author: PRENDERGAST, (P. J.

text:
    STEELE v. STATE.
    (No. 3084.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied May 6, 1914.)
    Weapons (§ 8) — Offenses.
    Under the statute declaring that any person who shall carry on or about his person any pistol shall be punished, it is unlawful to carry a pistol, whether a new one or an old onej loaded or unloaded, or a good or an inferior one.
    [Ed. Note. — Por other cases, see Weapons, Cent. Dig. § 7; Dec. Dig. § 8.]
    Appeal from Nacogdoches County Court; Geo. P. Ingraham, Judge.
    Roy Steele was convicted of carrying a pistol, and he appeals.
    Affirmed.
    J. P. Perritte, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, (P. J.

Appellant was convicted for carrying a' pistol. Appellant asked the court to charge that if the jury believed from the evidence beyond a reasonable doubt that the appellant did have a pistol, as charged, but “you further believe that the pistol was not in shooting condition, or if you have a reasonable doubt” of it, find him not guilty. He also complains of this paragraph of the court’s charge: “If the de: fendant carried a pistol, it would not make any difference whether the pistol was an old one or a new one, or was loaded or unloaded. The law merely says that it is unlawful to carry a pistol, and makes no difference whether it was a good pistol or an inferior one, but it must be a pistol.”

The court qualified appellant’s bill complaining of this charge by stating: “That the witness Andrew Arriola testified, in speaking of the gun: T felt something in his pocket, and pulled it out, and it was a- pistol; was a common-looking blue pistol. It all seemed to be there, and as far as I know it was a whole pistol. It had hammer and all.’ Tom Collins testified: ‘Roy Steele and Cal Eddings’ boy caught up with us. Directly Andrew came up to the wagon and said: “Look here! what I got,” and showed us a pistol. It was loaded, and the cartridges looked like they had been snapped on. It was loaded next morning when I looked at it. It was a pistol, and was an old-looking pistol, and had a hammer and trigger.’ The defendant testified: ‘I brought it to town with me and hid it in my slicker, and left it in my slicker until I started out, and then took it out and put it in my pocket.’ The attempts to shoot the pistol were on the next morning, after the pistol had been. thrown in the wagon the night before.”

We think the court properly refused to give appellant’s said special charge, and there was no error in giving the paragraph of his charge' quoted and excepted to above. We do not regard Blackburn v. State, 58 Tex. Cr. R. 48, 124 S. W. 666, cited and relied on by appellant, as in point. The statute is: “If any person shall carry on or about his person any pistol, he shall be punished by fine,” etc.

We think there is no error shown in the judgment of the court below, and it will be affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SAMPER v. STATE.
    (No. 3098.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 1098*) — Appeal-Statement of Facts — Contents.
    If the alleged libelous article is not contained in the statement of facts, in a prosecution for libel, the judgment of conviction will not be affirmed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dee. Dig. § 1098.*]
    2. Libel and Slandek (§ 155*) — Criminal Responsibility.
    It was not error, in a prosecution for libel, to permit proof of the meaning of the word “renegade,” used in the libelous article, as the court could have legally defined the word in its charge.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Carlos M. Samper was convicted of libel, and appeals.
    Reversed and remanded.
    Greer & Hamilton, of Laredo, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of libel, and his punishment assessed at a fine of $100.

The complaint was based on an article appearing in the EH Progreso, of which appellant was the editor and manager. Mr. Vails testified that he toot the clipping from a copy of the paper of date November. 30, 1913, and translated it from Spanish into English, and the English translation is a correct and substantial translation of the Spanish; but nowhere in the statement of facts is the article copied in the record. It was doubtless introduced in evidence; but in making up the statement of facts it is omitted therefrom, and under, such circumstances we would not be authorized to affirm the case. It is strange that material parts of the evidence adduced are often omitted from the record sent us; but such is frequently the case, and we hope that more care will be taken in the preparation of the statement of facts, and the officers see that it is correct before agreeing to it and permitting it to be filed.

The information we think is sufficient, and the court did not err in overruling the motion to quash it.

Neither do we think the court erred in permitting the state to prove the meaning of the word “renegade.” The court could have legally defined this word in his charge, and proof of its literal meaning would not present error.

The court’s charge is not subject to the criticisms contained in appellant’s objections thereto, and especially is this true when we take into consideration the two special charges given at appellant’s instance and request.

The judgment is reversed, and the cause remanded.


text:
    HODGES v. STATE.
    (No. 3093.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Assault and Battery (§ 54) — Offenses— Aggravated Assault.
    Under Pen. Code 1895, art. 601, subd. 9, defining an aggravated assault as an assault, the assault must be committed with a fixed purpose, and not upon a rash impulse, though the length of time is immaterial if a fixed purpose appears, and the real injury inflicted is not material, except as it may tend to show that the means were calculated to inflict serious bodily injury.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. 54.]
    2. Criminal Law (§ 1173) — Appeal—Harmless Error.
    In a prosecution under Pen. Code 1895, .art. 601, subd. 9, for aggravated assault, where both simple and aggravated assault were submitted, a failure to instruct upon the reasonable doubt in favor of defendant as between the two degrees, while of itself not error, was reversible error, where, had it been given, error in failing to give defendant’s request that, if the difficulty arose from provocation arising at the time, he would not be guilty of aggravated assault would have been cured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    3. Criminal Law (§ 706) — 1Trial—Misconduct of State’s Attorney.
    In a prosecution in a prohibition county, the action of the prosecutor in asking each of defendant’s witnesses if they had not been drinking that day, and if they had not drunk with defendant, and, though they denied it, failing to follow it up by affirmative testimony, was improper as an effort to prejudice the jury against defendant and some of his material witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    4. Assault and Battery (§ 92) — Admissibility of Evidence — Conduct of Defendant.
    Evidence as to whether defendant had a bottle of whisky in his store that day, or had in fact taken a drink or two that day, without any contention that the assault occurred in the store,_ or that he was intoxicated at the time, was inadmissible.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    5. Criminal Law (§ 1169) — Admission of , Evidence.
    In a prosecution for assault in a prohibition county, error in the admission of evidence as to defendant’s possession of whisky, and as to whether or not he had been drinking, was prejudicial.
    •[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6. Assault and Battery (§ 92) — Admissibility of Evidence — Assault by Another Person.
    In a prosecution for aggravated assault, that another person struck the person alleged to have been assaulted by defendant was immaterial, unless it was expected to show an acting together in the assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    D. H. Hodges was convicted of an aggravated assault, and he appeals.
    Reversed and remanded.
    Templeton & Templeton, of Wellington, W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

. Appellant was prosecuted for committing an aggravated assault under subdivision 9 of árdele 601, Pen. Code 1895; the indictment charging that the assault was committed with “premeditated design- and by the use of means calculated to inflict serious bodily injury.” It is thus seen that, to constitute this offense under this provision of the Code, two things must combine: First, the assault must be committed upon “premeditated design”; that is, from a fixed purpose formed in the mind, and not upon a rash, inconsiderate impulse. It is true, the length of time is immaterial if the evidence shows a formed and fixed purpose and design. And, second, the assault under such circumstances must be committed by means calculated to inflict serious bodily injury. The real injury inflicted is not so material, except in so far as it may tend to show that the means used were calculated and perhaps did inflict serious bodily injury. While the court submitted both simple and aggravated! assault, yet he did not in the charge instruct the jury as regards the reasonable doubt in favor of defendant as between the two degrees;- and while a failure to do this would not present error in and of itself alone, yet if he had so done, the error in failing to give appellant’s special charge,in which he requested the court to charge the jury that, if the difficulty between appellant and Mr. Howell arose over provocation arising at the time, the defendant would not be guilty of an aggravated assault. The testimony offered in behalf of defendant raised the issue that he went to the place where Mr. Howell and -another were engaged in a fight, not knowing who they were, and, when he approached, Mr. Howell accused him of inciting the fight between himself and Watkins, and the fight between appellant and the prosecuting witness grew out of this matter — a sudden quarrel, ill feeling already existing between them, and a fight with no premeditation. It is true that the state’s evidence would sustain a finding that the assault was premeditated, and in a measure deliberate; yet, the issue being in the case, the court should have in some way clearly instructed the jury the distinguishing features between aggravated and simple assault under the section of law upon which the prosecution was based.

As the case will be reversed, we will not discuss the testimony further than to say that the testimony is sufficient to sustain aggravated assault, if the jury should so find upon a fair submission of the issues; but we do not think the court should have permitted state's counsel to ask each witness for the defendant if they had not been drinking that day, and if they had not drunk with appellant. If the state had proposed to follow it up with testimony that they had drunk with appellant, when they 'denied it, and it was on account of their friendly relations with appellant they were testifying as they did, as affecting their credit, it might be admissible. Yet after asking these questions and eliciting that they had taken a few drinks that day, a matter with which appellant was in no way connected, and then ask them if they had not drunk with appellant, and, when denied, pursue it no further, would ■ incline one to the opinion that it was but an effort to prejudice a jury, in a prohibition county, against appellant and some of his material witnesses.

