author: PRENDERGAST, P. J.

text:
    JONES v. STATE.
    (No. 3839.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Ckiminal Law <&wkey;116Q — Appeal—Review —Questions op Fact.
    Where the evidence of accused and his witnesses, if believed, would have authorized an acquittal, whether it should be believed was for the jury and the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3084; Dec. Dig. <&wkey;>1160.]
    2. Homicide &wkey;>250 — Evidence—Weight and Suppiciency.
    On the trial of a negro for killing a boy who was living with him, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <&wkey;>250.] ■
    3. Witnesses <&wkey;374 — Impeachment? op De-pendant’s Wipe.
    Where, on a trial for homicide, defendant’s wife gave material testimony in his favor, testifying, among other things, that defendant was at home at the time of the alleged homicide, she could be impeached by showing that she had offered a witness for the state, who roomed with defendant, $10 to testify that defendant was at home at the time of the alleged homicide.
    • [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. <&wkey;374.]
    Appeal from District Court, Eayor County; Jo. A. P. Dickson, Judge.
    S. M. Jones was convicted of murder, and he appeals.
    Affirmed.
    Glasgow & Kenan, of Seymour, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 30 years in the penitentiary.

The most serious question is whether or not the evidence was sufficient to sustain the verdict. After a careful reading and study of the evidence more than once, we have reached the conclusion that it was sufficient to sustain the verdict, and that this court would not be justified in reversing the case on that ground. The evidence of the appellant and his witnesses, if it had been believed by the jury, would have authorized his acquittal. Evidently the jury did not believe it. That was for the jury and the lower court.

We will state some of the salient features of the testimony.

Appellant is a negro. Joe Washington, the deceased, was a negro boy about 14 or 15 years old at the time of his death. He was small for his age, weighing only about 80 pounds, and was not at all bright. Formerly deceased and his sister, Elsie, just younger than he, and a brother, still younger, lived with their mother at Granger, in Williamson county. Elsie testified that at that time deceased was sound and well, but was sick just before he was killed, caused by appellant’s treatment; that appellant and his wife took them and ran away with them from Granger. Appellant claimed that he took these negro children to take care of them, because their mother had abandoned them. At any rate, he landed in Western Texas with them, and they all picked cotton, finally arriving in Baylor county, Tex. The testimony is amply sufficient to show that after appellant took these children to Western Texas he treated deceased especially most cruelly and inhumanely; that he whipped him unmercifully, on one occasion stripping and tying him, and whipping his naked body with a black bull snake whip, at other times whipping him over his head and face and shoulders with a rope, on one occasion bruising his face and around one of his eyes so that eye was practically closed from the effects of the beating and his nose lacerated as if burned by drawing a rope across it; that the boy was thinly clad, barefooted, and driven from the house by appellant into the cold, from which he greatly suffered. The evidence is sufficient to show further that appellant, after the cotton-picking season, desired to get rid of the boy. His death occur-1 red the latter part of February, 1915. Dan St. Olair, for whom appellant with said, children picked cotton, testified that he had seen appellant mistieat Joe at that time, and had seen him run him out of the house and keep him out on cold frosty mornings; that one morning Joe came to his house with his face swollen up, one eye almost swollen together, and he had the print of a rope across his nose, and the hide peeled off and stripes across his cheek; the bruise on his nose looked like it had been made by a rope; that he asked appellant about it, and he said he had whipped him with a rope. This witness also testified that:

Just a few days before the dead body of deceased was found “I hoard the defendant talking to some other negro about Joe Washington, in which the defendant said that he would bet $10 or $100 that he would not have this negro boy, Joe, four days from that time.”

T. J. North testified that some time prior to the death of deceased appellant had a conversation with him, in which he told him that Joe was liable to fall off of the bridge down here, or he might attempt to go back to the country and in crossing one of those bridges fall off and kill himself.

Elsie testified that on the evening before the body of the deceased was found next morning she heard appellant’s wife tell him that he had better not kill that boy, to which he replied: “Oh, kid, I have a good way to get out of it.” Elsie further testified that she slept on a pallet in the same room where appellant and his wife slept on a bed; that the night deceased was killed appellant was away from the house and stayed out some time; that he came back late at night long towards midnight and left the house again. Joe was shown to have been fastened up in a room in appellant’s house to himself, and that he slept on a pallet therein. Elsie said that before appellant left the house the second time that night she saw him go into the room where Joe slept and call him, and Joe began crying, and the effect of her testimony was that appellant left the house with Joe at that time; that appellant returned in about an hour; that, when he returned, she asked him where her brother was, and he said that he was in his room; that she began crying, and went into her brother’s room to see if he was there, and that he was not there; that she came back and so told the defendant, to which he replied that he was. and told her that, if she did not hush crying, he would shoot her “damned brains out.”

J. B. Self, a deputy sheriff of Baylor county, testified that he saw and recognized appellant that night with a crippled negro boy, who walked on his heel following him, going in the direction of the bridge across the Brazos, where the body of deceased was found early next morning; that he and others, after the body was found, tracked appellant and the boy going towards said bridge; that they found appellant’s track, fitted his shoes into it, they fitting exactly, and that the tracks led directly towards said bridge; that the tracks of a crippled boy followed appellant’s tracks,' the boy walking on his heel on cue foot. It was unquestionably shown that the deceased was crippled in one foot and walked on his heel, barefooted. These tracks led directly towards said bridge, and were traced through the fence of the right of way of the railroad and within a short distance of the railroad bridge, where the deceased’s body was found next morning. They could not trace the tracks after they got onto the right of way and railroad,' because of the condition of the ground, cinders, grass, etc. The evidence practically demonstrates that these tracks were those of the appellant and the deceased made the night before the body of the dead boy was found next morning.

Tim Wall testified that about midnight of the night on which the body of the dead boy was found the next morning he crossed the bridge and heard a noise of screaming first, and then groans under the bridge; he made no investigation at the time; that before he got to the bridge, in about a quarter of a mile of it, he met a man walking fast coming from towards the bridge; that he was about the size and build of appellant. Neither spoke to the other. He could not say that the man he met was appellant, and, as the night was dark, he could not tell whether it was a white man or a negro. The deceased was found under the bridge early the next morning dead.

The justice of the peace who held an inquest over him that morning at about 8 o’clock, among other things, testified that the deceased had a bruised place on his forehead, some sand was sticking to his scalp, and there appeared to be blood on the surface. The ground where the body was found was shown to have been hard packed sand. Bowman, the justice of the peace, further testified that, when he found the body, it was lying on his face, his head lying across a mesquite root. The nose rested on the root, which left an impression when they picked him up. No tracks could be found at or near the body, as testified by the witnesses.

The only impressions at the place where the body was found were marks the deceased had made with his feet and hands, making almost a circle where he had scrambled like he was trying to get up. There was an impression in the ground where his head had struck the ground. The bridge over where the body was found was shown to have been about 36 feet high. One witness testified that the bridge at that place was 36 feet and 5 inches high by actual measurement from the ground where the dead boy was found. Pan Tan testified that he roomed at appellant’s house, and got home that night about 12 o’clock to go to bed; that to get to his room he had to pass through that where appellant and his wife and said Elsie slept; that, when he passed through the room that night appellant was not in there. In rebuttal of appellant’s wife he testified that appellant’s wife offered him $10 if he would swear that appellant was at home on that occasion. The jury and trial judge saw and heard the witnesses testify, and we cannot hold that the evidence was insufficient to sustain the verdict.

Appellant introduced his wife, who gave material testimony in his favor, among other things, testifying that appellant was at home in bed with her at the time of the alleged homicide. Upon cross-examination the state was permitted to ask her if she did not offer the witness Pan Tan $10 to testify that appellant was at home in bed at the time of the alleged homicide, which she denied. The state then introduced said witness Pan Tan in rebuttal, who testified that she did on said occasion offer him $10 to testify that appellant was at home in bed with her at the time of the homicide. Appellant objected to the testimony of this witness Pan Tan, because he was not shown to be present at the time, and that it was prejudicial to his rights. The court overruled his objections, and charged the jury that' they could consider said testimony solely for the purpose of testing or affecting the credibility of annellant’s wife if it did so affect it; and then appellant further excepted to said testimony as limited by the court, for the reason that the state cannot impeach the wife of defendant on a matter that she could not. testify to. This bill shows no reversible error. This testimony was admitted solely for the impeachment of the wife. She clearly could be so impeached. Sue v. State, 52 Tex. Cr. R. 129, 105 S. W. 804; Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Id., 51 Tex. Cr. R. 7, 99 S. W. 1122; Burnaman v. State, 70 Tex. Cr. R. 361, 159 S. W. 244, 46 L. R. A. (N. S.) 1001; Roberts v. State, 168 S. W. 111.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J. DAVIDSON, J.

license: Public Domain

text:
    WITTEN v. STATE.
    (No. 3791.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.
    Dissenting Opinion Dec. 8, 1915.)
    Cbiminai. Law ¡&wkey;829 — Venue — Larceny — Instextctions.
    The question of venue was sufficiently presented, so that giving of defendant’s requested instructions was unnecessary, the court’s charge requiring as a condition to conviction a finding that the original taking was in W. county, the place of trial, or in A. county within 400 yards of the line between the two counties.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    Davidson, J., dissenting.
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    George Witten was convicted, and appeals.
    Affirmed.

