source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    BLAIR v. STATE.
    (No. 3313.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    Criminal Law (§ 820*) — Trial—Request to Charge — Instructions Given.
    Where the court required the jury to find that an alleged assault on prosecutrix, if made, was with intent to ravish her and to accomplish his purpose at all hazards, it sufficiently covered a request to charge that the use of unlawful violence on the person of. prosecutrix, with intent to injure her, and not in defense of his person or property, was an aggravated assault, but before an assault could amount to one with intent to rape, the jury must find beyond reasonable doubt that defendant committed it with the specific intent to have carnal knowledge of her without her consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Mat Blair was convicted of assault to rape, and ho appeals.
    Affirmed.
    Jno. E. Rylee, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a conviction for assault to rape. The state’s testimony makes a sufficient case to justify the verdict of the jury. The court’s charge covers assault to rape by force. Appellant did not except to any portion of the charge.

Two special charges were asked, which the court refused. These charges were presented and exception reserved to the refusal to give them before the court read his charge to the jury, but there was no exception to the court’s charge for failure to give the matters embodied in the special instructions.

The first requested instruction was to the effect that the use of unlawful violence upon the person of prosecutrix with intent to injure her, and not in defense of his person or property, was an aggravated assault, but before an assault could amount to one with intent to commit rape, the jury must find beyond a reasonable doubt, not only that defendant assaulted prosecutrix, but must further find beyond a reasonable doubt that the defendant assaulted her with the specific intent to have carnal knowledge of her, and against her consent. The court gave this phase of the law fully. He instructed them that they must find, among other things, that the assault was made, if made, with the specific intent to ravish prosecutrix and to have carnal knowledge of her, without her consent, and to have carnal knowledge of her by force, and to have carnal knowledge of her without her consent, and by the use of such means as was sufficient to overcome all resistance within her power, and to accomplish his purpose at all hazards. It occurs to us that this was a sufficient presentation of that phase of the law. This was in stronger language even than defendant’s special instruction as to the intent. The other request-

ed instruction was to the effect that the jury must find that the use of force upon the person of prosecutrix, if they should find that the force used upon prosecutrix was for the purpose of gaining her consent to have carnal knowledge, would not amount to assault with intent to rape. The facts do not call for such' charge or present that issue. The girl makes out a clear case. The defendant denied making the assault upon her for the purpose of having intercourse with her. In fact, his testimony excludes the idea that he attempted to have intercourse with her, or even desired to do so, and denied the girl’s testimony in toto in so far as that phase of the ease is concerned.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    FRANCIS v. STATE.
    (No. 3264.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Homicide (§ 340) —Appeal — Harmless Error — Instructions—Degree.
    Error in submitting the issue of murder in the first degree to the jury is harmless, where defendant was convicted of murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    2. Homicide (§ 291) — Instructions—Applicability to Evidence — Cause oe Death.
    In a prosecution for homicide, where it was shown that shortly after he was shot, deceased was taken to a nearby house; that unsuccessful efforts were made to secure a doctor; that next day deceased was removed to a town where he was attended by a physician, but died shortly thereafter, and the doctor testified that the wound, which extended from the upper left side through the lungs, liver, and intestines and lodged in the right hip, was necessarily fatal— the court properly refused to instruct on the issue of negligence and gross mistreatment as the cause of death.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 590; Dec. Dig. § 291.]
    3. Homicide (§ 307) — Instructions — Assault.
    Where the injuries inflicted by accused result in death, the issues of assault with intent to murder or aggravated assault do not arise and should not be submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    4. Homicide (§ 309) — Instructions — Manslaughter — Evidence.
    Where the evidence showed that deceased, after quarreling with defendant at the latter’s house, started away from there, that defendant armed himself, mounted a horse and overtook deceased, that defendant claimed he offered to compromise their difficulties, but that deceased started toward him with a pocketknife in his hand, whereupon defendant shot in self-defense, while deceased’s dying declaration was that he had no knife, and that defendant shot him when he refused to retract statements made by him, and that the bullet entered through the back part of deceased’s left arm and ranged downward and to the right through the body, there was no showing of adequate cause so as to require an instruction on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]