Again we cannot see as to what issue in the case it was material as to whether or not appellant had a bottle of whisky in his store that day, as the fight did not take place in the store, nor near it; nor how it was material as to whether appellant had in fact taken a drink or two that day. It is not contended that he was intoxicated at the time of the fight, nor so drunk he could not intelligently detail what occurred, nor that this fight grew out of or was about the drinking of any whisky. Appellant contends that all this testimony was calculated to prejudice the jury against him, and, from the amount of the punishment assessed, it seems that this, or some other circumstance not disclosed by this record, did cause them to assess a most unusual punishment for this character of offense, a fine of $750. As under the facts in this case this testimony was inadmissible, and may have contributed to the punishment fixed, we cannot say it was harmless error, and on another trial it will not be admitted, unless the state expects in some way to connect it up with the transaction for which appellant is on trial. There are several bills relating to this matter, but we do not deem it necessary to discuss each of them.

It is useless to discuss the motion for a continuance, as appellant will have ample time to secure the attendance of the witnesses upon another trial.

The fact that another person struck Mr. Howell would be immaterial, unless it is expected by circumstantial evidence or otherwise to show an acting together between the parties. Appellant would not be responsible for the acts of the third person, not named in the record, unless the law would make them principals in the assault. If it was intended to show that áppellant did not inflict the injuries on the head, it might be admissible for that purpose; but appellant offered none of this testimony, and under the evidence before us it was inadmissible on behalf of the state, and the objections of appellant should have been sustained, and on another trial it will be excluded-; unless the state expects to show that the parties were acting together in the assault on Mr. Howell.

We do not deem it necessary to discuss the other bills, as the matters herein ruled upon sufficiently applies the law to them, and on another trial the court will be governed thereby.

The judgment is reversed, and the cause remanded.


text:
    CHANT v. STATE.
    (No. 2903.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied May 6, 1914.)
    1. Criminal Law (§ 575) — Special Terms-Authority to Call.
    The district court, complying with Rev. St. 1911, arts. 1718-1726, has authority to call a special term for the trial of a murder case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1294-1296, 1377; Dec. Dig. § 575.]
    2. Criminal Law (§ 364) — Evidence—Self-Serving Declarations.
    Where accused left the place where- he killed decedent, and later in the night went to the home of a third person and called a justice of the peace over the phone, his statements made to the third person and to the justice were inadmissible as self-serving declarations, and were not a part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    3. Criminai, Law (§ 957) — Verdict — Impeachment by Juror.
    A juror may not impeach the verdict, after it has been accepted by the court and the jury discharged, by proving that he. yielded his judgment in an effort to agree with the other jurors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    4. Homicide (§ 340) — Instructions — Review.
    Where accused was convicted of murder in the second degree, objections to charges on murder in the first degree will not be considered on appeal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Homicide (§ 309) — Instructions — MANSLAUGHTER.
    Where accused and his sister went at night, armed, to the home of decedent, with the intent to take by force or stealth a daughter of -the sister, who had eloped with and married a son of decedent, and during the difficulty accused shot decedent, and accused insisted that the killing was accidental, the issue of manslaughter was not raised, but the question was whether accused was g'uilty of murder in either degree, or of negligent or accidental homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    6. Criminal Law (§ 1059) — Instructions— Exceptions — Sufficiency.
    An exception that the court erred in failing to submit the law of manslaughter is too general to call for review of the question whether the evidence raised the issue of manslaughter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.]
    7. Homicide (§ 305) — Evidence — Instructions.
    Where accused accompanied his sister at night to the home” of decedent to take, by force or stealth, the sister’s daughter, who had eloped with and married decedent’s son, and accused shot decedent while attempting to enter the home, and he claimed that the killing was accidental, the court, in submitting the issue of. negligent homicide, properly charged on conspiracy by defining a conspiracy, and stating that each party to a conspiracy was responsible for any offense committed in furtherance of the common purpose.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. § 305.]
    8. Homicide (§ 62) — “Negligent Homicide” in Second Degree.
    Where accused engaged with another in the unlawful act of trying to take the wife away from the home of her husband by force or stealth, at night, and accused, in furtherance of the unlawful purpose, while trying to force himself into the house, killed decedent and accused claimed that his gun was accidentally discharged, he was guilty of negligent homicide of the second degree, within Pen. Code 1911, arts. 1113-1127.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 85; Dec. Dig. § 62.

    For other definitions, see Words and Phrases, vol. 5, p. 4766.]
    9. Criminal Law (§ 854) — Separation of Jury — Grounds for New Trial.
    Where, during the trial of a homicide case, a juror became sick at night, and a physician was called to prescribe for him in the presence of an officer, and, with the consent of accused’s-counsel, he was placed on a cot in the court room while the other jurors were in the jury room, and, while he was lying on the cot, relatives saw him in the presence of the officer staying with him, there was no such separation of the jury as to authorize the setting aside of conviction, in the absence of anything improper occurring.
    [Ed. Note. — For other eases, Law. Cent. Dig. §§ 2039-2047; 854. see Criminal Dec. Dig. §. 854]
    Appeal from District Court, Edwards County; R. H. Burney, Judge.
    Will Chant was convicted of murder in the second degree, and he appeals.
    Affirmed.
    W. A. Morriss, of San Antonio, and Cornell & Wardlaw, of Sonora, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was indicted, charged with the murder of Mary Connell, at the regular June term of the district court of Edwards county, 1913. Thereafter, on July 13th, Hon. R. H. Burney, judge of said court, called a special term of the district court of Edwards county to convene on August 11, 1913, for the trial and disposition of this and four other cases named in the order convening court, giving notice, etc., complying in-every detail with the law authorizing special terms of the district courts to be held. Chapter 4, tit. 34, Rev. St. 1911.

Appellant contends that the district court had no authority to call a special term of the district court, and that the arraignment and trial of him at this special term was unauthorized and void. This question has been passed on so often adversely to appellant’s contention we deem it unnecessary to discuss it again. Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98; Ex parte Boyd, 50 Tex. Cr. R. 309, 96 S. W. 1079; McIntosh v. State, 56 Tex. Cr. R. 134, 120 S. W. 455; Boyd v. Texas, 209 U. S. 539, 28 Sup. Ct. 570, 52 L. Ed. 917.

Appellant, after he had shot and killed Mrs. Connell, intentionally, as contended by the state, or accidentally, as contended by him, left the place where the killing occurred, and later in the night went to the home-of Frank Kelly and called Mr. Miller, justice of the peace, over the phone, and talked to him, and he desired to prove by witnesses what he then said to the justice of the peaeeabout the homicide, which testimony was objected to by the state on the ground that it was self-serving, and not res gestae of the transaction. The court did not err in sustaining the objection, for it would have been but a self-serving declaration, and took place-so long after the difficulty and under such circumstances as not to come within the rule-governing res gestae statements; in fact, appellant does not contend that it does, and in the bill nor in the brief does he state upon what grounds he believed the testimony should be admitted, he merely stating that he excepted to the ruling of the court in sustaining the objection of the state. For the same reasons the statement made to Frank Kelly at the same time and place would not be admissible. However, in the record it appears that later the court did permit Mr. Kelly to testify what appellant told him on that occasion.

The only other two bills of exception in the record relate to the" refusal of the court, on hearing of the motion for a new trial, to permit jurors Clark and Crausbay to testify that they, in fact, believed appellant’s theory of the case, and that they agreed and consented to the verdict rendered, and yielded their judgment in an effort to compromise and agree with the remainder of the jury. A juror is not permitted thus to impeach his verdict after it has been rendered and accepted by the court, and the jury discharged.

As appellant was convicted of murder upon implied malice, or, as formerly defined, murder in the second degree, we will not notice those portions of the motion for new trial and objections to the charge relating solely to those parts of the charge defining and submitting murder upon express malice, or murder in the first degree.

The evidence in this case did not call for a charge on manslaughter. The facts would show that Will Connell, a son of deceased, eloped with and married Ruby Wilson, a daughter of Mrs. Mollie Wilson. After the marriage Mrs. Wilson, in some way, secured possession of her daughter, and carried her to San Antonio. Will Connell’s father went to San Antonio, and Ruby returned with him, and she and Will Connell resumed their relations as husband and wife. When the district court of Edwards county convened some weeks later, Mrs. Wilson accompanied by her brother, appellant, Will Chant, went to the county seat and sought the district attorney in an effort to have Will Connell indicted for swearing falsely to obtain marriage license. She was informed by the district attorney that the grand jury would not indict Will Connell, and that, if they did, under the evidence, so far as he knew, he could not obtain a conviction, and he says he advised her to let the matter drop. She asked if the marriage could not be annulled, and he declined to advise her, and referred her to other attorneys. The only difference in the testimony for the state and defendant up to this point is that the defendant claims that the district attorney told Mrs. Wilson the marriage could be annulled. But, be this as it may, no proceedings were instituted to annul the marriage, and no other attorney visited by Mrs. Wilson that day, but she and her brother, appellant, left the county seat to return to their home. After getting to the house of appellant, he got out, and Mrs. Wilson went over to her home. Some time later appellant leaves his home, goes by the residence of his half-brother, Luther Roberts, and borrows a Winchester rifle and a box of cartridges, and then goes to the home of Mrs. Wilson. The state’s testimony shows: That later in the night, after the Connell family had retired and was asleep, Mrs. Wilson appeared in the room in which Will Connell and his wife, Ruby, were sleeping, with a shotgun loaded with buckshot. The noise she made awoke Will Connell, who sprang out of the bed and grabbed the gun by its barrels, and he and Mrs. Wilson began a scuffle for the possession of the gun, when Mrs. Connell called: “Will, come here.” Mrs. Mary Connell, and her daughter, Allie, had been awakened by this time, and, as appellant came running to the door, he was met by Mrs. Mary Connell, Mrs. Ruby Connell, and Miss Allie Connell, who would not let let him enter the house, and told him that Will Connell was not going to hurt Mollie. That appellant, Will Chant, then caught hold of Mrs. Mary Connell, jerked her out of the door, and off the gallery, and then shot her. We do not deem it necessary to go into further details.