      C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

By indictment of the grand jury of Wilson county, appellant was properly charged with the theft of 20 head of cattle from T. W. Gilliland; the taking being specifically charged to have been in said Wilson county. The jury found him guilty and assessed his punishment at two years’ confinement in the penitentiary, the lowest prescribed by law.

The evidence, without the testimony of appellant, was amply sufficient to show that he and his brother, Nelse Witten, stole the cattle as alleged; but whether they jointly stole them or not, so far as appellant is concerned in this ease, that question becomes wholly immaterial, for the appellant testified fully, and he specifically and positively testified that he -stole the animals described in the indictment. He also testified that, when this case was first tried, he pleaded guilty under this indictment. How, or in what way, he got a new trial, is not disclosed. His sole defense on this trial was that the cattle were not in Wilson county,- nor within 400 yards of'the line between Wilson and Atascosa counties, at the time he took the cattle, but 'testified that they were in Atas-cosa county, and more than 400 yards in Atascosa county beyond the dividing line between said two counties, when he stole them. So that the sole question was whether or not the cattle were stolen in Wilson county, or within 400 yards of the dividing line between that and Atascosa county.

The testimony of. the state — and as for that matter the whole testimony — was amply sufficient, if it did not positively and clearly, establish outside of appellant’s testimony alone on this issue, that the stolen cattle were in Wilson county at the time they were taken by appellant.

The court, in submitting the case to the jury for a finding in his charge, specifically required the jury to believe beyond a reasonable doubt, with all the other requisites, that appellant fraudulently took the cattle in Wilson county before they could convict him. In another paragraph of the court’s charge, he told them on the question of venue, that, if they believed beyond a reasonable doubt that he alone, or together with another, or others, was guilty of the theft of the cattle as charged in the indictment, “and you further believe from the evidence that the original taking of such cattle (if any) was committed in the county of Wilson, or in the county of Atascosa and within 400 yards of the division line between Wilson county and Atascosa county, you will find the defendant guilty.” In the following paragraph, he told them that if, on the other hand, they believed from the evidence beyond a reasonable doubt that he alone, or together with another, or others, was guilty of the theft as charged, “and you further believe from the evidence that the original taking of said cattle, if any, was in Atascosa county, and more than 400 yards from the division line between Wilson county and Atascosa county, this caso cannot be prosecuted nor convicted in Wilson county, and you will find the defendant not guilty.”

These charges presented the question of venue properly to the jury, and none of appellant’s charges on the subject should have been given.

Appellant has several bills of exceptions as to other matters; but, under the undisputed and uncontroverted facts of this case and the positive and unequivocal testimony of appellant that he stole the cattle, they are all immaterial and pass out of the case. However, we have considered all of them; and, even if it was necessary to pass upon them, they present no error.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). While I believe the court was in error with reference to the charge on principals, especially in view of the statements of Nelse Witten used by the state to the effect, that he and the defendant took the cattle, still I do not deem it necessary to write at length on this matter. It was a serious issue whether the remarks of Nelse Witten, when he made that statement, were heard by appellant. With that statement out, the doctrine of principals would not be applicable to the case. It would therefore assume a proposition detrimental to defendant, which made him guilty or might make him guilty as a principal, when if Nelse Witten was not a principal or connected with the original taking, appellant’s guilt would be made to depend upon a fact not shown. It was a controverted issue, and, if the court saw proper to charge on principals from that viewpoint, he ought to have given the converse of the proposition; but, it not being a serious matter in this case because of the fact appellant himself admitted taking the property, it might not be injurious, especially as he received the lowest punishment. I simply mention this in passing. If appellant had received more than the minimum punishment, or if it had been a controverted issue as to his being guilty, that would have become a very serious question.

The question of venue became one of serious import, and was really the contested issue on the trial. It may be stated as a conceded or uncontroverted fact that the pasture of Gilliland, the alleged owner, was right on the line between the two counties, Wilson and Atascosa, and that the alleged stolen property sometimes was in the pasture and sometimes out, more often out than in, and that the pasture fence was down or in such condition that the cattle paid no regard to it and went out and in at their pleasure. It is also practically an uncontroverted fact that these cattle would range down the road into Atascosa county, and often lie down for the night in Atascosa county. From this the state insisted that the venue was in Wilson county. The court submitted the issue that if the cattle were in Wilson or within 400 yards of the line, although in Atascosa county, venue would be properly laid in Wilson county. That is a correct proposition of law, but the state’s case on this line is entirely circumstantial and drawn from the facts above stated. That they were not in Wilson county when taken may be stated as a conceded fact, or at least it ought not to be controverted. The positive evidence shows that the animals were taken a mile or a mile and a half inside of Atascosa county and beyond the limits of Wilson county. This question was brought properly to the attention of the court, and with a request that the law be applied specifically to that phase of the ease, and, if the jury should believe this positive evidence that the cattle were taken as indicated above, appellant should be acquitted, for the reason that Wilson county would not have venue. X think this charge should have been given, because that would have been an affirmative presentation of the positive evidence on that theory. The general charge was not sufficient under the circumstances. I am further of opinion that, inasmuch as the state could only draw the inference from circumstances that the cattle may have been or may not have been within 400 yards of the Wilson county line at the time taken, this is not sufficient under the testimony showing positively that they were a mile or more inside of Atascosa county. Presumption based on a presumption cannot form basis for conviction and is not legal. While the reasonable doubt may not apply to question of venue, still it is a substantial matter to be shown on the trial, and the evidence ought to be sufficiently strong to show that the cattle were within jurisdictional limits. See Branch’s Crim. Law, §§ 838, 839. This matter was presented to the court in special requested instructions, which were refused and exception taken. I believe under the showing made this judgment ought not to be affirmed.

       — .Ttnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPEB, J.

text:
    CASEY v. STATE.
    (No. 3842.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Cbiminai, Law <&wkey;417—Evidence—Admis-sibility.
    In a prosecution for theft of a hog, the witness to whom accused sold the animal, in testifying to a conversation wherein accused was informed that another claimed the hog, may testify as to the assertions made by the claimant; such- assertions being essential to an understanding of accused’s answers and protestations.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. &wkey;>417.]
    2. Ckiminal Law &wkey;s982—Evidence—Admis-sibility.
    Where accused prayed for a suspension of his sentence on the ground of previous good character and introduced evidence thereof, the state may show that accused had been prosecuted for running a disorderly house and had turned state’s evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;>
    3. Witnesses <&wkey;379—Impeachment.
    In a prosecution for theft of a hog, where a witness testified that he saw accused purchase it from a Bohemian as claimed, he may be impeached by proof of his statements to another that he intended to so testify, as accused was in straits and suggested that such other also help accused by giving such testimony.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. &wkey;>379.]
    4. Criminal Law <&wkey;673—Evidence—Admis-sibility.
    Evidence admitted to impeach one of accused’s witnesses by showing the falsity of his testimony cannot be considered for any other purpose.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. &wkey; 673.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    J. C. Casey was convicted of theft, and he appeals.
    Affirmed.
    W. H. Fears, of Waxahaehie, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPEB, J.

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

The evidence fully supports the verdict. Appellant’s defense was that the hog he sold Mr. Earle had been secured by him from a Bohemian. The court submitted this issue-to the jury, and they found against appellant. The testimony of Mr. Bitch and Smith Harrison, who identified the hog as one stolen from Mr. I-titeh, was weakened some by the testimony of Mr. Collier; but on this trial they testify positively that the hog in question was stolen from Mr. Bitch.

'Mr. Earle was permitted to testify to a conversation he had With appellant in regard to this stolen hog. He testified, among other things:

“I had a conversation with Mr. Casey, and he (appellant) said to me: ‘Earle, what you think? Mr. Bitch is claiming the hog that I let you have.’ I said: ‘Yes, that is what he tells me, that he has lost a hog. He gave me a description of the hog and went out there and looked at the hog and said it was his.’ He first went through my bunch of hogs and did not find him and seen him over in another pen, and the negro says, ‘Yonder is that hog.’ I was telling Casey what Bitch told me, and Casey says: ‘Why I got him from a Bohemian, I will get the Bohemian. I just while ago paid him for the hog.’

Appellant objected to this conversation, and especially that portion as to what Earle told appellant Bitch had said. Appellant was not under arrest at this time; brought up the conversation himself, and what Earle said to him was necessary to render his reply intelligible. There was no error in admitting the testimony. Appellant cites ns to the cases of Anderson v. State, 14 Tex. App. 49; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341; Thompson v. State, 42 Tex. Cr. R. 142, 57 S. W. 805. In these cases it is held that the witness would not be permitted to testify that the owner identified the property, when defendant was not present. These cases correctly announce the law, but this case is wholly different. The witness is testifying to a conversation he had with defendant, and is telling merely what he said to defendant and defendant’s reply thereto, even though it involved what some other person had said. It was to no additional fact in evidence, as Mr. Ritch had already testified to the same matter. Witness was merely telling defendant, in answer to a statement made by him, what had been done, and then to give appellant’s reply and explanation.