      5. Criminal Law (§ 951) — New Trial — Time for Motion — Adjournment of Term.
    Neither the trial court nor the Court of Criminal Appeals can consider a motion for new trial based on newly discovered evidence, which was not filed until after the adjournment of the term at which defendant was convicted, his motion for new trial overruled, and notice of appeal entered of record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358; Dec. Dig. § 951.]
    6. Criminal Law (§ 366) — Evidence—Declarations of Deceased — Res Gestje.
    Where deceased stated shortly after the shooting that he desired to see his children, that he had been shot, and that defendant shot him, the first part of the statement relating to his children was inadmissible in a prosecution for the homicide, but the rest was properly admitted as part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    7. Criminal Law (§ 695) — Trial — Reception of Evidence — Objections.
    When objection is made by the accused to the admission of certain testimony as a whole and part of the testimony is admissible, the objection is properly overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-163S; Dec. Dig. § 695.]
    8. Homicide (§ 203) — Evidence — Dying Declarations — Foundations.
    Where it was shown that the deceased fully realized from the time he was shot that the wound was fatal and so stated, and that he was perfectly conscious and at himself, his declarations as to the affray are admissible as dying declarations under the express provisions of Code Cr. Proe. 1911, art. 808.
    [Ed. Note. — For other case, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    9. Witnesses (§ 288) — Re-Examination — Matters Brought Out on Cross-Examination.
    Where defendant elicited on cross-examination of one of the state’s witnesses testimony that deceased had stated that prior to the affray he had “cussed out” defendant, it was proper, under Code Cr. Proc. 1911, art. 811, providing that when part of an act, declaration, or transaction is given in evidence by one party the whole may be inquired into by the other, for the state on redirect examination to show that he stated that the cause for the “cussing out” was that defendant had brought to deceased’s house some women other than defendant’s wife.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1003; Dec. Dig. § 288.]
    10. Homicide (§ 157) — Evidence—III Will of Defendant.
    Such evidence was admissible also to show a cause of ill will by the defendant toward deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 288-292; Dec. Dig. § 157.]
    11. Criminal Law (§ 1091) — Appeai^Bill of Exceptions — Statement of Evidence.
    A bill of exceptions, complaining of the admission of . evidence that when deceased’s wife came home and found him shot she asked him how he felt, and that he replied that he felt very bad and then embraced and kissed her until she was taken away, which bill was allowed by the court with a statement that it contained only a part of the evidence which was admitted as a predicate for the declarations made by deceased to his wife, is too meager for consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2S15, 2816, 2818, 2819, 2823, 2824, -2S28-2S33, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    12. Criminal Law (§ 1169) — Appeai>-Harmless Error — Admission of ¡Evidence.
    While such testimony was inadmissible, its only prejudicial effect would be to inflame the minds of the jury, and where the defendant was convicted of the lowest offense and his punishment fixed at the shortest term allowable, the testimony did not prejudice the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1109.]
    13. Homicide (§ 216) — Evidence — Dying Declarations — Foundation.
    Where the state had shown that just after the shooting, when deceased made certain declarations he realized that his wound was fatal, and that he was then in his right mind, and that the same conditions existed two days later just before his death, when he made other statements, it may be inferred that they also existed during the interval at which time he made a written declaration.
    ■[Ed.. Note. — For other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. § 216.*]
    14. Homicide (§ 169) — Evidence — Prior Conduct of Deceased.
    In a prosecution for homicide, evidence offered by defendant that deceased had abused his children, and that when defendant remonstrated, deceased stated that they were his and he could do as he pleased, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Bondy Francis was convicted of murder in tlie second degree, and he appeals.
    Affirmed.
    Greenwood & Short, of Seguin, 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

   PRENDERGAST, P. J.

Appellant was indicted for the murder of his brother-in-law, Sam Cunningham, alleged to have occurred June 19, 1913, before the new murder statute, doing away with the degrees, went into effect. He was tried under the old law, and the court submitted both degrees of murder. The jury found him guilty of murder in the second degree and assessed his punishment at five years in the penitentiary, the lowest prescribed by law.