Appellant admits that he went to the home of Mrs. Wilson that night, and went by Luther Roberts and got his gun; however, he says that Mrs. Wilson was moving to his home, and he went there to get the remainder of the chickens, and, as they were wild, he got the gun and carried it to kill the chickens, as some of them were wild; that he knew nothing of Mrs. Wilson’s intention to go to the Connell home that night until he arrived at her home, when -he tried to dissuade her from going that night, but she insisted on going, and he thought it his duty to go with her; that on the why to the Connell home he again tried to get her to wait until the next day, when he would go with her in an effort to get Ruby to return to her mother, but Mrs. Wilson would not consent, saying if she could get her hands on Ruby she would come. They went to the Connell house, and he stopped a piece from the house, his sister going on in the house. He then heard her call, “Will, O Will, come here; they are killing me;” and he ran to the house, where he was met by Mrs. Mary Connell, Ruby, and Allie, and Mrs. Mary Connell pushed him back out of the house and off the gallery, and, as she did so, he stepped on something that caused him to stagger, when the gun was accidentally discharged. However, on cross-examination, he admitted that, after this shot, he fired intentionally a second time at what he took to be a fleeing person.

It is thus seen that the state’s evidence would make a plain case of Mrs. Wilson and appellant arming themselves, and, in the dead hours of night, visiting the home of the Connells, with the intention of by force taking the wife of Will Connell away from him; that, while Mrs. Wilson went in the house, he stopped outside to watch, and when she called he rushed in to take part in the unlawful mission, and, being denied admittance, he jerked the older of the ladies, Mrs. Con-nell, out of the door and killed her, and, as the Connells fled, he took a shot at what he thought was one of the fleeing Connells, and, if this state of facts is found by the jury to be true, it presents the issue of murder, and murder alone. Appellant’s contention is that he went unwillingly, trying to dissuade his sister, and stopped outside, not to watch, but only to wait until-his sister performed her mission, and then escort her and Ruby home, if she succeeded in getting Ruby, and he only went to the house in answer to her call; that the killing was purely accidental, and the gun discharged by him stumbling when pushed back by Mrs. Mary Connell. This evidence presents accidental homicide, and the testimony as a whole also presents the issue of negligent homicide, both of which were submitted by the court to the jury, and under no theory is the question of intentional shooting under the influence of sudden passion, etc., produced by an adequate cause, presented; therefore the court did not err in failing to charge on manslaughter.

No special charge was asked in regard to this matter, and the only way it is raised is in the general -Way: “The court erred in failing and refusing to submit to the jury the law of manslaughter.” This has been held to be too general to bring the question before us for review; however, as herein-before shown, we have fully considered it, and hold that the court did not err in so doing.

The main complaints as to the charge are directed at the following paragraphs: “You are instructed that by the term ‘conspiracy,’ as hereinafter used in these charges, is meant a combination and agreement between two or more persons to commit a crime or to do some other unlawful act, the furtherance and carrying out of which will reasonably and probably result in the commission of an offense, and all parties uniting or acquiescing in such agreement and combination are conspirators, and each party to any such conspiracy is responsible in law for the acts of his coconspirators, or for any offense which may be committed by any party thereto in the furtherance of a common design or purpose of the conspiracy, or that which is necessarily incident to and grows out of such common design, and follows as one of its natural and probable consequences. A conspiracy may be established by either direct or circumstantial evidence, or both, and it is not necessary, in order to warrant a finding that a conspiracy existed, for the state to show that parties thereto ever actually, in fact, entered into a formal agreement to commit the unlawful act; it is sufflcient if the evidence satisfactorily shows the performance of different acts and parts of a co-design to acquiesce in and done in the furtherance thereof.” It is contended that the evidence does not authorize a charge on conspiracy to 'commit an unlawful act. We do not think any one can contend that the act admitted and shown to have been the object of this night visit to the Connells was not an unlawful one; the object was to, by stealth or force, take the wife of Will Con-nell, Ruby, away from him. They had that day visited the county seat for the purpose of attempting to send Will Connell to the penitentiary and thus separate them, and, failing in this, if for any reason the marriage could have been annulled, instead of taking legal steps to do so, the evidence would at least circumstantially show that they determined to take the law into their own hands, and by stealth or force take Con-nell’s wife away from him, and the dark hours of night selected to accomplish this purpose. While appellant would by his testimony show an innocent participation therein, yet the facts and circumstances introduced by the state would authorize a jury to find that his explanation of his acts on this occasion is an afterthought It was necessary to give this definition that the court’s charge on negligent homicide could be intelligently understood by the jury, and this charge, too, the court properly submitted, and appellant’s contention that no such issue was raised cannot be sustained.

Even if the gun was accidentally discharged, if he and his sister were engaged in the unlawful mission of trying to take Con-nell’s wife away from the home of her husband by stealth or force, one being armed with a rifle and the other with a shotgun loaded with buckshot, and, in the furtherance of that unlawful purpose, while he was trying to force himself in the house, his gun was accidentally discharged, this would bring the case within the purview of chapter 14, tit. 15, of the Penal Code, defining negligent homicide of the second degree. If the court had not submitted that issue, appellant would have just cause of complaint, for he would then have contended that, as the facts showed he was accompanying his sister on an unlawful mission, the jury would not likely be willing to relieve from' all punishment the person who had taken the life of a woman against whom neither of them had cause for complaint, and the court ought to have given them an opportunity to assess against him this minor punishment.

As to appellant’s contention that he in no wise aided or encouraged his sister in this unlawful mission, and that the killing was purely accidental, while he was guilty of committing no unlawful act nor attempting to do so, the court fully and fairly submitted that theory of the case to the jury, and they find against him. The court instructed the jury: “Homicide is excusable under the law when the death of a human being happens by accident, though caused by the act of another who is in the prosecution of a lawful object by lawful means. If, therefore, you find from the evidence that on or about the time alleged in the indictment, in Edwards county, Tex., one Mollie Wilson, for the purpose of taking her daughter, Ruby Connell, away from her husband, Will Con-nell, went to the house where the said Will Connell was living, and you further find that the defendant Will Chant followed her to the said premises for the purpose of trying to persuade her, the said Mollie Wilson, not to attempt to take the said Ruby Connell, or even if you find that the said Mollie Wilson, went there for the purpose of killing Will Connell, but that the defendant did not enter into any agreement to assist her in any such unlawful purpose, but merely followed her for the purpose of trying to persuade her to desist from any such unlawful purposes, if any, and that, failing in this, he stopped outside of the premises where the said Will Connell and his wife were staying, and that thereupon the said Mollie. Wilson went into the house where the said Will Connell and his wife were staying, and thereupon a struggle ensued between the said Mollie Wilson and said Will Connell over a gun, which the said Mollie Wilson was armed with, if any,'and, while engaged in said struggle over the possession of the said gun, if any, between the said Mollie Wilson and the said Will Connell or others, the said Mollie Wilson called to the defendant to come to her assistance, and that thereupon the defendant rushed to the scene where the struggle was taking place, and that, after reaching there, and while attempting to go to where the said Mollie Wilson was, the defendant unintentionally and accidentally discharged his gun and shot and killed the said Mary Connell, then, in case you so find the facts to be, or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict ‘not guilty.’ ” Not only did they find against him on this contention made by him, but they find evidently, knowing the unlawful mission of Mrs. Wilson, he aided and abetted her therein, and that, while the killing of Mrs. Mary Connell was not a part of the mission, yet, in an attempt to take Mrs. Ruby Connell away from her home, appellant intentionally killed Mrs. Mary Connell; for they find him guilty of murder, and assess his punishment at ten years’ confinement in the penitentiary, and the evidence offered by the state’supports such a finding. The other criticisms we do not deem it necessary to discuss.

During the trial jnryman Crausbay became sick, and at night a physician was called, who prescribed for him in the presence of an officer. The next morning he was too unwell to proceed with the trial, and he was laid on a cot in the court room, while the other jurymen were in the jury room. This was agreed to by appellant’s counsel. While he was lying on the cot, his aunt, Miss Winn, in the presence of the court and sheriff, approached the cot, inquired as to his condition, and offered to prepare him something to eat. Later Miss Winn returned with a bowl of soup and gave it to him in the presence of the officer staying wi.th him. Appellant, in his motion for new trial, complains of all these matters, and the court heard evidence thereon. We have read this testimony, and hold, as did the trial court, that nothing improper occurred, and that this was not such a separation of the jury as would authorize a reversal of the ease. In the afternoon the juryman was able to proceed with the trial, and it is not asserted nor contended by appellant this influenced his action as a juryman, or that anything improper was said, and the evidence, and all the evidence, shows that not to be the facts.