Appellant filed a plea, praying for a ■suspension of sentence, and in addition placed Sam Wood, Pete Freeman, and a number of other witnesses on the stand to prove that his reputation as a peaceable law-abiding citizen was good. On cross-examination of these witnesses the state was permitted to ask them if they knew of defendant being prosecuted in connection with Ed Wim-berly for running a disorderly house. Mr. Freeman replied that he had heard of it. Appellant objected to this testimony on the ground that appellant had not been convicted. The state then proved that appellant had turned state’s evidence, and on the 'trial of Wimberly testified in behalf of the state. The court did not err in admitting the testimony, as appellant had placed in issue his reputation as a peaceable law-abiding citizen. Neither were the comments of the county attorney on this phase of the testimony improper. Appellant was seeking a suspension of the sentence, if he was found guilty, and it was legitimate for the county attorney to comment on this testimony and draw legitimate deductions from the fact that appellant had turned state’s evidence on that occasion and thereby secured a dismissal of the case against him.

Ed Wimberly testified for defendant, and testified that he was present when appellant paid the Bohemian for the hog appellant was prosecuted for having stolen from Mr. Ritch, and sold to Mr. Earle. On cross-examination the state asked Wimberly if he had not approached Henry Beach and told Leach he was going to so testify, and asked Leach to also testify to such state of facts. Wimberly denied having done so, when Leach was called and testified:

“Ed Wimberly said to me, ‘Old Dad Oasey is in pretty bad fix, I am going to help him out, and I am going' to tell that I saw him pay the Bohemian the money. Can you help him out?’ ”

The court did not err in admitting the testimony. In his charge he properly limited it by instructing the jury that they could not consider it as evidence against the defendant, but, if considered at all, it would be to aid them, if it does, in determining the weight to be given the testimony of Ed Wimberly, and his credibility. The remarks of the county attorney in regard to this testimony were also proper and legitimate, and he said nothing but what would be deducible from it from the state’s standpoint. Legitimate deductions may always be drawn in argument.

There was no evidence calling for a charge on the issue of whether or not Smith Harrison had that care and control of the hog as to render it necessary that ownership be alleged in him. He was a mere employs of S. F. Ritch, feeding and looking after the hogs; they were at all times in the possession of Ritch.

The judgment is affirmed.
      other eases see same topic and KEY-NUMBEft m all Key-Numbered Digests and Indexes


text:
    ROGERS v. STATE.
    (No. 3852.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Criminal Law <&wkey;721 — Misconduct of Counsel — Reference to Defendant’s Failure to Testify.
    On a trial for homicide, where insanity was relied on as a defense, and where defendant’s examination and cross-examination in the examining court were received in evidence, defendant’s counsel, in examining an expert witness, referred to defendant’s inability to give any fact or circumstance upon which to base a suspicion entertained by him. The state’s counsel thereupon remarked that they had had no chance to question defendant about that. Defendant’s counsel excepted to the remark as an inference prohibited by law. The court told the jury to pay no attention to the remark, and the state’s counsel then stated that he was alluding- to defendant’s testimony at the examining trial, and defendant’s counsel again objected. Held, that this could not be properly regarded as an allusion to defendant’s failure to testify, and, if it was, it was a bare allusion, and under the circumstances neither required nor authorized a reversal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <&wkey;>721.]
    2. Criminal Law <&wkey;1091—Bill oe Exceptions— Sufficiency to Show Error.
    A bill of exceptions complaining of a question asked defendant’s wife on cross-examination as to whether she heard a conversation between the prosecuting attorney and defendant’s counsel at the examining- trial and a statement by defendant’s counsel that insanity would not be interposed did not show error, where it showed that the question was not answered, and did not show what the wife testified on direct examination.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;>1091.]
    3. Criminal Law &wkey;4S3, 489—Opinion Evidence-Examination of Experts.
    Where, in a criminal trial, a doctor testified for defendant concerning various physical ailments or defects, and that from- them and from defendant’s own statements to Mm it was Ms opinion that defendant was insane, it was not error to permit the state in cross-examining such doctor, and in examining a witness for the state, to ask whether each separate ailment or defect mentioned-showed that defendant was insane, instead of grouping all of them and asking for the witness’ opinion thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1071, 1075, 1078; Dee. Dig. &wkey;483, 489.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Charles P. Rogers was convicted of murder, and he appeals.
    Affirmed.
    John H. Crooker, Crim. Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his penalty assessed at 12 years in the penitentiary. The evidence conclusively establishes that appellant killed the deceased. Prom the state’s standpoint and evidence the killing was a most atrocious and horrible murder. A detail of the evidence is unnecessary.

Appellant’s defenses were self-defense and insanity. Both these questions were submitted in proper charges by the court, to which there was no objection. The evidence on both issues was amply sufficient to justify the jury in believing neither, which they evidently did.

On his insanity defense appellant introduced one doctor, who, in effect, testified of his physical examination of appellant and to various physical ailments or defects, and, in addition,' that from all these and the appellant’s own statements to him it was his opinion that appellant was insane at the time he killed deceased. On the other hand, the state introduced two or three doctors, experts, who testified as to their examination of the appellant, and they testified he was sane. In addition, the state introduced some two nonexpert witnesses, who showed a knowledge and familiarity of appellant to such an extent and for such a length of time that they each, in effect, testified that, in their opinion, he was not insane. It is unnecessary to recite all this testimony. It was amply sufficient to establish, and from it the jury were clearly authorized to find, as they did, that he was not insane but sane at the time he killed the deceased.

In appellant’s first bill of exceptions, he, in effect, complains that the prosecuting attorney in the examination of one of the doctors alluded to appellant’s failure to testify. What occurred is shown by the court’s statement and qualification in approving the bill, which is:

“The defendant had testified in the examining court in his own behalf. His testimony in the examining court, both direct and the cross, was offered in evidence upon the trial of this case unobjeeted to, the state having offered the cross-examination of the defendant’s testimony in the examining court, and the defendant having offered his dix-ect testimony.
“Defendant’s counsel propounded to the witness Dr. Greenwood the following question: ‘His house was exposed in 65 feet of him, day and night, there was nothing could go on there unseen and unknown to him, and notwithstanding his opportunity of knowing and notwithstanding the fact that he was never able to give one fact or circumstance upon which to base his suspicion.’
“State’s counsel remarked: ‘We have never had a chance to question this defendant on that. Guy [meaning Guy Graham, counsel for the defendant] is stating that.’
“Defendant’s counsel, Mr. Graham, remarked to the court: ‘I want to except to the counsel’s remarks as being an inference that is inhibited by law.’
“The court instructed the jury to pay no attention to the remark of the district attorney.
“State’s counsel then and there stated that he was alluding to the testimony given by the defendant at the examining trial. Counsel for the defendant, Mr. Graham, objected to tMs last remark of the district attorney.
“Those were the only objections made by the counsel for the defendant, and with this explanation the above bill is approved and ordered filed in the record of this case this, the 28th day of August, A. D. 1915.”

In our opinion, this could not properly be regarded as an allusion to appellant’s failure to testify; but, if it was, it was a bare allusion, and, under the circumstances stated by the bill, it would neither require nor authorize a reversal by this court. Gatlin v. State, 72 Tex. Cr. R. 516, 163 S. W. 428; Vickers v. State, 169 S. W. 669; Cooper v. State, 72 Tex. Cr. R. 270, 162 S. W. 364; and authorities' cited in these cases. It is useless to collate the other authorities to the same effect.

Appellant’s next bill complains of the state’s cross-examination of appellant’s wife. The bill in no way shows what the wife had testified on direct examination. It gives the questions and answers of her on cross-examination, to which appellant objected. The effect, without copying the questions and answers, is that she was present and heard the testimony during the examining trial of appellant. Then the state asked her: “You knew then, you thought, therej was something the matter with your husband’s mind, didn’t you?” She answered: “Yes', sir.” She was asked: “You recall the testimony there, something about a trip to Neiw Orleans?” She answered: “Yes, sir.” Sbe was then asked: “You recall some remarks that Mr. Graham made to me there in your presence?” Appellant then objected that such remarks would be inadmissible. The state then asked: “You recall when I asked him about a trip to New Orleans, and whether or not he had anything the matter with his mind, and Mr. Graham assured me that there would be- no insanity interposed in this case?” The appellant objected, and stated that that had been ruled out once. The court then sustained appellant’s objection, and the witness did not answer. The court, in qualifying the bill on this question, states that tlie witness was not permitted to answer tlie questions. This bill presents no error.