No extended statement of the evidence is necessary. The evidence, in brief, established that appellant married deceased’s sister. Deceased’s home was in San Antonio and appellant’s in Guadalupe county at the time of the killing; that prior to the killing there had been trouble between appellant and deceased sufficient, at least, to show ill will by appellant towards deceased. A few days before the killing deceased went from his home and was staying at a friend’s a few miles from appellant’s for a few days. On June 19th, appellant had a dinner and celebration at his house. Deceased, it seems, attended this, probably without an invitation. As is customary by negroes on such occasions, they had intoxicating liquors to 'drink, and it seems all of them partook, more or less. After the dinner, trouble again arose between appellant and deceased, and it seems it was about the old scores between them. Deceased thereupon left appellant’s to go to another picnic or celebration in the neighborhood, or the friend’s where he had been staying, a few miles distant. He was walking, and in his shirt sleeves. When the row started between them at appellant’s house, friends separated them; some taking deceased out in the yard, others taking appellant into his house. It was then deceased left. Appellant, after remaining in his house for awhile, privately got his big six-shooter, which was loaded, stuck it in his clothes so as to conceal it, went out to his lot, got the horse of another, mounted it, and claimed to those present that he was going to a certain pasture to get another horse. He says he so told the parties in order to throw them off of their guard so that they would not prevent him from going to see deceased, which was his intention and which he at once did. He says he went to see him to try to compromise the matter between them. Appellant, on this horse, followed deceased and overtook him in the road not a great ways from appellant’s home. Appellant claims that when he overtook him, he told deceased he wanted to compromise their troubles and settle the matter; that deceased declined this and instead said he was going to kill him, got out his small pocketknife, started towards him with it open and when he got within about three steps from him, he shot him with his pistol, in self-defense, deceased falling; that he then turned and left the scene on his horse. By a dying declaration deceased said that when appellant overtook him, appellant told him that he was going to kill him, unless he took back what he had said; that he declined to retract, and thereupon, without his doing anything towards appellant, appellant shot him, from which wound he died within two days ; that deceased was wholly unarmed and, as he expressed it, did not even have a pin with which to stick appellant. The doctor who attended him swore that deceased was shot through the back of the flesh of the left arm about midway between the elbow and shoulder ; that the ball entered the side of the deceased, passed through his ribs, liver, lungs, and intestines, and the ball lodged near the right hip or in it; that the wound was necessarily fatal.

Appellant complains that the court erred in submitting murder in the first degree, claiming the evidence did not raise that issue. The jury found appellant guilty of murder in the second degree, assessing the lowest penalty. This presents no error as has all the time been held. Potts v. State, 56 Tex. Cr. R. 43, 118 S. W. 535.

He also claims that the court should have submitted to the jury whether deceased’s death was caused by negligence and gross mistreatment, after he was shot, and he asked charges on that subject. The court correctly held that the evidence did not raise the issue to require the submission of such an issue.

The evidence shows without contradiction that when appellant shot him down, he rode away without giving or offering any assistance; that very soon deceased met two friends in a conveyance, and asked them to get a doctor. One at once went for a doctor ; the other put him in the conveyance and took him to his nearest friend. The one who went for a doctor said there was none at one town, and one was absent from the other town some six miles distant, and the other refused to go. This was late in the evening. That night they took him to the train, some six miles, to take him to San Antonio, which they did next day, and called a doctor when they got there. The doctor swore the shot was necessarily fatal.

He further excepted to the charge, claiming that the court ought to have submitted the issue of an assault with intent to murder, claiming the evidence raised that issue. Deceased was killed- — not merely shot from which he recovered — so that the issue of an assault with intent to murder did not arise, and in no event should have been submitted.

He also claimed that the court should have submitted aggravated assault. No such issue was raised by the evidence, and the court should not have submitted it. Appellant’s defense was self-defense, which was fully and completely submitted in his favor by the court and found against him by the jury, to which there is no complaint.

He also complained that the court should have submitted manslaughter. In our opinion the evidence did not raise manslaughter, and the court should not, as he did not, submit that issue. There was no adequate cause. Johnson v. State, 167 S. W. 736, and cases cited.

The term of court at which this case was tried adjourned on May 21, 1914. Several days afterwards appellant filed what he calls his supplemental motion for a new trial, in which he sought a new trial for claimed newly discovered evidence. The court had no power or authority to consider it for any purpose, and neither has this court. It should not have been contained in the record. During the term, at which the motion filed and acted upon during term time was overruled, appellant gave notice of appeal, which was properly entered of record. After the court adjourned for the term it was without power or authority to hear any other motion for new trial and make any order. If such order had been made, granting such motion, it would have been void. Tores v. State, 166 S. ,W. 527.

Appellant complains by a bill that:

“The witness Robert Jefferson testified that he met the deceased walking down the road, and that the said Cunningham said to him: T want to see my poor little children; I am shot.’ X-Ie said that Bondy shot him.”

Then the bill shows that he objected to this testimony for various reasons. The court does not approve any of appellant’s objections as to statements of facts, but in allowing'the bill he says he did so “with this statement: ‘The testimony was admitted as res gestae.’ ” By his bill appellant objected to the introduction of the whole of the testimony of the witness quoted above. If he had objected to this much of the statement only, “I want to see my poor little children,” it would have been proper for the court to have excluded that much of it, but all of the other which was objected to, being res gestae, was clearly admissible. When part of the testimony is admissible and another part is not, and objection is made to the whole, the court properly overruled such objection. Ortiz v. State, 151 S. W. 1057, and cases there cited.