" The judgment is affirmed.


text:
    EDWARDS v. STATE.
    (No. 3063.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    1. Indictment and Information (§ 137)— Motion to Quash — Evidence Before Grand Jury.
    The character of testimony or the quantum of proof had before the grand jury cannot be inquired into on motion to quash the indictment.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    2. Bigamy (§ 9) — Evidence—Marriage License and Return.
    An original marriage license, with the return thereon showing the marriage, having been filed and recorded in the county clerk’s office, according to law, is admissible on a prosecution for bigamy; it having been filed with the papers in the case, and a copy thereof served on defendant at the previous term.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]
    3. Witnesses (§ 268) — Cross-Examination.
    Cross-examination of a witness for defendant in bigamy, his alleged second wife, held legitimate on the issue of whether or not she was married to defendant by a certain person on a certain date.
    [Ed. Note. — For other cases, see Witnesses^ Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    4. Criminal Law (§ 761) — Instructions— Assuming Facts.
    The charge in bigamy, that if the jury find and believe from the evidence that on a certain date defendant married G., and then and there had a former wife, T., then living, and that said former marriage had been lawfully solemnized, does not assume as a fact the former marriage, leaving to the jury only the question of it having been lawfully solemnized.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    5. Criminal Law (§ 841) — Instructions— Time for Objection.
    Under the present law, objections to the charge must be made at the trial, when it is submitted to counsel, and cannot be made for the first time in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2022; Dec. Dig. § 841.]

      6. CRIMINAL Raw (§ 814)—Instructions— Issues.
    A charge as to defendant in bigamy having been divorced from his first wife at the time of the second marriage is uncalled for; there being evidence only of divorce subsequent thereto.
    [Ed. Note.—Epr other cases, see Criminal Law, Cent. Dig. §§ 1821, 1838, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    Appeal from District Court, Dickens County; Jo A. P. Dickson, Judge.
    Earnest E. Edwards was convicted of bigamy, and appeals.
    Affirmed.
    Woodruff, Christian & Woodruff, of Sweetwater, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of bigamy; his punishment being assessed at two years’ confinement in the penitentiary.

In the first bill of exceptions it is shown that appellant moved to quash the indictment on the ground that Mrs. Nora Edwards, who was alleged to be the first wife of defendant, was permitted to testify before the grand jury. It has been so often held that the courts will not inquire into the character of testimony, nor the quantum of proof had Before the grand jury, we do not deem it necessary to discuss this question. Morrison v. State, 41 Tex. 516; Dockery v. State, 35 Tex. Cr. R. 489, 34 S. W. 281; Chapman v. State, 49 S. W. 587; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Crain v. State, 14 Tex. 634; Terry v. State, 15 Tex. App. 66; Jacobs v. State, 35 Tex. Cr. R. 410, 34 S. W. 110; Kingsburg v. State, 37 Tex. Cr. R. 264, 39 S. W. 365; Choice v. State, 114 S. W. 137. In these cases, especially in the cases of Dockery and Buchanan, supra, the very question here presented is passed upon. That the indictment in this ease was sufficient to charge the offense, and not subject to any of the objections urged by appellant, is shown by the decisions of this court in the following cases: Esser v. State, 66 S. W. 776; May v. State, 4 Tex. App. 424; Bryan v. State, 54 Tex. Cr. R. 19, 111 S. W. 744, 16 Ann. Cas. 515; Vinsant v. State, 42 Tex. Cr. R. 413, 60 S. W. 550; McAfee v. State, 38 Tex. Cr. R. 127, 41 S. W. 627. The insistence of appellant that these cases should be overruled cannot be sustained, for appellant by the indictment is sufficiently informed of the offense for which he must stand trial.

The next objection of appellant, as shown by bill of exceptions No. 2, is to the introduction of the marriage license, and return thereon, wherein it is shown that appellant on the 1st day of February, 1906, was married to Miss Nora Youngblood—his first wife. The license introduced in evidence was the original license, with the return thereon. It shows that appellant was married to Miss Youngblood on February 1, 1906, by G. W. Goin, M. G., and had been returned to the county clerk and duly recorded on the 16th day of February, 1906. It had been filed with the papers, in the case, and appellant served with a copy thereof at the previous term of the court. The court did not err in admitting the original license and return thereon in evidence under the facts in this case, as it had been duly filed and recorded in the office of the county clerk in accordance with the provisions of law. In addition to this, this marriage of appellant was amply proven by a brother of his first wife, who witnessed the ceremony.

The state also introduced the marriage license and the return" thereon showing that appellant was married to Miss Hattie Green on the 8th day of August, 1908; W. O. Ballard, county judge, performing the ceremony. Judge Ballard was dead at the time of this trial, but the county clerk and Misses Willie Ballard and Lois Jay testified to the issuance of the license, and the second marriage. Appellant then introduced his second wife, née Miss Hattie Green, who at his instance testified: “My name is Mrs. Earnest E. Edwards. This defendant, Earnest E. Edwards, is my husband. I will state that on or about the 8th day of August, 1908, in Dickens county, Tex., or at any other time, W. O. Ballard as county judge of Dickens county, Tex., did not perform a marriage ceremony between myself and my husband, Earnest E. Edwards.” The state on cross-examination was permitted to elicit the following testimony from her: “Mr. Edwards and I have lived together as husband and wife since Saturday, this last Saturday. I have two children By Mr. Edwards. They are something over two years old. Both of them are living. I only have two by him, and they are both the same age; they are twins. There is no children dead. I think we were living in Ft. Worth when this first child was born; I do not remember the year. I only have two children, and they are twins. I think I was here in Dickens August 8,1908, with Earnest E. Edwards, and I occupied the same room with him that night at the hotel; but we were not joined in marriage that night by Judge Ballard, but I did occupy the same room with him. I occupied the same room with him when I was not married because it suited me. I do not remember how long-we lived together after that, nor do I remember the places. Mr. Edwards showed me some license that evening, I think the ones he got here for me and him to marry. Then I went with him to Judge Ballard’s. He showed me some license for us to marry, and we went to Judge Ballard’s, and he came out, but he did not perform the ceremony for me and him. It was performed last Saturday at Haskell, Tex. He did not use those marriage license I saw here at all. I did go with him over to Judge Ballard’s, and went to get married, and the reason we did not get married he said there was not any witnesses present and he could not legally marry us. The folks at his home that night were all in bed. The marriage ceremony was not performed that night. There was no marriage ceremony between us until last Saturday. We got ,the license at Haskell, Tex., and as well as I remember the county judge married us; but I have forgotten his name. Before I was married to Mr. Edwards, my name was Hattie Green. After we left here that morning we went to my sister’s after that some time. While I was there at my sister’s in Stonewall county, it seems like I did see the sheriff of Stonewall county. At that time I do not remember telling him that in Dickens county, or Dickens, I had been married to Mr. Edwards and that Judge Ballard married us.” This was legitimate cross-examination on the issue of whether or not she was married to appellant by Judge Ballard on August 8, 1908, and the court did not err in so holding.

This ease was tried in December, 1913, after the law requiring that objections shall be made in writing to the charge at the time of the trial had become effective. The charge was submitted to appellant and his counsel before being read to the jury, and the only objections made to it are as follows: “That said former marriage of the said Earnest E. Edwards to the said Nora Young-blood had been lawful in Knox county, Tex., on the 1st day of February, A. D. 1906, as alleged, ‘for the reason that said paragraph of said charge, and in that part of said paragraph of said charge as hereinafter quoted, and the court assumed and virtually told the jury that the defendant, Earnest E. Edwards, married Nora Youngblood in Knox county, Tex., on the 1st day of February, 1906, and that he instructed said jury in effect that if they believed the marriage was lawful that they should find the defendant guilty as alleged in the indictment. Defendant further excepts to said paragraph of said charge of the court, because it is upon the weight of the evidence, and in effect tells the jury that defendant was married to Nora Youngblood in Knox county, Tex., on the 1st day of February, 1906, which fact the state had not proven, and the court’s reference thereto is calculated to lead the jury to believe that in the court’s mind said‘marriage had been proven.’ ” The charge is not subject to this criticism, for the court instructed the jury that: “If you find and believe from the evidence beyond a reasonable doubt that the defendant, Earnest E. Edwards, on or about the 8th day of August, A. D. 1908, in the county of Dickens and state of Texas, did marry Hattie Green, and the said defendant, Earnest E. Edwards, then and there had a ■ former wife, to wit, Nora Edwards, formerly Nora Youngblood, before her alleged marriage to the said Earnest E. Edwards, and that she, the said al-' leged former wife, was then and there living at the time Of the alleged marriage of the said Earnest E. Edwards to. the said Hattie Green, and that said former marriage of the said Earnest E. Edwards to the said Nora Youngblood had been lawfully solemnized in Knox county, Tex., on the 1st day of February, A. D. 1906, as alleged, you will find the defendant, Earnest E. Edwards, guilty as alleged in the indictment, and assess his punishment at confinement in the penitentiary for not less than two nor more than five years.”

While in the motion for a new trial appellant complains of the charge in other respects, and of the failure of the court to give some special charges requested, the law as written for the government of this court provides that objections to the charge must be made at the time it is submitted to counsel, and complaint can no longer be made for the first time in the motion for a new trial. However, we are of the opinion that the charge as given is not subject to the criticisms of appellant. While it is true that the special charges requested submitted an issue not included in the court’s charge, that is, if appellant had been divorced from his first wife at the time of his marriage to Hattie Green, he would be guilty of no offense. This is the law, and if the evidence had called for a submission of that issue it would have been error not to do so. The evidence shows that he married Hattie Green August 8, 1908, while the divorce proceedings were not instituted by his first wife until in the year 1913, between four and five years after he was married to the second wife by Judge Ballard, if he married them, and under such circumstances no such charge was called for by the evidence.