Appellant’s third bill is very lengthy. It is unnecessary to copy it. It contains the questions and answers of Dr. Eoss, appellant’s only expert witness, on the cross-examination of him by the state, wherein the state toolr up separately and asked Dr. Ross if either of the physical ailments or defects of appellant in his opinion would show that appellant was insane. He answered they would not. Appellant's objection to this was that it was unfair to appellant to ask about these separate and distinct things, but that all of them should have been grouped, and from them, as thus grouped, as a hypothetical question, Dr. Eoss should have been asked whether or not, in his opinion from them, all, appellant was insane. We think that appellant’s objection is untenable; that the state’s cross-examination of his witness was entirely proper and justifiable. The same character of examination was indulged in an examination of Dr. York by the state. This likewise presents no error.

These are all the questions raised in this case.

No error is shown, and the judgment is affirmed.
      <@E3>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KIRKENDALL v. STATE.
    (No. 3782.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. HUSBAND AND WIFE <&wkey;312 — ABANDONMENT AfteR Seduction and Marriage — Indictment — Sufficienct.
    An indictment for wife abandonment after seduction and marriage, which followed Pen. Code 1911, art. 1450, in alleging the seduction, was not bad for failure to follow the seduction statute also, since it was not essential to follow the latter in an indictment drawn under the former.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    2. Husband and Wife &wkey;?3l2 — Abandonment After Seduction and Marriage-Indictment — Sufficiency.
    It was not essential to allege in such indictment the day “on or about” which a complaint and affidavit was filed against accused for the seduction, where, after alleging the seduction under promise to marry, the indictment alleged that “afterwards” such complaint was filed.
    Hid. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    3. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage-Complaint — Requisite Allegation.
    While it was not necessary for the indictment to allege that the court in which the complaint for seduction was filed had jurisdiction, it was necessary to allege the particular court wherein such complaint was filed, whereupon the question of its jurisdiction would be tlie subject of judicial knowledge by the court trying accused under the abandonment indictment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. &wkey;312.)
    4. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage-Indictment — Sufficiency.
    The allegation in the indictment that the complaint and affidavit against accused for seduction were filed “In J. P. Court No. in Navarro County” was insufficient for failure to specify the court.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. «&wkey; 312.)
    5. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage — Indictment — Fatal Defect.
    The failure of the indictment to allege the county wherein accused abandoned his wife was fatal, since the court of such county would alone have jurisdiction to try the offense.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <3&wkey;312.)
    6. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage— Indictment.
    The failure of the indictment to allege the day, month, and year “on or about” which accused abandoned his wife was a fatal defect, since such allegation is required by the statute prescribing the requisites of an indictment and information.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    7. Indictment and Information &wkey;>159 — Substantial Allegation — Amendment.
    Such allegation of the date of abandonment being a matter of substance, the indictment could not be amended in that respect.
    LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. &wkey;3l59.)
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Burt Kirkendall was convicted of wife abandonment after seduction and marriage, and he appeals.
    Reversed, and cause dismissed.
    Jack & Jack, of Corsicana, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was convicted for wife abandonment after seduction and marriage. The indictment, after the necessary formal allegation, is:

“That Burt Kirkendall, on or about the 7th day of April, one thousand nine hundred and fourteen, and anterior to the presentment of this indictment, in the county of Navarro and state of Texas, did then and there unlawfully by promise of marriage seduce May Hoffimau, an unmarried female under the age of twenty-five years, and did then and there have carnal knowledge of her, the said May Hoffman, and was afterward charged by complaint and upon affidavit with the offense of seduction of her, the said May Hoffman, in J. P. Court No. in Navarro County; that after said complaint had been made and said affidavit filed against him, and before any indictment had been found against him, the said Burt Kirkendall, and before announcement of ready for trial, he, the said Burt Kirkendall, married her,_ the said May Hoffman; and thereafter., and within two years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle Mm to a divorce under tlie laws of tMs state, did abandon and refuse to live with Ms said wife, and did become so cruel to her as to compel her to leave Mm, the said Burt Kirken-dall. * * *”

By motion to quash, and in arrest of judgment, appellant attacked the indictment on several grounds, some of which, we think, are good. The first part of the indictment charging the seduction follows the statute (P. O. art. 1450), and we think is sufficient. It was not essential to follow the seduction statute. While it would be ¡better for .the indictment to allege the date “on or about” when complaint and affidavit for the alleged seduction was made and filed against him, yet that is not essential, as the indictment herein charged “afterwards,” which means after April 7, 1914. It would not be necessary for the indictment to allege that the court in which the complaint was filed had jurisdiction, but it would be necessary to allege the particular court wherein the complaint charging seduction was filed. The court below and this, too, would have judicial knowledge whether or not the court alleged had jurisdiction.

The indictment herein, in alleging the court, says: “In J. P. Court No. in Navarro County.” That allegation is insufficient. No doubt it was intended to charge that the affidavit was filed in the Justice Court, or Justice of the Peace Court, Precinct No. in Navarro County, Texas. It would be essential that the court should be thus described. “J. P. Court” is not sufficient. The number of the precinct was not essential. Baskins v. State, 171 S. W. 723.

The further allegation that, after said complaint had been filed against him and before any indictment found, etc., he married May Hoffman, might be sufficient; but it is better to allege the particular date, on or about, df the marriage. The latter part of the indictment alleges no date and no county wherein appellant abandoned May Hoffman. Such an allegation is absolutely essential. While there are other necessary requisites in this character of offense, as the statute prescribes, the gist is the abandonment. The seduction might occur in one county, the marriage in another, and the abandonment in still another. The court of the county wherein the abandonment occurred is the only court that would have jurisdiction to try such offense.

“Our statute, in prescribing the requisites of an indictment and an information, requires that it shall state the date on which the defendant has committed an offense, and it has been- uniformly held by this court, and the Supreme Court when it had criminal jurisdiction, that the indictment or information and complaint must give the dag, month, and year of the commission of the offense (or, ‘on or about’ a certain date). Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 882, 96 Am. St. Rep. 801; Vallegas v. State, 66 S. W. 769; Thurman v. State, 45 Tex. Cr. R. 569, 78 S. W. 937; State v. Eubanks, 41 Tex. 291; State v. Slack, 30 Tex. 355 ; State v. Johnson, 32 Tex. 96. It has likewise uniformly been held by this and the Supreme Court that the allegation of the date when an offense was committed is a matter of substance, and that it cannot be amended. Drummond v. State, 4 Tex. App. 150; Little v. State (App.) 19 S. W. 332; Hawthorne v. State, 6 Tex. App. 562; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 293, 4 S. W. 890; Whitley v. State, 56 S. W. 69; Sanders v. State, 26 Tex. 119.” Mealer v. State, 145 S. W. 355.

The allegation of abandonment herein does not aver when nor where it occurred. Nor is it connected by “then and there” with any previous allegation of date or county.

In the particulars mentioned the indictment in this case is fatally defective, and the judgment on that account must be reversed, and the cause dismissed.
      ©sjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOORE v. STATE.
    (No. 3843.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Weapons <&wkey;l7 — Carryino Weapons — CRIMINAL PROSECUTIONS" — SUFFICIENCY OE Evidence.
    Evidence, in a prosecution for carrying a pistol, held sufficient to sustain conviction.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    2. Weapons <&wkey;17 — Carrying Weapons — Criminal Prosecutions — Evidence — Admissibility.
    Defendant, accused of carrying a pistol in a certain saloon, objected to evidence of his carrying it outside the saloon. IT eld, that it was admissible, where the occurrences outside the saloon were within a few moments of those inside as to which the offense was charged.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    3. Witnesses <&wkey;48 — Competency—Witness Accused oe Murder.
    That a witness is confined on a charge of murder does not render Mm incompetent to testify in another criminal prosecution, where lie has not been tried or convicted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. <&wkey;>48.]
    4. Criminal Law <&wkey;763, 764^-Trial — Instructions — Weight oe Evidence.
    It is not error to refuse a requested charge that the jury should consider, on his credibility, that a witness was charged with murder, such a charge being on the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768,1770; Dec. Dig. &wkey;763, 764.]
    5. Criminal Law &wkey;>1122 — Scope oe Beview —Ifailure oe Timely Objection.
    Defendant’s bill of exceptions, which fails to show that he presented a refused charge at the proper time, presents no question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. 1122.]
    Appeal from Gonzales County Court; J. W. Holmes, Judge.
    Guy Moore was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Atkinson & Atkinson, of Gonzales, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted tor unlawfully carrying a pistol and assessed the lowest punishment.

Zeke Williams testified that, on or about the date the appellant was charged with carrying a pistol:

“I saw the defendant that day with a pistol. It was in Stahl’s Saloon in the town of Gonzales. He was standing at the har, and was ‘setting ’em up,’ and he held the pistol over his head and sorter waived it around. I was a few feet off, say as far as from here to that gate [indicating a gate to the bar of the court, some 12 or 14 feet off]. This was on the inside of Stahl’s Saloon, and defendant was at the counter and was drinking with other persons. There were present at that time, as I remember, Jim Parramore, Love Reed, the bartender, Houston Jones, and others, whose names I do not remember just at this time. I am certain it was a pistol because I saw him put it over his head, straight up in the air. This occurred inside of Mr. Stahl’s Saloon in broad open daylight. No, sir; I never had the pistol in my hand at all. Guy just. held it up above his head in his own hand.”

