’s theory, the deceased was the aggressive party and started towards him when he (defendant) had no intention of shooting him. The uncommunicated threats would tend to solve the question as to who' was the aggressive party, the defendant or the deceased. This is raised by the appellant, and error is assigned upon the failure of the court to charge this, and to give the requested instructions, which also suggested this phase of the law. We think this is error. It is unnecessary to cite the authorities, as they are quite numerous.

The judgment is reversed, and the cause remanded.


text:
    FATE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Criminal Law (§ 651) — View and Inspection.
    ‘ In a prosecution for rape, the court properly refused to send the jury, at defendant’s request, to inspect the ground where the offense was alleged to have occurred.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1516-1519; Dec. Dig. § 651.]
    2. Criminal Law (§ 922) — Objections to Instructions — 1Time eok Objection.
    ■ It is too late to complain for the first time of the instructions in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    3. Cbiminal Law (§ 884) — Verdict—Extent of Punishment.
    Where a verdict fixes the imprisonment within the period fixed by law as punishment for the offense, it is not excessive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.]
    4. Criminal Law (§ 991) — Indeterminate Sentence.
    Where, in a prosecution for rape, the jury assessed the punishment at 99 years, the court should have, under the indeterminate sentence law, sentenced defendant for not' less than 5 nor more than 99 years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig/ § 991.]
    Appeal from District Court, Graysou County; W. J. Mathis, Judge.
    Green Fate was convicted of rape, and he appeals.
    Affirmed.

      C. E. Lane, Asst.Atty. Gen., for the State.

      For other'cases see same topic and section NUMBER in Dec. Dig. ¿ Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of rape, and Ms punishment assessed at 99 years’ confinement in the state penitentiary.

The appellant complains that the court erred in not sending the jury, at Ms request, to inspect the ground where the offense is alleged to have occurred. The court correctly refused the request. A jury cannot be permitted to travel around over the country, receiving evidence by sight alone, and which they might discuss without the knowledge of appellant.

The court’s charge fully and fairly presented every issue in the case, and it was not necessary to give any of the special charges. Some of those requested would have been on the weight to be given the testimony, and, of course, these ought to'have been refused, while those that presented the law are fully covered by the court’s charge. There was no objection filed to the court’s charge prior to the time it was read to the jury, and under our law now it is too late to complain of the charge as given for the first time in the motion for a new trial. However, had the objections presented in the motion for new trial been made at the proper time, no error would have been presented.

Oomplaint is made that the verdict is excessive. Whenever the verdict is within the period of time fixed by law as punishment for the offense, it is not excessive. However, in pronouncing sentence, under the indeterminate sentence law (Acts 33d Leg. c. 132, amended by Acts 33d Leg. [1st Called Sess.] c. 5), the court should have sentenced appellant for a term of years not less than 5 nor moré than 99 years, and the sentence is here now reformed and corrected, so that it shall so read.

The judgment is affirmed.