The judgment is affirmed.

DAVIDSON, J., absent at consultation.


author: PRENDERGAST, P. J.

text:
    CUNNINGHAM v. STATE.
    (No. 2994.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    1. DISORDERLY HOUSE (§ 16) — EVIDENCE — Admissibility.
    On a trial for keeping a disorderly house, evidence that some time before the date of the alleged offense accused had beer in an ice box in such house, and that parties were drinking beer there, was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    2. Criminal Law (§ 1169) — Harmless Error — Admission of Evidence.
    The erroneous admission of testimony is not cause for reversal, where other testimony to the same effect is not objected to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]

      3. Criminal Law (§ 1137) — Review—Invited Error.
    Accused could not complain of the answers the witness in direct response to her own questions on his cross-examination.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. 1137.]
    4. Criminal Law (§ 1120) — Appeal—Burden op Showing Error.
    On a trial for keeping a disorderly the admission of evidence that an officer to a witness that there was something crooked there, referring to accused’s place, was not ground for reversal, where the bill of exceptions did not state facts from which it could be intelligently determined whether or not it was admissible. house, stated
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    5. Witnesses (§ 321) — Impeachment — Impeaching Own Witness.
    On a trial for keeping a disorderly house, the court properly refused to permit accused to impeach her own witness as to the man whom he saw in bed with accused, especially as it was immaterial; it appearing without question that two men were caught in bed with accused and another woman.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1094, 1099, 1100; Dec. Dig. § 321.]
    6. Criminal Law .(§ 811) — Instructions— Singling out-Testimony.
    On a trial for keeping a disorderly house, an instruction that, even if the jury believed, beyond a reasonable doubt, that on occasions before the filing of the complaint and information two men named were at the house and in rooms with women, each of whom were prostitutes, and had gone there for the purpose of engaging in illicit sexual intercourse, yet if the jury had a reasonable doubt as to whether defendant knew of their presence, they could not convict defendant for the acts of such parties, was properly refused, as it is not proper to single out any part of the testimony and charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    7. Criminal Law (§ 834) — Instructions Bad in Part.
    ■ On a trial for keeping a disorderly house, where one paragraph of a requested instruction was improper, the court was(under no obligation to modify it by striking out such paragraph, and giving the other, even if the other paragraph was proper.
    [Ed. Note. — For other eases, see Criminal Law. Cent. Dig. §§ 2013, 2014; Dec. Dig. § 834.]
    8. Criminal Law (§ 829) — Instructions Covered by Those Given.
    On a trial for keeping a disorderly house, an instruction that accused could not be convicted, unless the jury believed, beyond a reasonable doubt, that she knowingly permitted prostitutes to resort and reside to such house for the purpose of plying their vocation, or unless she kept such house for the purpose of prostitution, was sufficiently covered by instructions requiring her conviction, if the jury be-, lieved, beyond a reasonable doubt, that she unlawfully kept, or was concerned in keeping, a house where prostitutes were permitted to resort or reside for the purpose of plying their vocation, or as a house kept for the purpose of prostitution, that the burden of proof was on the state, that accused was presumed to be innocent until her guilt was established by legal evidence beyond a reasonable doubt, and that proof that the house had the reputation of being a house of prostitution was not sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Disorderly House (§ 20) — Instructions.
    On a trial for keeping a disorderly house, an instruction that the jury must believe, beyond a reasonable doubt, that accused unlawfully and knowingly permitted prostitutes to resort or reside in such house for the purpose of plying their vocation, or that she unlawfully and knowingly kept such house for the purpose of prostitution, and in order to convict, and that though they believed that prostitutes did resort or reside there for such purpose, they could not convict, unless they believed, beyond a reasonable doubt, that accused had knowledge of their character, and knowingly permitted them to ply their vocation there, was properly refused, since it is necessary only for the state to prove such facts as would put her upon notice and inquiry .which, if followed up, would result in knowledge.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 31; Dec. Dig. § 20.]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    Hattie Cunningham, alias Mackey, was convicted of keeping a bawdyhouse, and she appeals.
    Affirmed.
    El. J. Gibson, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted for keeping a bawdyhouse, and the punishment prescribed by law assessed against her.

Our statute (article 500, P. C.) is that any person who shall directly keep a bawdy-house in any house, or shall knowingly permit the keeping of a bawdyhouse in any house, owned, leased, occupied, or controlled by him, shall be deemed guilty of keeping or knowingly permitting to be kept, as the case may be, a bawdyhouse, and on conviction shall be punished, etc. A bawdyhouse is defined (article 496, P. C.) as one kept for prostitution, or where prostitutes aré permitted to resort or reside for the purpose of plying their vocation.

The uncontradicted evidence shows that appellant was running, keeping, and had been running and keeping since some time in November, 1912, the upstairs of a certain house, containing several rooms, which was the second story over a saloon in Dallas; that she resided there herself during all this time and up to August 14, 1913, the date she is charged with this offense; that said upstairs had a back, or rear, and a front entrance. Several police officers testified that they knew the general reputation of appellant and of said house while she kept it, and that her general reputation was that of a prostitute, and that her said house had the reputation of being kept as a house of prostitution. She neither denied that her house had that reputation, nor that she did not know that it had such reputation. Some of the officers also testified that very late on the night of July 1, 1913, they caught Byron Dunlap and Laura Harris in bed together in one of these rooms. The woman was un-' dressed, and the man had on his nightdress. These officers swore that this Harris woman’s general reputation was that of a common prostitute, and that she had formerly been in the old “Reservation”; that on this occasion, when they caught these two parties, they aroused the appellant, and at the time she and a man by the name of Loving were together in another one of the rooms; that, when they aroused her and Loving, Loving said to them, “We have got you beat this time;” appellant took it all as a joke; that she and Loving had a pillow on the floor, and the officer felt it, and it was warm, as if somebody had been lying on it. Among other inmates of the house was a Mrs. Young. Some of the witnesses testified that they knew her general reputation for virtue and chastity, and it was bad. Also among other inmates of the house was a Mrs, Tulloss. She stated to one of the officers that the house was getting such a bad name she was going to get another place to stay. Another of the women who was found there was Mrs. Riley, and she told the officers that her husband would kill her if he found she was there. On another occasion at night the officers found a woman, Flossie Thompson, in one of the rooms with a man, and she was partially undressed at the time, and considerably under the influence of liquor, if not drunk, and that at the time they found a lot of empty beer bottles lying around in the room. It seems this woman’s general reputation was that of a common prostitute. On another occasion the officers caught another woman up there who was drinking, cursing, and using very vulgar and indecent language. She had stayed there the night before. Appellant was present when they caught this woman there. She claimed she was trying to get the woman to leave, and did afterwards get her to leave. At this time the appellant herself rolled and smoked a cigarette in the presence of the officers. She denied this; but two of the officers swore she did. Some of the officers testified that appellant had in one of these rooms a regular little bar— counter and fixtures — that she had glasses for drinking the beer and whisky, and from time to time they saw that she had both beer and whisky there, and on one occasion at least they found that several of these men and women were up there drinking and carousing. Some of the officers who watched the place at night for some time before the date on whicíh the offense is charged saw men and women, couples, late at night going to and from her house, and they also saw men and women late at night alone going to and from appellant’s house. These parties thus seen were not claimed to be regular roomers in the house. About 3 or 4 o’clock at night on the date on which this offense is alleged to have been committed, the officers raided the house. When they first went up they looked over the transoms in two rooms. In one of the rooms appellant was in bed with one man, and in another Mrs. Young in bed with another. The parties were all undressed. After making the investigation, and ascertaining the facts, they demanded admittance. As soon as aroused appellant got out of the bed with the man she was with and went into the other room, aroused the man who was in that bed with Mrs. Young, he went in the room and got in the bed with the man she had been in bed with, and she got in bed with Mrs. Young. Then the officers were admitted. The officers arrested and carried all the parties to headquarters.

Appellant has some bills of exceptions and complaints to the refusal of the court to give some of her special charges. It is unnecessary to discuss all of these matters. In her brief, while she states she does not waive any of them, she presents only some of them, which we take to be the material ones, and we will discuss only those. The others pre.sent no reversible error.

By her fourth bill she complains that the court erred in permitting Mr. Scott, one of the police officers, to testify that in April or May he was at her place, and that there were three cases of beer in an ice box there at the time and that the parties at said place were drinking a lot of beer. The bill is wholly insufficient to require the court to review the question; but, if we could, this character of testimony in this character of case is clearly admissible. Hickman v. State, 59 Tex. Cr. R. 88, 126 S. W. 1149; Wimberly v. State, 53 Tex. Cr. R. 11, 108 S. W. 384; Finn v. State, 60 Tex. Cr. R. 522, 132 S. W. 805; Robbins v. State, 60 Tex. Cr. R. 523, 132 S. W. 770; Wilson v. State, 61 Tex. Cr. R. 628, 136 S. W. 447; Sullivan v. State, 61 Tex. Cr. R. 657, 136 S. W. 456; Novy v. State, 62 Tex. Cr. R. 496, 138 S. W. 139. It is needless to cite other authorities. Besides, there was much other proof of the same character of testimony, not objected to at all by appellant. As said by this court in Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169: “It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to” — citing several cases.