Houston Jones testified that he remembered the time he saw appellant with the pistol, about the date charged in the information. He said:

“He was standing on the sidewalk on the outside of Mr. Stahl’s Saloon in Gonzales, and he just pulled back his coat and showed me the pistol, and said that, ‘Nobody can carry this but me and Mr. Neighbors and Mr. Wright.’ [Mr. Neighbors is the sheriff of the county, and Mr. Wright is the constable of precinct No. 1, in which the town of Gonzales is situated.] I know the defendant well, and know that I saw him at that time with the pistol and heard (vhat he said, and cannot be mistaken about it. The pistol was a red-handled pistol, because I saw it and it looked like red cedar. No, sir; I never had the pistol in my hand at all, but just saw it in the hand of Guy’s pants.”

John Washington, after telling that he knew the appellant well and that he saw him in Gonzales about the time alleged in the indictment, testified:

“We were together on the outside of the saloon of Mr, Stahl, and he pulled back his coat and showed mo the pistol, and said that ‘he was a deputy sheriff.’ It appeared to me to be a black-handled pistol. He sort of pulled it up, and I judged it to be a black-handled pistol, with a black or blue steel cylinder and barrel. I am certain it was a pistol, and I thought at the time that the defendant was a deputy sheriff and had a right to carry the pistol. I never-had my hands on tho pistol at all, but just saw it sticking in the defendant’s pants, where he showed it to me.”

Mitchell Williams, after testifying that he knew appellant and saw him in Gonzales about the time charged in the indictment, testified:

“I saw him at or near the hamburger stand, next to Mr. Stahl’s Saloon, and he showed me a pistol sticking in the belt of his pants. He kinder pulled it up and showed it to me. The hamburger stand is located out on the sidewalk east of and near the saloon of Mr. Stahl.”

Newt Jones, after testifying that he was in jail in Gonzales confined on a charge of murder, testified:

“I saw the defendant, Guy Moore, some time on or about the date charged in the complaint, out on the sidewalk near Mr. Stahl’s Saloon, in the town of Gonzales, with a pistol on his person. He pulled back his coat and showed me the pistol. I thought he was an officer, because I believed that he would not show the pistol as he did unless he had a right to carry it. I am sure he had a pistol. I cannot be mistaken about it, because I noticed particularly the steel rim between the'handles on each side; that is, the steel rim to which each side of the handle of the pistol was riveted. I am sure it was the steel frame of a pistol that I saw. Guy Moore said, ‘Newt, you are all right and Mr. Neighbors [the sheriff of Gonzales County] thinks I am all right,’ and pulled up the pistol and showed it to me.”

Appellant introduced Louis Mueller, who testified that he carved out of wood an imitation pistol and sold it to appellant in January. This wooden imitation of a pistol was produced, identified, and introduced in evidence. He said that appellant, at the time he bought it, said that he wanted it to have some fun with the boys. Appellant testified and produced this wooden imitation pistol, and swore that at the time he was charged with this offense he did not have any pistol other than this wooden imitation. The wooden imitation is sent up to this court and properly identified. We have examined it. Appellant further testified:

“I had the pistol in the waist band of my pants and pulled back my coat and showed the article to several different boys, but I do not remember pulling it out and flourishing it about in the saloon, but I might have done so, for I had no intention of concealing it. I positively deny that I ever told any person that I was a deputy sheriff, either on that occasion or any other, and I also positively deny that I ever told any one that only myself and Mr. Neighbors and Mr. Wright could wear a pistol.”

He further testified that he had bought it from said Mueller and that he told him at the time that he was going to have some fun with it with the boys. He further testified :

“These boys may have thought I had a real pistol because it was my idea to fool them and have some fun with the imitation pistol. I do not remember who all I showed it to, but it was quite a number. I did not let any of them handle it because I knew they would see at once that it was not a pistol, and then my fun would be over.”

The court gave a correct charge, and therein required the jury to believe beyond a reasonable doubt that appellant had a pistol on the occasion charged before they could convict him. In addition, he gave this charge requested by appellant:

“You are further charged in this case at the request of the defendant that if you believe from the evidence, or have a reasonable doubt of the fact, that the article exhibited by the defendant at the time he is charged with carrying a pistol was anything other than a real weapon and'a complete pistol, then you will acquit tho defendant, and say by your verdict ‘not guilty.’ ”

The evidence was amply sufficient to sustain the verdict, and we cannot set it aside.

Appellant has some bills of exceptions to the testimony of some of the state’s witnesses, claiming that only what occurred about the pistol inside of Stahl’s Saloon was admissible, and that the testimony of the other witnesses that they saw him on the outside of tlie saloon witli the pistol was inadmissible. The court in qualifying his bills on this subject states that he allowed such testimony, because that at the time the witnesses testified about seeing the pistol on the outside was on the same day and within a few minutes of the time he was alleged to have been seen on the inside with said pistol. We think all this testimony was clearly admissible and the court’s ruling was correct.

The witness Newt Jones was not incompetent to testify because he was confined in jail on a charge of murder, as there is no intimation that he had ever had a trial or had ever been convicted of that offense.

Nor did the court err in refusing appellant’s charge instructing the jury that they should consider the charge of murder pending against said witness as affecting his credibility. This would have been on the weight of the testimony.

However, this question is not presented in such a way that we can consider it. He made no objection to the court’s charge, because the court did not charge on that subject ; nor does his bill show he presented his charge to the court at the proper time.

The judgment is affirmed.
      <S^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    BULLINGTON v. STATE.
    (No. 3687.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    On Motion for Rehearing, Dec. 8, 1915.)
    1. Ceiminal Law <&wkey;1134 — Review — Matters Not Necessary to Decision.
    Where the case is necessarily reversed upon other grounds, alleged error in overruling a motion for new trial will not be considered on the ground of newly discovered evidence, since the newly discovered evidence would not be newly discovered on the second trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2896-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    2. Criminal Law <&wkey;699 — Trial—Conduct of Trial — Questions by District Attorney-Admissibility.
    In a prosecution for assault with intent to • hill, where accused, who 14 years before had been acquitted on a charge of murder, was placed on the stand, his counsel informing the court and district attorney of that fact, and that they did not desire questions upon that matter, the court, having ruled that the matter was too remote, had power and should admonish the district attorney to refrain from interrogating accused concerning the former charge.
    [Ed. Note. — For other eases, see Criminal Law, Cent.Dig. §§ 1655,1656; Dee.Dig. &wkey;699.]
    3. Criminal Law <&wkey;7C6, 1171 — Trial—Conduct of Counsel.
    In such case, where the district attorney admitted or understood such evidence was inadmissible, hut notwithstanding questioned accused about the matter, thus bringing it to the at-, tention of the jury, his conduct was improper, and was ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1661, 3126, 3127; Dec. Dig. &wkey;706, 1171.]
    4. Criminal Law <&wkey;706 — Teiai^Conduct of Officers.
    Prosecuting attorneys are officers of the state, whose duty it is toi see that justice is done, and they should never attempt to get before the jury evidence they know to be inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. <&wkey;706.]
    5. Criminal Law <&wkey;713 — Triai^-Argument of Counsel.
    In a prosecution for assault with intent to kill, committed upon accused’s wife, the district attorney in his argument told the jury that accused, who 14 years before had been acquitted of murder, was guilty then and escaped punishment; that his wife had separated from him on account of his drinking; that since he assaulted her, she was suing for divorce, alleging as her sole ground the assault with intent to kill; and that if accused was not convicted she would have to live with him, and he could continually browbeat and mistreat her. There was no evidence that the wife had brought suit for divorce, or had separated from her husband 4 years before, while the evidence as to the former charge of murder was improperly received, it being too remote. Held, that the remarks of the district attorney were highly improper and inflammatory, being partly outside of the record, and partly based on inadmissible evidence, and hence necessitated a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. &wkey;
    6. Criminal Law <&wkey;1037 — Appeai>-Peesen-tation of Grounds of Review in Court Below.
    While it is proper, when the district attorney makes improper argument for accused, to request written instructions charging the jury to disregard it, yet, if the remarks are so inflammatory that instructions would not remove from the minds of the jury the prejudicial effect of the argument, the failure of accused to request such instructions will not preclude review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. &wkey;ri037.]
    On Motion for Rehearing.
    7. Criminal Law <?&wkey;1087 — Appeal—Record —Docket Entries.
    Where the act of the distinct attorney in bringing out the fact of prior charges of crime were sought to be upheld on the ground that accused had filed an application to suspend sentence, and such application appeared only on the motion docket, it cannot be considered, the clerk being positive that it had been sworn to, though not certain that it had been filed, where it did not appear in the minutes, for the court cannot consider record entries not in the minutes.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2776-2781, 2794; Dec. Dig. &wkey;1087.]
    8. Witnesses <&wkey;337 — Accused as Witness-Evidence — Former Offenses.
    Evidence that 14 years before accused, who was charged with assault with intent to kill, was acquitted on a charge of murder, was not admissible, being too remote, where during the interim he had been charged with no offense, though he filed a plea to suspend sentence.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. &wkey;837.]