In her fifth bill she complains of testimony of said Scott which was directly drawn out by her in cross-examination. The bill is wholly insufficient to authorize us to review the question; but, if we could, the record would show that this witness had testified about seeing said Mrs. Young and another woman going out late at night from appellant’s house with other men, and that on cross-examination, when she was probing him to know how he knew, he explained how he got his information. This, instead of being against appellant, was for her, and certainly appellant cannot complain, as the ■court in liis qualification shows that the answers were in direct response to appellant’s own questions on her cross-examination.

By her ninth bill she complains that the witness Jim Roddy was permitted, over her objections, to state that another officer, who was with him at the time when they were near appellant’s place, remarked there was something crooked there, referring to her place. This remark may have been inadmissible; but the bill does not show it, nor does the bill show any such state of fact that we can intelligently determine whether it was or was not admissible.

Her eighth bill of exceptions is quite lengthy. From it we understand the appellant introduced, as her witness, Police Officer McLure and had him testify, in effect, that at the time he and the other officers made the raid on appellant's house and arrested her and the others, as shown above, it was not G. B. Loving whom he saw in bed with her. On cross-examination he said that he saw her in bed at the time with some man, but that he had since concluded that it was not Loving, but a Mr. Meyer. The record 'shows that the matter was thrashed out in the testimony of her witness McLure and Mr. Erwin, the other officer who was with him at the time. She sought to impeach her own witness, as the bill shows; but the court would not permit this. The court’s action was correct. Even if it had been shown that the said officer first thought it was Loving in bed with appellant at the time, and afterwards concluded it was not Loving but Meyer, would make no difference. There is no question but that, from the testimony of the two officers, the two men, Loving and Meyer, were caught in bed with the two women, appellant and Mrs. Young. It would make no difference which man was in bed with which woman. The point was whether the men were in bed with the women, or, as claimed by them, the women were together in one bed, and the men in the other, and all this matter, as stated above, was thoroughly thrashed out in the testimony. In no contingency, as we see it, was the court’s action wrong or injurious to appellant of which she can legally complain.

The only other question is the appellant complains that the court should have given two special charges, Nos. 1 and 2, shown by her bills 10 and 11.

The first of these charges is:

“In this case you are instructed, at the request of the defendant’s counsel, that, even if you believe from the evidence, beyond a reasonable doubt, that on two occasions and some time before the filing of the complaint and information, Jack Dunlap and Byron Dunlap were at the house alleged to have been kept by the defendant, and alleged to be a bawdyhouse, and that each of said Dun-laps were in a room in said house with a woman, and that said women were prostitutes, and had gone to said house for the purposes of engaging in illicit sexual intercourse, yet if you. have a reasonable doubt as to whether or not the defendant knew of the presence of said parties on said occasion, you cannot convict the defendant for the acts of said parties.
“The defendant cannot be convicted in this case, unless you find and believe from the evidence, beyond a reasonable doubt, that she knowingly permitted prostitutes to resort and reside to the house kept by her for the purpose of plying their vocation, or unless you believe that she kept said house for the purpose of prostitution.”

The other of said charges is:

“Before you can convict the defendant in this ease, you must believe and find from the evidence, beyond a reasonable doubt, that the defendant unlawfully and knowingly permitted prostitutes to resort or reside in the house occupied by her for the purpose of plying their vocation, or that she unlawfully and knowingly kept said house for the purpose of prostitution. Even should you believe from the evidence that prostitutes did resort to said house, or reside therein, for the purpose of plying their vocation, yet you cannot convict the defendant, unless you believe from the evidence, beyond a reasonable doubt, that she had knowledge of the character of said women, having knowledge of the character of said women, knowingly permit* ted them to ply their vocation at said house.”

We think neither of these charges should have been given. The court charged as follows: “If you find and believe from the evidence, beyond a reasonable doubt, that the defendant, in Dallas county, Tex., heretofore on August 14, 1913, or within two years prior to August 19, 1913, did unlawfully keep or was concerned in keeping a certain house then and there situate as a house where prostitutes were permitted to resort or reside for the purpose of plying their vocation, or as a house kept for the purpose of prostitution, then you will find the defendant guilty and assess her punishment,” etc. He also charged the burden of proof was upon the state, that she was presumed to be innocent until her guilt was established by legal evidence, beyond a reasonable doubt, and, in case they had a reasonable doubt as to her guilt, to acquit her. The court also gave one of appellant’s special charges to the effect that the jury could not convict appellant alone upon proof that the house she kept had the reputation of being a house of prostitution. etc. *

This court, in Lawrence v. State, 20 Tex. App. 536, said: “Whilst a court may qualify or modify an instruction which is asked so as to make it present the law as the court conceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous instruction, but may refuse it outright.”

Again, this court, in Sparks v. State, 23 Tex. App. 448. 5 S. W. 135, in construing our statutes on the subject of giving written requested Charges in misdemeanor cases, said: “This statute does not make it obligatory upon the court to prepare and give a written charge when requested to do so by the parties, but only requires the court to give or refuse such charges as are asked in writing. If charges are asked in writing, the court shall give or refuse them, with or without modification. But, if the court refuses such as are asked, it is not required to supplement them by any charges of its own; it may still, if it desires, decline to give any written charge in the case. In misdemeanors, the object and policy of the law seems to be to relieve the court of the burden and necessity of giving charges, unless the parties deem it necessary that such instructions as they may prepare in writing should be given. Such as are thus prepared may or may not be given. The court should not give instructions which it does not believe to be the law, and it is not even required to modify such charges, but may refuse them absolutely.”

In Hobbs v. State, 7 Tex. App. 118, this court discusses fully and gives the reasons for this doctrine, and has always adhered to it. For other cases, see those collated under section 842 and subdivision 6, section 813 of White’s Ann. C. O. P., and many eases decided since then by this court. Mealer v. State, 145 S. W. 353; Perkins v. State, 144 S. W. 244.

It is not proper, in this or any other case, for the court, either in his own charge, or at the request of an appellant, to single out any certain part of the testimony as was attempted to be done by appellant in the first paragraph of his charge No. 1, above quoted, and charge the jury thereon. Stratton v. State, 44 S. W. 506; Copeland v. State, 36 Tex. Cr. R. 575, 38 S. W. 210. For other authorities, see section 810, White’s Ann. C. C. P. As it was improper to give this part of his said special charge, clearly the court was under no obligation to strike that out and give the latter paragraph, even if it had been proper to have given the second paragraph alone. But, as shown above, the court’s charge substantially and fully embraced all of what was requested in this second paragraph.

What we have said about said first requested charge applies equally to the second. In addition, as to this latter, wherein it attempted to require, as a matter of law, that appellant had Tmoioledge of the character of the women, and that she Knowingly kept said house for the purpose of prostitution, it required more than the statute requires. It was not necessary, under the law, that she should Tmow the character of women who had illicit intercourse and plied their vocation in the house she kept, nor does the law require that she shall Tmowmgly keep a house for the purposes of prostitution. This charge ignores entirely the law that every person is presumed to know what is going on in his own house wherein he resides (Whitcomb v. State, 30 Tex. App. 269, 17 S. W. 258; Stokeley v. State, 37 Tex. Cr. R. 638, 40 S. W. 971) and that, in prosecutions for this character of offense, it is not incumbent on the state to prove absolute Tmoioledge of an accused, but simply to make such proof that, even if knowledge be necessary, it will be presumed from such a state of facts as would put the party upon notice and inquiry which, if followed up, would result in knowledge (Wells v. State, 22 Tex. App. 18, 2 S. W. 609; McGaffey v. State, 4 Tex. 156; Johnson v. State, 32 Tex. Cr. R. 504, 24 S. W. 411; Brown v. State, 48 S. W. 176; Wade on Notice, § 11; 13 Ency. of Ev. 543; Tucker v. Constable, 16 Or. 407-409, 19 Pac. 13).

No reversible error is shown, and the judgment will be affirmed.

DAVIDSON, J., absent at consultation.


text:
    TORES v. STATE.
    (No. 3088.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    On Motion for Rehearing, May 6, 1914.)
    1. Criminal Law (§ 1091) — Questions Reviewable — Bill of Exceptions.
    The overruling of a plea in abatement of the indictment on the ground of discrimination in the organization of the grand jury, and the overruling of a motion to quash a special venire on the ground of discrimination in the selection of jurors to prevent a fair trial, cannot .be reviewed on appeal, unless exceptions are reserved and the evidence on the hearing included in the bills of exception.
    [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. § 1091.]
    2. Criminal Law (§ 1091) — Questions Reviewable — Bill of Exceptions.
    Where the record of the election of a special judge was regular, the overruling of a plea in abatement of the indictment on the ground that lawyers not practicing in the court participated in the election of the special judge, who was a nonresident of the district, not supported by any evidence, cannot be considered on appeal.
    [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. § 1091.]
    3. Criminal Law (§ 1048) — Questions Reviewable — Bill OF EXCEPTIONS.
    Rulings on motions and pleas cannot be reviewed where accused reserved no exception to them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2656, "2657, 2670; Dec. Dig. § 1048.]
    4. Criminal Law (§ 603) — Continuance-Grounds — Absence of Witnesses.
    A continuance on the ground of the absence of a witness was properly denied, where accused did not state the facts the absent witness would prove, nor show the materiality of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    5. Criminal Law (§ 406) — Confession of Accused — Admissibility.
    Statements made by accused to a third person, who had been requested by the sheriff to look out'for accused, are admissible in evidence, where the third person did no act to lead accused to believe that he had authority to arrest him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    6. Ceiminal Law ' (§ 444) — Evidence—Admissibility.
    A county map, made by the land office, is properly received in evidence, though it had been torn in half and put together again.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    7. Criminal Law (§ 1091) — Rulings on Evidence — Review—Bill off Exceptions.
    A bill of exceptions, complaining of the testimony of a witness testifying without questions being propounded to him, must disclose the testimony given, and especially the part deemed objectionable, or the ruling cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2S19, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 1169) — Review—Harmless Error.
    Where a witness testified to facts within his own personal knowledge, the error in permitting him to testify as to the contents of a letter disclosing the same facts, without first proving the loss of the letter, was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    9. Criminal Law (§ Í043) — Conduct off Trial Court — Review.
    Where a bill of exceptions, complaining of a remark of the court that testimony was proper to impeach a witness of accused, was qualified by the court’s explanation,' disclosing that accused objected to the testimony on the ground of irrelevancy, and insisted on knowing the rule under which the evidence could be admitted, the bill as modified presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    10.Criminal Law (§ 1111) — Bill Off Exceptions — Qualifications.
    Accused, accepting and filing a bill of exceptions qualified by the court without excepting to the qualification, is bound thereby.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2894-2896; 1111.] see Criminal Dee. Dig. §
    11. Homicide (§ 45) — Manslaughter—Adequate Cause.
    The statement of decedent that if accused did not leave, decedent would go for an officer to have accused arrested for his misconduct, was not adequate cause to reduce a homicide from murder to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. § 45.]
    12. Criminal Law (§ 1055) — Remarks oe Prosecuting Attorney — Exceptions—Review.
    Where there was no exception showing that the state’s counsel made remarks in regard to which special charges were asked, the fact that such remarks were made was not verified so as to bring the matter before the court for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dec. Dig. § 1055.]
    13.Criminal Law (§ 875) — Verdict—Sufficiency.
    The misspelling of the word “guilty” in a verdict does not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. § 875.]
    14. Criminal Law (§ 951) — Appeai>-Motion for New Trial.
    Accused, who on the overruling of his motion for new trial gave notice in open court of an appeal, could not, without withdrawing the notice of appeal and without leave of court, file an amended motion for new trial.
    [Ed. Note. — For Law, Cent. Dig. $ 951.] other cases, l 2349-2358; see Criminal Dee. Dig. §
    15. Criminal Law (§§ 951, 1156) — Motion for New Trial — Time to File — Discretion of Court.
    Whether an amended motion for new trial would be permitted after the time allowed by law for the filing of a motion for new trial is within the sound discretion of the trial court, and. in the absence of an abuse of discretion, the ruling will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358, 3067-3071; Dec. Dig. §§ 951, 1156.]
    On Motion for Rehearing.
    16. Criminal Law (§ 1070%, New, vol. 11 Key-No. Series) — Appeal—Manner of Perfecting Appeal — Statutes.
    Under Code Or. Proc. 1911, arts. 915, 916, providing that an appeal is taken by giving notice in open court and having the same entered of record, and declaring that the effect of an appeal is to suspend further proceedings in the trial court, until the judgment of the appellate court is received, a notice of appeal, given in open court and entered of record, perfects the appeal, and the jurisdiction of the Court of Criminal Appeals attaches.
    17. Criminal Law (§ 928) — New Triai>-Grounds — Improper Conduct of Jurors.
    That a juror talked over the telephone before the verdict was returned into court, but after agreement, is not, as a matter of law, ground for new trial, especially where the officer in charge of the jury was present and heard what the juror said.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2263-2271; Dee. Dig. § 928.]
    Appeal from District Court, Atascosa County; F. G. Chambliss. Judge.
    Porfirio Tores was convicted of crime, and he appeals.
    Affirmed, and motion for rehearing overruled.
    R. R. Smith, Jas. A. Walton, and S. B. Kennerly, all of Jourdantown, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

At the time for a regular term of the district court of McMullen county, the Hon. F. G. Chambliss, judge of said court, being ill and unable to attend court, the members of the bar in attendance on said court elected Hon. W. W. Walling special judge of said court, who opened court, impaneled a grand jury in accordance with law, and the said grand jury, at a later day of said term, returned an indictment against appellant. The venue of this cause was then changed to Atascosa county, when and where appellant was tried.

Appellant filed a plea in abatement, alleging that he was a Mexican by nativity, and that he had never taken the oath of allegiance, and was only a resident here and not a citizen of this country; that in the organization of the grand jury Mexican citizens of McCullen county were excluded, and discrimination practiced. This plea did not prove itself, and if any evidence was introduced in support of it, the record before us does not contain it. .Therefore the question is not presented to us in a way we can review the action of the trial court in overruling this plea. Again it is claimed that, in the drawing of the special venire which was summoned in this ease, Mexican citizens of Atascosa county were excluded “for the purpose of preventing this defendant from having a fair and impartial hearing before a jury of his peers.” As before stated, if any evidence was offered in support of this plea and motion, it is not included in the record before us, and for aught this record discloses such plea has no foundation, for citizens of Mexican nativity may have been on the special venire, and may have been on the jury that tried appellant. When these pleas were overruled by the court, exceptions should have been reserved, and in the bills the evidence adduced on the hearing should have been included, that we could determine whether or not there was any merit in such pleas. As the matter is presented to us, there is nothing for us to review.

Appellant also filed a plea in abatement of the indictment, alleging that lawyers who were not practicing lawyers in such court participated in the election of a special judge, and that Judge Walling was not a resident of the Thirty-Sixth judicial district. Again the matter is presented in a way we cannot review it. The plea proves no fact; and, if appellant offered any evidence in support of this plea, the record does not contain it. The record of the election of Judge Walling is regular in every respect.

Appellant also asked that Alejandro Sarli, who was also indicted, charged with guilty participation in this offense, be first tried, when the court dismissed the case against Sarli, thus rendering him a competent witness, and he did testify at appellant’s request on this trial.

While the above motions and pleas were filed, yet appellant reserved no exception to the action of the court in ruling on either of them. So the matters are not properly presented to this court for us to act on them.

In the first bill in the record appellant contends that the court erred in overruling his motion for a continuance on account of the absence of several witnesses. He states that he desired the attendance of Dr. Jameson, stating that this doctor was the first person to arrive at the scene of the homicide, and “that this defendant nor his attorneys have ever been able to learn what was the condition of the body and its surroundings at said time, as to arms and otherwise, the nature of wounds, if any, and whether or not there were weapons on or around the body of the deceased.” If appellant shot deceased under the circumstances disclosed by this record, the condition of the body and its surroundings, the nature of the wounds, and whether or not deceased had weapons would not be material to his defense. There is in the motion for continuance, nor in the evidence adduced on the trial, no contention that deceased was attempting to use a weapon, or appellant believed he was about to do so. It is true that appellant was not required to testify as a witness on the trial, yet in his application for a continuance he must state such facts as could or would show the ma-terialty of the absent testimony. He states no, fact that he can or expects to prove by this witness. He states no fact occurring at the time of the homicide that the testimony of the doctor, whatever it might be, would be material to his defense. Two of the witnesses named in the application attended the trial, while for a third no process had been issued, and as to the others, he states no facts that they would testify to — -in no way shows that they would, or he expected to, prove by them anything that would or could be material to his defense; consequently the court did not err in overruling the motion.

Polito Vasquez was not an officer of the law; and, although the sheriff had requested him to look out for appellant, appellant was not aware of this fact when he went to the camp of Vasquez, and made the statements he did make. Vasquez not having taken charge of him at the time the statements were made, and did no act to lead appellant to believe or suspicion that he intended to do so, or had authority to do so, the court did not err in admitting this evidence. Hiles v. State, 163 S. W. 717, and cases there cited.

As bill No. 4 does not show what facts appellant expected to prove by the witness O. G. Bass, the court did not err in the premises. The bill shows that the rule had been invoked, and Mr. Bass had been in the courtroom, and appellant stated: “We are not going to prove any facts by him; it is expert testimony” — and does not disclose upon what issue in the case the “expert testimony” would have a bearing, nor upon what issue he expected to testify.

Another bill shows that “the state offered in evidence two pieces of a map fastened onto a piece of cloth or paper, purporting to be a map of McMullen county, made in 1888 by the Commissioner of the General Band Office of the State of Texas, with unidentified lines thereon purporting to indicate the location of the town of Eowlerton and other points, to which defendant objected because said instrument was not a whole and complete map, but several pieces of paper tacked on a piece of paper, that said several pieces of paper were so disconnected as to leave nothing to show that the purported map was not half of one map and half of another, and that the same was not so identified as to make it properly admissible for the purpose of proving any fact in dispute.” The court in approving the bill states that the map had been torn in half and placed back together, and it is shown that it was a map of McMullen county, made by the Land Office. Under the recitations of this bill herein copied no error is disclosed in the ruling of the court.