      9. Criminal Raw <&wkey;1093 — Appeal—Exceptions — Bill of.
    Rills of exceptions, complaining of argument because there was no evidence to support it, and that it was without the record, are sufficient to present the question whether there was any evidence to justify the remarks, where the only qualification showed that some of the remarks were based on evidence improperly received over objection.
    [Ed. Note. — For other eases, see Criminal Raw, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. ®=»10f)3.]
    10. Cbimxnai, Raw <&wkey;114dr-APFEAL — Statement of Facts — -Presumption.
    It will be presumed that the statement of facts agreed to by counsel and proved by the court correctly presents the evidence, and the district attorney cannot support argument claimed to be without the record, on the ground that the statement of facts does not contain all the evidence.
    [Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §§ 2730-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Frank M. Bullington was convicted of assaulting Ms wife with intent to kill her, and he appeals. Reversed and remanded. On motion for rehearing.
    Motion overruled.
    Cunningham & McMahon, of Bonham, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assaulting his wife with intent to kill her, and his punishment assessed at 8 years’ confinement in the state penitentiary.

Appellant, in his brief and able oral argument before this court, seems to rely mainly for reversal of this case op the ground that the court erred in overruling his motion for new trial, because of alleged newly discovered testimony. We do not deem it necessary to discuss this ground, as the caso will be reversed on other grounds, and it certainly will not be newly discovered on another trial.

The most material error, as we view the record, is shown by those bills which complain about the court permitting the prosecuting officers to inquire about the indictment of appellant (it being too remote) and the argument of prosecuting counsel in his closing address in regard to this matter, and comment upon matters not in evidence. In the first bill of exceptions it is shown:

“Be it remembered that upon the trial of the above entitled and numbered cause, and before the defendant had taken the stand to testify in his own behalf in this ease, defendant’s attorneys stated to the court and to the district attorney in the presence of the court that the defendant had, 14 years prior to this trial, been charged with the offense of murder, and tried in this court and found not guilty by a jury, and had never since then been charged with any offense, and had lived in Fannin county during all of such time since such trial, and submitted to the court that such prosecution was too remote to be offered in evidence in this case as against him, and could be offered for no other purpose than to put him- in an improper light before the jury, as the facts were that he was justified in killing, and necessarily had to kill his assailant at such time, and asked the court to instruct the district attorney that such former charge was not admissible for any purpose against the defendant, and that the state could not, and would not, be permitted to inquire into same, and ■ the court thereupon stated that it was too remote to be admitted in evidence against the defendant, but that the state’s attorney had the right to ask any question he saw fit, and the defendant’s counsel had the right to object to such questions when asked, and he would pass upon thorn at the time, and the district attorney thereupon stated that he knew such evidence was not admissible, but that if we did not want it in we could object to such evidence, and defendant’s attorneys thereupon told the court and the district attorney that they reserved then an exception to any conduct of the district attorney in asking about such charge when he took the stand in liis own behalf. And thereupon the defendant took the stand in his own behalf, and while testifying on cross-examination the district attorney asked the defendant the following question: ‘Q. Mr. Bullington, I will ask you if you have not been charged prior to this time with a felony; that is, if you have not been charged with murder?’ And the defendant answered, ‘Yes.’ And the defendant’s attorney thereupon renewed such objections to the court, and stated that they would not object to defendant answering, since the district attorney had made such insinuation before the jury, and that they wanted him to answer it all, and then and there duly excepted to the action of the court in permitting the district attorney with such notice in propounding such question and injecting that matter in this case when it could have nothing to do with it, for the reason that it was too remote, being more than 14 years before; did not involve moral turpitude and threw no light on this case, and because the same was injected into the case for the sole purpose of trying to influence the jury and prejudicing the jury against the defendant. And defendant here tenders this his bill of exception No. 1,” etc.

In approving the bill the court, says:

“The above bill has been presented to me and given with the following explanation: That while the case was being tried, but not while the evidence was being taken, just before defendant took the stand, counsel for defendant, in my presence and the presence of the district attorney, said that Bullington had been tried and acquitted in court about 14 years ago, and he didn't want the district attorney to be asking defendant about that. I told him I thought it too remote, but I could not pass on it until it come up to me; that I thought the district attorney had the right to ask any question that he wanted to, and that the defendant could object, and then I would pass on it, and the defendant’s, counsel then said, ‘We want to take a bill of exceptions, as the matter is too remote, and, could not affect the defendant.’ The question and answer set out above in the bill was not the question asked by district attorney nor the answer of the .defendant. The question asked was as follows: ‘Mr. Bullington, T will ask you if you have not been charged prior to this time with a felony.’ Defendant answered: T refuse to answer.’ Counsel for the defendant then made the following statement: ‘Your honor, I am going to object, since he has made the insinuation before this jury. I want him to answer and answer it all, but I take an exception to the action of the district attorney in injecting a matter in this case that has nothing to do with it; that does not involve moral turpitude, and would throw no light on this case, and injected for the sole purpose of trying to influence the jury and prejudice them against the defendant; and I take a bill of exception to it.’ Then after counsel for the defendant made the above statement, the district attorney asked the following question: ‘You have been charged with a felony before, haven't you?’ And defendant answered, ‘Yes, sir.’ Then district attorney asked, ‘Been charged with murder, have yon not?’ and defendant answered, ‘Yes, sir.’ Then the district attorney asked the following question: ‘You have been charged with murder more times than one, too, haven’t you?’ Defendant answered, ‘No, sir.’ Then district attorney asked, ‘I will ask you if you was not charged with murder in Bell county?’ Defendant answered, ‘No.’ Then the district attorney asked, ‘I will ask you if you was not charged with murder in Tennessee before you came out here?’ And the defendant answered, ‘That don’t concern you.’ The questions and answers were asked and made one right after the other, as above indicated. And nothing done, except as set out in this explanation, except defendant excepted to each question. In this ease the defendant had filed an application to submit to the jury the question of suspended sentence, and the same was put on the motion docket, and the motion of the defendant was granted by me. [Signed] B'en H. Denton, Judge.”

It is seen the court apparently did not think he had the right to prohibit the district attorney to ask a question about a matter about which both he and the district attorney knew was inadmissible as testimony. In this the court was in error. In Vick v. State, 71 Tex. Cr. R. 62, 159 S. W. 50, this court said, in passing on a similar assignment of error:

“The court was clearly in error when he stated in effect there was no rule of law giving him authority to require or instruct the county attorney not to ask appellant about the former conviction. The court not only had the power and authority to do so, but it was without doubt his duty to do so, and not only should he have instructed and required the county attorney not to ask said questions, but he should have used the whole power of the court to enforce his instructions. And if under such circumstances the county attorney still persisted and asked, or attempted to ask, such question, the court should have inflicted such immediate and severe punishment as would not only deter him, but any other prosecuting officer, in future to desist. Appellants, however guilty, or for whatever crime charged, have the right to a fair and impartial trial, and they have the right and it is the duty of the court and the prosecuting officers to see that improper evidence is not admitted or attempted to be introduced.”

Prosecuting officers should never attempt to get before the jury evidence they know to be inadmissible. This hill shows that the officer said he knew the evidence was inadmissible, but nevertheless he would make ah attempt to get it before the jury. The district and county attorneys are officers of the state, and sometimes they seem to misconceive their duties, and think it their duty to secure convictions by any possible means, and because of this tendency on their part, it has brought up the question of whether or not it is the duty of the state to provide another officer, a public defender. In olden times it was considered, and the true theory is, that the trial judge and district attorney are officers of the state whose duty it is to see that each party charged with crime is given a fair and impartial trial under the law, and this each officer of the law ought to use his best endeavors to see is done. Prosecuting officers should not let their zeal get the better of their judgment. They have a higher duty to perform than the mere securing of convictions — a duty to see that each man tried is tried in accordance with the rules of law and no improper advantage is taken of any one, no matter with what crime he is charged nor how guilty he may be believed to be.

In other bills it is made to appear that Mr. Baldwin, private prosecutor, in the closing address to the jury, said:

“The defendant was guilty of the killing 14 years a'go and escaped punishment then, and was attemjiting? to get out of this case in the same way, but that dead man’s blood was on his hands, that they should convict the defendant and give him a severe penalty because he was experienced in crime and in defending murder charges, and when he shot his wife he had been so successful theretofore he thought he could kill her and come clear; that defendant and prosecutrix had separated 4 years before on account of his drinking, and the thing that caused the separation caused him to shoot and attempt to kill prosecutrix; that they should convict and give defendant a severe punishment, as prose-cutrix had brought suit for divorce, alleging as her sole ground for divorce that defendant had made an assault on her with intent to murder her, and if they did not convict him, she would have to live with him, as she had no other place to go; that he would be madder still at her than he was when he shot and tried to kill her, and that he would continue to get drunk and harass her, and he would tell her every day of his life that he had killed a man and gotten out of it; that he had shot her and got out of it; that a jury had turned him loose, and that this jury, if they turned him loose, would leave her at his mercy to be mistreated and bulldozed during the balance of her life.”