Several bills were taken to the testimony of Mr. Erank H. Burmeister. If one bill it is shown that this witness was permitted to testify, being a lawyer in the case, without questions being propounded to him. As this bill does not disclose any testimony he gave on the trial, of course it is impossible for us to determine that appellant was in any manner injured thereby. To bring the matter before us for review, the bill should disclose the testimony he gave, especially that portion which appellant deemed objectionable. In two other bills it is shown that Mr. Burmeister was permitted to testify that he had received a letter informing him that he had been employed by the commissioners’ court to run the boundary line of McMullen county, because the work of Mr. Goff and Mr. White had been condemned, and that property up to the time testified to by him was taxed by McMullen county. The court in approving these bills stated that Burmeister testified, independently of any letter, that he was under contract with McMullen county to do this work, and that the work had been condemned; that he had served as county surveyor for a number of years, and knew the facts testified to by him. Certainly any man can testify he had been employed to do a certain character of work by the county, and had done the work. These are facts within his personal knowledge; and, while the contents of the letter were not admissible in evidence,' without proving its loss, yet, as the witness testified in addition thereto from personal information and knowledge to the same facts, the bill presents no reversible error. The bills do not disclose in any way the materiality of the testimony, or how such testimony could in any wise be hurtful to appellant.

In the bill objecting to the testimony of Mr. Holmes, no portion of his testimony is given, and no fact testified to by him is stated; consequently there is nothing presented for review. However, we will state the court did not err in permitting him to testify, for he had not been in the courtroom, nor violated any rule of the court, and his testimony was pertinent and germane to the issues involved in this case.

In the last bill, relating to the in* troduction of testimony, it is shown that when the witness Humphries was testifying, appellant objected to certain portions of his testimony, and the court said: “It goes to the impeachment of your witness,” to which remark appellant objected. The court in approving the bill states, “Approved, with the-explanation that defendant was objecting to the testimony on the ground of irrelevancy, and insisting on knowing the rule under which such evidence could be admitted.” As-thus qualified, the bill presents no error, and, appellant having accepted and filed the bill without excepting to such qualification, he is bound thereby.

There is no evidence suggesting that appellant “shot at Ike Hill for the purpose of scaring him” ; consequently the court did not err in refusing the special charge presenting this issue. Neither did the evidence adduced on this trial call for a charge on self-defense. There is no testimony that deceased assaulted appellant, or appellant believed that he was in any danger from Hill. All that deceased said was that if he, appellant, did no't leave, he, deceased, would go and get an officer, when appellant shot him. The issue of manslaughter is not raised by the testimony. It is not even shown that there was anger or rage, and the only ground for resentment is that deceased told him he was going to town for an officer to have him arrested on account of his, appellant’s, misconduct. This would not be adequate cause in law. There is no exception showing that state’s counsel used the remarks in regard to which special charges were asked; therefore, the fact that such remarks were used is not verified in a way to-bring the matter before us for review.

The misspelling of the word “guilty” in the verdict does not vitiate it. The verdict was certain and sufficient upon which to-enter judgment.

It appears that when the verdict of the jury was returned, appellant’s counsel filed a motion asking that they be given additional time to that allowed by law in which to file their motion for new trial, on grounds stated in the motion. This was by the court granted. When the motion was filed it was overruled, and appellant gave notice of appeal to this court. Subsequent to this time appellant filed an amended motion for a new trial, which the court by order entered struck from the record, on the ground it came too late, and no leave had been granted appellant to file it, to which action of the court appellant excepted, and presents the question properly in a bill of exceptions. We think appellant is correct in contending that the trial court has control over its judgments during the term at which such judgment was rendered, and, had the court thought proper to do so, upon appellant withdrawing his notice of appeal, the court could have set aside the judgment overruling the motion for new trial, granted leave to file an amended motion, considered same, and tools sucli action as tlie trial court deemed proper; and, if tide amended motion was overruled, by again giving notice of appeal, appellant could bave prosecuted an appeal to tbis court. But appellant did not take sueb action. After bis motion for new trial bad been overruled and notice of appeal given to tbis court, without leave of tbe court appellant proceeds to file with tbe clerk wbat be terms an amended motion for new trial, in wbicb be does not ask leave to withdraw the notice of appeal theretofore given, nor in tbe motion does be ask that tbe order overruling tbe motion for a new trial be set aside and permission be granted to file an amended motion for a new trial. As thus presented, tbe court did not err in striking tbe motion from tbe record, as be had granted no leave to file it. But aside from tbis, tbe amended motion not being filed within tbe time allowed by law, and tbe court not having considered same, we hardly think we would be authorized to bold be abused bis discretion.

Whether another motion for a new trial will be permitted to be filed after tbe time allowed by law has elapsed is a matter within tbe sound discretion of the trial court. He can read tbe motion and application; and, if in bis opinion be deems that no matter is presented which would authorize him to disturb tbe judgment, be can decline to permit it to be filed, and tbe only question then presented to us, is, From grounds and allegations contained in the motion, is it shown that be has abused tbe discretion confided to him by law? In tbis case we do not think any such showing is made, and the judgment is therefore affirmed.

On Motion for Rehearing.

The motion for rehearing in tbis case was not received by the clerk until the 27th day of April, four days after tbe mandate bad' issued; but, inasmuch as tbe death penalty was assessed, we ordered tbe mandate recalled, and permitted tbe filing of tbe motion for rehearing, for tbe members of tbis court, like all other citizens of Texas, do not desire tbis extreme penalty inflicted unless tbe evidence justifies and tbe record discloses that tbe appellant has bad a fair and impartial trial, and there is no error in tbe record that could bave injuriously affected appellant’s rights.

We bave carefully reviewed the record, and tbe first contention of appellant is that tbe court erred in bolding that tbe jurisdiction' of tbis court attached upon giving notice of appeal and entry made thereof in tbe minutes, and be cites us to tbe cases of Wood v. Wheeler, 7 Tex. 13, Puckett v. Reed, 37 Tex. 308, Blum v. Wettermark, 58 Tex. 125, and Freeman on Judgments, in wbicb it is held that courts bave jurisdiction over their judgments until tbe end of the term at which such judgment was rendered. These authorities are in no wise in conflict with tbe original opinion in tbis case, but appellant overlooks tbe fact that notice of appeal does not confer jurisdiction on the appellate court in civil cases, but tbis jurisdiction is conferred by giving the bond required by law after notice of appeal has been given and entered of record. Although one in a civil case might give notice of appeal and have it entered of record, yet if be failed to give the bond required by law, or file a pauper’s oath in lieu thereof, tbe notice of appeal would not stay an execution in a civil case, nor would tbe jurisdiction of tbe appellate-court attach until tbe appeal bond was filed. However, it is different in criminal cases— tbe jurisdiction of tbis court attaches and the appeal is perfected when notice of appeal is given in open court and that notice entered of record. Article 915 of the Code of Criminal Procedure provides that “an appeal is taken by giving notice thereof in open court, and having tbe same entered of record,” and article 916 provides that “tbe effect of an appeal is to suspend and arrest all further proceedings in the case in tbe court in which the-conviction was bad, until the judgment of tbe appellate court is received by tbe court from wbicb tbe appeal is taken.” Tbis question is fully discussed in Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668, Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280, and Nichols v. State, 55 Tex. Cr. R. 211, 115 S. W. 1196, and cases cited.

Appellant’s motion for a new trial having been overruled, notice of appeal given and entered of record, tbe trial court was without authority to make any other orders in the-case, except in those cases wherein tbe statute specially authorizes it to be done, unless appellant should withdraw his notice of appeal ; then and not till then would tbe trial court in criminal oases be authorized to give-permission to file an amended motion for a new trial and consider same, and if tbe court should then overrule tbe motion, appellant could again give notice of appeal. As before said, as tbe trial court bad overruled tbe motion for new trial, notice of appeal given and entered of record prior to the time it was sought to file an amended motion, a paper filed with the clerk, without permission of tbe court, and without withdrawing tbe notice of appeal, would not be a legal filing, and before-tbe court would be authorized to act thereon, tbe notice of appeal must be withdrawn, as tbe jurisdiction of this court attached .when, notice of appeal was given and entry thereof made of record, for tbe jurisdiction of tbis court when it attaches is exclusive. During tbe term notice of appeal can be withdrawn by the appellant, and reinvest the district court with jurisdiction, but even tbis cannot be done after tbe end of tbe term.

While tbe amended motion placed with tbe clerk does recite “that, leave of tbe court being first had and obtained, he files tbis amended application for a new trial,” yet tbe indorsement of tbe court on tbe application shows no such leave was granted, for he says: “This instrument was first presented to the court on the 6th day of December (five days after it bears file marks), and that the instrument was not placed with the clerk until after the motion for new trial had been overruled, exception taken, and notice of appeal regularly entered, and the court declined to consider the instrument for any purpose as coming too late.” We cannot say the court erred in this matter. No one except appellant could withdraw his notice of appeal entered of record when the original motion for new trial was overruled, and he at no time made this motion nor offered to do so.

However, as stated in the original opinion, we have read the affidavit which is sworn to before one of appellant’s attorneys, and this was improper, and we do not think it presents grounds as to the conduct of the jury which would authorize us to hold that the court abused his discretion under the circumstances in declining to entertain the amended motion, even if notice of appeal had been withdrawn. The affidavit does not show that the talking over the telephone took place before the jury had agreed on a verdict; only that the talking took place before the verdict was returned into court, and it is further shown that the, officer in charge of the jury was present when the conversation took place, and heard all the juror said. This should not have been permitted; but, as the matter is presented to us, we cannot review the action of the trial court.

The other grounds in the motion were all passed on in the original opinion, and we think correctly so.

The motion for rehearing is overruled.