There was no evidence in the record that prosecutrix had brought a suit for divorce; there was no evidence in the record that defendant and prosecutrix had separated 4 years before on account of his drinking. These were matters injected into the ease by argument of counsel without any foundation therefor in the evidence. Then, again, appellant had timely attempted to keep out of the record the fact that he -had been indicted for killing a man some 14 years before, but had not succeeded in doing so apparently. Such testimony was inadmissible, and the remarks of counsel in regard thereto were highly improper, and the objections made thereto by appellant should have been, sustained. The only explanation of the bills by the court is that counsel asked no written instructions in regard thereto. It was proper for counsel to have done so, and he should have done so, but in this instance the remarks are so inflammatory, and being also about matters which have no foundation in the record, wre are of the opinion that they were of that character as to present reversible error, even though no written instructions were requested. Especially is this true when we consider the punishment assessed against appellant, and that prejudicial testimony was injected into the record over timely objection. The rule is that if the remarks are of such character that instructions not to consider same would not remove from the minds of the jury the prejudicial and harmful effect of the argument, it will present error, even though no written charge was requested, if the objection to the remarks is timely made, and the court refuses to stop counsel.

There are other matters complained of in the record, but we think none of them present error.

Reversed and remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing in this cause, insisting that erred in reversing the case, and calling our attention to the fact that the court, in his qualification to the bill copied in the original opinion, stated:

“The defendant had filed an application to submit to the jury the question of suspended sentence, and the same was put on the motion docket, and the motion of the defendant was granted by the court.”

In the original opinion we did not discuss this paragraph of the qualification, for the reason that the record before us contained no application for a suspension of sentence, and the court in his charge did not submit that issue to the jury. The record being in that condition, we thought perhaps the court had some other case in mind when approving the bill, for if an application for a suspension of sentence had been filed, it should have been embraced in the record, and the court in his charge should have submitted it to the jury. However, in the motion for rehearing, state’s counsel insists that such motion was filed, and states that was his reason for inquiring into the former charge against appellant, although remote, and thought this court had so held in an opinion written by the writer in Williamson v. State, 167 S. W. 360. In the case of Leonard v. State, 53 Tex. Cr. R. 191, 109 S. W. 149, this court, speaking through Judge Ramsey, held a court could not qualify a bill by inserting in his qualification matters outside of the record. Judge Ramsey said, in speaking of a qualification of a hill by the trial judge:

“We have¡ as we should have, great respect for any finding of fact by the trial court, and if there was any evidence” to support such finding, “we would not hesitate to uphold the conclusion of the trial judge, but in view of the record,” with no statement to support the finding, “we can scarcely bring ourselves to believe that the opinion of the trial court on this question is supported by the record.”

Under this rule of decision, with no application for a suspension of sentence in the record, the charge of the court not submitting that issue, there was nothing in the record to support the qualification; therefore we did not discuss it. But, as the state insisted in the motion for rehearing an application for suspension of sentence was filed, the court ordered the clerk of this court to issue a writ of certiorari, commanding the clerk of the district court of Fannin county to send up without delay a perfect transcript of the record in said cause, incorporating the application for a suspension of sentence filed in said cause (if any filed) and all other pleadings and orders had in. said cause, and which were not included in the transcript heretofore filed in this court in this ease. In answer to the writ the clerk filed an answer, and a supplemental answer. In the original answer the clerk states:

“(1) That in making up the transcript in the above cause I put in all the matters in the ease that I could find of record or file, except as shown by this certificate.
“(2) That there is no application with the papers for a suspension of sentence, but defendant swore to same before me, and I filed it.
“(3)_ There is on the criminal motion docket of this court the following entries on page 82, criminal motion docket Ño. 1:
“That said entries are in the handwriting of L. L. Peterson, clerk of this court, except the entry, ‘March 2, 1915, Motion granted’ — which is in the handwriting of Hon. Ben. H. Denton, judge of this court.”

In the supplemental answer the clerk adds:

“That I have no recollection of seeing an application for the suspension of sentence in the papers in the above cause. 1 remember swearing the defendant to such an application, but have no independent recollection of whether 1 filed it or not, but I must have filed it, or it would not be on the motion docket; that my records show the same entry in the motion docket in every case where the suspended law is applicable that has been tried in this court since such suspended law has been in force; that in only one case does tile record show that during the progress of such trial was such application for suspended sentence withdrawn, and in that case the court required the attorneys for the defendant to make written application for the withdrawal of such motion, and such motion for withdrawal was put on the motion docket, and the court by order granted same; that no such order and record appears in this case, and I haye never seen a motion in the above case asking for the withdrawal of such issue.”

It is seen that the above record shows the plea to have been filed on March 2d, and the verdict was rendered on March 2d. The clerk certifies that the case occupied two days’ time in its trial, so the plea was not filed on the first day, or before beginning of the trial, but on the day the -verdict was rendered.

The above facts are stated that the contention of each of the parties may be understood. The district attorney, Mr. Lipscomb, in his argument on the motion for rehearing, says:

‘‘The trial judge and the district attorney, it seems, have been very badly mistreated in this case, in that from what took place in the case it seems that Judge Harper and the court took statements and contentions of defendant’s counsel in the place of the record and the true facts in this case. And in this connection we wish to state that the defendant filed an application for suspended sentence, and that the record in the case shows it, and then, when the case gets before this court, it seems that defendant forgets even having filed the same, and contends that no such application was ever filed. The true facts in the case are that the application was filed, and that it was kept from the prosecution during a greater part of the trial of the ease, and that when it was discovered by the prosecution, the defendant and his counsel withdrew the application from the papers in the case and from the case, but that that was after the defendant was on the witness stand, and after the questions asked by the district attorney had been asked. We do not charge that the attorneys for the defendant willfully attempted to mislead this court, but we do insist that the explanation to the bill of exceptions and the record in the case as it now is, and the true facts, establish the fact that the defendant’s counsel were in error when they charged, if they did, that there was no application for suspended sentence filed; and that the trial judge was using statements in his explanation to the bill of exceptions that were not the fact.”

Messrs. Cunningham and McMahon, attorneys for defendant, in their answer most emphatically deny that an application for a suspension of sentence was filed in this case. They say.

“We stated that the record showed that the suspended sentence issue was not in the case, and we insist that it was not, for the following-reasons:
“(1) If it was in the case, why didn’t the court or the district attorney suggest that this evidence was admissible for that purpose, instead of admitting that they knew it was not admissible? One of two things is true, that they knew it was not there, or they have had a change of heart as to the law on this point.
“(2) The supplement to the transcript shows that this entry is merely on the motion docket, and that the court’s order thereon was never written up in the minutes. We have asked the clerk to send in a second supplement, giving all of the facts. This second supplement shows that in every case that has been tried since the suspended sentence law has been iq effect these same entries appear on the docket. The truth is, as shown by these supplements, that our mechanical clerk made these entries in every case, whether applied for or not. If the district judge and district clerk can be convinced that they are not a part of the prosecution, then the defendant may have a chance at a fair trial and an, opportunity to get a record that is not distorted before this court. The district clerk volunteered his opinion that the motion was filed or it would not have been docketed, and the district attorney in his letter stated that it was, but didn’t state it when he admitted that the testimony was not admissible. As they have given their opinions and go out of the record, I will tell the court what the true facts are, but do not expect the court to consider this statement, as it is out of the record and only in answer to them. When we were asked for an announcement my co-counsel came to the writer and asked him whether he thought we should file an application for suspended sentence. I stated if they convicted the jury would not suspend, and that the application would prejudice the case, and we decided not to file one. The district clerk may be correct in saying that he swore the defendant to one, but his conclusion that he filed it. when he admits he- has no recollection of it, is not correct.
“(3) The suspended sentence law provides that the application shall be filed before an announcement of ready. The court knows from the size of the record in this case that it took more than one day to try it. The second supplement to transcript shows that it took two days to try the case, as the talesmen who were picked up to try this case served two days on it. Now, if an application for suspended sentence had been filed, it would have been filed on the first day of the trial, or before the trial began. The judgment shows that it was rendered on March 2, 1915. This mysterious entry on the motion docket shows that it was made on March 2, 1915, the same day that the judgment was rendered, and was never written up on the minutes. If it had been filed, it would have been filed on March 1, 1915.
“(4) If this motion had been filed the court would necessarily have had to charge on it unless we withdrew it. The court does not say that we withdrew it, because we did not, and the second supplement to the transcript shows that in the only case where one was withdrawn, the court required a motion to withdraw and on order duly entered thereon withdrawing same.”

We have copied these matters to show the contention of both state’s counsel and defendant’s counsel. The answers-to the cer-tiorari by the clerk would show that the clerk is positive an application to suspend sentence was sworn to, but the clerk is not so positive that same was filed, hut is of the opinion it was. However, the clerk cannot find the application, and only shows a docket entry on the motion docket, which was not carried forward in the minutes. It has been held frequently that the court can only consider orders which appedr in the minutes, and we cannot consider entries which only appear on the dockets of the court. Long v. State, 3 Tex. App. 321, and cases cited in Oldfield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566.

But we think it immaterial, in the decision of this case, whether or not an application was filed, and have merely made the above full statement as counsel for the state insists that in the original opinion, the trial judge and the district attorney were badly mistreated, and, if so, we want the record to speak and correct any wrong the opinion may have done them or either of them. The writer certainly thinks the trial judge was in no way mistreated in the original opinion. In the bill it is recited—

“that when appellant made the request, before taking the witness stand, that counsel for the state be instructed not to question him about the return of an indictment some 14 years prior thereto, as it was too remote to be admissible, the trial court stated such evidence was too remote to be admissible, but that he would permit the question to be asked.”

In approving the bill the court says:

“Just before the defendant took the stand, counsel said that Bullington had been tried and acquitted in that court about 14 years ag'o, and he didn’t want the district attorney to be asking about that. I told him I thought it too remote, but I would not pass on it until it come up to me.”

We merely held that the trial court was in error in so holding, citing the authorities; that if the objection was timely made, as in this instance, and he held the testimony inadmissible, he should sustain the objection and not let the inadmissible testimony be brought before the jury. If we cannot correct the errors of the trial court, then we have no function to perform. Certainly by saying the trial court was in error is in no way badly mistreating him, for in his qualification he says he held that the testimony was too remote, yet he permitted the district attorney to bring the matter before the jury and ask questions in regard to testimony he held too remote to be admissible. The judge’s view that he could not and would not instruct the district attorney not to ask questions in regard to inadmissible testimony was an incorrect view, and has so been held in a number of instances, and it was our duty to call his attention to this incorrect view of the law that the same error might not be committed in the trial of other cases.

As to our “badly mistreating” the district attorney, we had no such intention and no such thought If, as recited in the bill, after the judge had said the testimony was too remote, yet he would not instruct the district attorney not to ask the questions, the district attorney said, “he knew such evidence was not admissible, but if counsel for appellant did not want it in, they could then object to such evidence,” and with that knowledge had sought to elict testimony he knew to be improper and inadmissible, all that was said in the original opinion should have been said, and district attorneys cautioned not to let their zeal get the better of their judgment. We attributed nothing improper to the district attorney, and the remarks coul'd not be considered as “badly mistreating him,” and we had no such thought, but were endeavoring only to rule so emphatically that such errors would not occur again. However, in justice to the district attorney, we want to say that he contends most vigorously that he made no such remark, and at the time he asked the question he thought the testimony admissible, and if he did not admit he knew the testimony to be inadmissible, then a portion of the original opinion should not have been written, for that portion of it would have no application to the record. But at the time the original opinion was written, all we had before us was the record containing the bill copied in the original opinion, and we did' not know the district attorney contended the bill did not recite the facts correctly. The trial judge in qualifying the bill, as he did, in no way qualified that statement in the bill; and, if it was incorrect in reciting that the district attorney had made such admission and remark, as he qualified the bill in other respects, we naturally concluded that if the recitation was incorrect, he would, in his qualification, also have qualified that statement in the bill. It is commendable in the district attorney to seek to elicit all the testimony he believes to be admissible, and if he thought this testimony admissible, we should not and we would not under such circumstances criticize him, even if we should hold that he was wrong in his contention, as we do in this case. And that the original opinion may not go in the books as written without the contention of the district attorney, and the grounds of his contention being known is why we have set forth the matters so fully, for we have the highest regard and esteem for the district attorney, Mr. Eipscomb— think him an able and zealous officer — yet this should not and would not keep us from holding that error was committed, if error had been committed. Mr. Lipscomb not only contends that he did not admit he knew the testimony was inadmissible, but he says he contended, and he, in this motion for rehearing, contends, that said testimony is and was admissible, if a plea was filed-asking for a suspension of sentence, and cites us, as here-inbefore stated, to the case of Williamson v. State, 167 S. W. 360, in which the writer of this opinion said, in discussing the suspended sentence law:

“When one elects to file this plea asking for clemency, if found guilty, the law puts in issue' his past reputation, and evidence of the character of life he has lived in the past is admissible to enable the jury'to determine whether or not the clemenc3r should be extended.”

If the use of this expression led the district attorney to believe that we were overruling or changing the rule laid down in the case of Winn v. State, 54 Tex. Cr. R. 540, 113 S. W. 918, we were indeed unfortunate in the use of language. We did not intend to abridge the rule there announced.

“In other words, the law will not permit the early indiscretions of a witness to be brought into requisition to besmirch and becloud his subsequent life [if his later life has been upright]. To-do so, as expressed by Judge Green-leaf, * * * would be to preclude any possible cbance of reform, and would enable state’s counsel to parade the early misdeeds of a subsequently useful life to be introduced to becloud and discredit the subsequently honorable and useful life.”

This expression is peculiarly applicable to the recitals of the bill in this case. It reads:

“Defendant’s attorneys stated to the court, and to the district attorney in the presence of the court, that the defendant, 14 years prior to this trial, had been charged with the offense of murder, and tried in tins court and found not guilty by a jury, and had never since then been charged with any offense and had lived in Fannin county during all of such time since said trial.”

Under all of our decisions, if he had lived an upright life for 14 years immediately preceding his trial, this testimony would be too remote, whether sought to be used to discredit him as a witness or to affect his character as a man. Not only would such testimony be too remote, but also it would be improper to reach back some 30 years or more and ask if he had not been charged with an offense in Tennessee before coming to Texas. There is but one instance where these remote transactions become admissible, and the rule is stated in Oates v. State, 149 S. W. 1194; that is where the state can show continuous criminal conduct up to and including the time of the commission of the offense for which he is on trial. If 14 years had elapsed, in which appellant had been charged with no offense, then the state should not be permitted to reach back beyond that and go back 30 years in an effort to discredit him as a man or as a witness. If the district attorney gathered from the Williamson Case that we held, when an application for a suspension of sentence is filed, that the state can reach from the cradle to the grave, in an effort to discredit the defendant, we want to say now we intended no such holding. If a man for a number of years has lived an upright, creditable life, his early indiscretions cannot be inquired into. If on the other hand his life has been one in which he has so lived as to be'almost continuously charged with crime, the state can reach as far back as this continuous course of evil conduct has been continued. The writer thought he had made his views plain in Vick v. State, 71 Tex. Cr. R. 63, 159 S. W. 50, wherein he said:

“I am of the opinion that unless there is other evidence showing a continuity of criminal acts, a conviction, had more than 7- years prior to the commission of the offense for which he is then on trial, would be too remote, and should not be admitted.”

But, as the district attorney claims, if the evidence of offenses committed 14 years ago is not admissible, he was misled by the opinion in the Williamson Case, and therefore not subject to the criticism contained in the original opinion, we have gone into the matter fully, that no one else may be misled thereby, and, perhaps, if the language we used in the Williamson Case, supra, misled the district attorney, the criticism addressed to his action in the original opinion should be addressed to the writer for not using more appropriate language in the Williamson Case. And inasmuch as we hold that the testimony, under the record before us, was inadmissible, even though a plea asking for a suspension of sentence had been filed, it becomes unnecessary for us to pass on the disputed issue of whether or not one was filed in this case, but we merely state the facts as we have done, that no one may be mistreated by the original opinion.

The state also contends that the bills of exception complaining of the remarks of counsel are insufficient to bring the question before us for review; that the bills do not “show there was no testimony, or lack of testimony” to justify the remarks. One of the bills (No. 11) states:

“Because the argument was out of the record, and because there was no evidence as to defendant’s reputation and nothing in the record that the state could show a bad reputation,” etc.

No. 12 says the defendant objected— “because the attorney was out of the record, and there was no evidence in the case to justify any such argument,” etc.

No. 9 reads that the argument was objected to—

“because the attorney was out of the record, Sind because there was no evidence as to the separation mentioned in the argument,” etc.

No. 8 objects to such argument because same was not in the record, etc. No. 10 objects because such argument was out of the record, and because such statement was not the law, etc. We think the objections sufficient to bring the matters before us for review. They state the argument used, and the objections made, and the court by his approval certifies that such argument was used and objections made. Bill No. 8 is qualified by stating it was in evidence that defendant had been tried for murder 14 years prior thereto. This qualification only emphasizes the fact that the court should have sustained appellant’s objections to this testimony when he timely made the objection to it. To two of the bills the court does say that the remarks were in reply to argument of defendant’s counsel, "and this correction we cheerfully make as state’s, counsel requests it. But to two others, the only reason given is that appellant’s counsel requested no charge in writing, but admitting that exceptions were reserved and oral request was made to instruct the jury not to consider such remarks. State’s counsel insists that there was evidence introduced on the trial to authorize some of the remarks, but says:

“We do not contend that the statement of facts contains all these little matters.”

If the record that is sent us does not contain evidence that was adduced, be it big or little, we have no knowledge of it, for it is by the record alone we pass on the matters assigned as error in the record. If there was evidence to justify the remarks, it should have been included in the record, else we must presume that the record signed and agreed to by counsel and approved by the court correctly presents the matter.

The motion ior rehearing is overruled.
      <®=AFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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