In another bill it is shown that the witness Manuel Givens testified to what the deceased told him as follows:

“He told me that Bondy Francis shot him. He said he overtook him about a mile from New Berlin, and I asked him, ‘Why, Sam, did he shoot you; what did he shoot you for 7- and he said, ‘He didn’t shoot me for nothing',’ he said, ‘some old mess’; he didn’t tell me which or what, he said, ‘About some old mess.’ He said: ‘We got into a little fuss down at the house, and Mr. Francis brought up this old mess, and I told him if he was going to bring up that old mess I would leave the house. After I got up the road a piece’ he said he heard somebody loping, and he said he saw Mr. Francis coming, and he told him, ‘Bondy, you have come to kill me and I ain’t got nothing, not even as much as a pin to stick in you.’ And he said, ‘Tes, I come to kill you; if you don’t take back what you said I am going to kill you.’ He said, T don’t see any use taking it back; I have done said it, and I ain’t got as much as a pin to stick in you.’ And he said he just pulled out the gun and shot him.”

Then follows appellant’s objections to this testimony, claiming that it was hearsay, not a dying declaration, etc. The bill in no way discloses anything else with reference to the status of the case or the evidence therein. The court, in approving the bill, did so with this qualification:

“With the statement that the predicate was laid by showing by the witness that at the time of the statement by deceased, he was conscious of approaching death and was of sound mind. This bill does not set out the preliminary questions and answers of the witness.”

If we could go to the record for a full statement it would show that the deceased fully realized from the time he was shot that it would kill him, and that there was no hope of his recovery. He, in effect, so stated every time the question came up. Also that he was perfectly conscious, at himself in every way. In other words, the record would show that the several statements testified to by several witnesses were shown to be made under such circumstances as clearly to show that they were proven up as dying declarations. It is unnecessary to take up the other bills relating to the testimony of the several witnesses to the same effect. O. G. P. 808, and decisions thereunder.

By another bill he claims that in his cross-examination of Givens, one of the state’s witnesses, he drew out that the deceased, the day before the killing, had told him that he had “cussed” out appellant in San Antonio. He stopped when he proved that. When the state took him back on redirect examination, he complains that he said the occasion for his “cussing” out appellant was that appellant brought some ladies to his house, and that he told him to leave with them. He did not tell who the ladies were, but that it was not appellant’s wife. This testimony was admissible as proper cross-examination, bringing out the remainder of a statement made by the deceased to the witness as a part thereof. O. G. P. 811, and decisions thereunder. Besides, this evidence was admissible to show a cause for ill will by appellant towards deceased.

By another very meager bill appellant complains that when deceased’s wife came home late in the evening and found her husband shot she spoke to him, asked him how he felt, and he said, “Bad”; that he reached up, put his arms around her, pressed her to him, and kissed her until she was taken away. The court, in allowing this bill, states that he does so “with the statement that the bill contains only a part of the testimony of the witness as to what occurred, and is merely introductory to her testimony laying the predicate for the introduction of the dying declaration of the deceased.” As stated by the judge, this bill is too meager to require consideration. We think the testimony was inadmissible, but it in no way tended to prove the crime, nor any other material matter. The only way it could have affected appellant; if at all, might have been to inflame the minds of the jury and cause them to inflict a greater punishment upon appellant ; but he was found guilty of the lowest offense and his punishment assessed at the lowest fixed by law, so that it did not injuriously affect defendant and presents no error, even if it could be considered.

The next bill shows that the state proved up by deceased’s wife his dying declarations just after and as a part of what was shown in the bill just above discussed. In our opinion, the bill shows sufficiently and completely all the conditions necessary to be proven to show that the statement was made under the circumstances and as required by the statute to make it admissible as a dying statement. It is unnecessary to copy the bill, as it is lengthy. O. O. P. art. 808. .

In the next succeeding bill it was shown that just after the deceased died his wife found a written statement in deceased’s pocket, which she testified was written and signed by the deceased. This was admitted also as a dying declaration over appellant’s objection that it was not proven up sufficiently to show that it was the dying declaration of the deceased. The court, in approving the bill, did so with this qualification:

“The paper was admitted as the dying declaration of deceased. It is not necessary that the predicate for admission of a dying declaration be established by direct evidence — it may be established by circumstances. It is shown by other proof that a very short time after the shooting, the deceased was conscious of approaching death, and made a voluntary statement as to how the shooting occurred, and that when he made the statement he was in his right mind. By the testimony of his wife, it is shown that he made a like statement, under like circumstances, after he reached San Antonio and just before his death. The circumstances show, with reasonable certainty, that the writing was made by the deceased between the time of his first dying declaration and the last, made to his wife. These declarations were made when he was in his right mind, were made voluntarily, and were made while he was conscious of approaching death. It is a fair inference that, when the writing was made, the required conditions existed.”

There was no error in the court’s ruling.

The only other question raised is by appellant’s last bill, wherein he complains that the court would not permit appellant to testify that deceased did not have very much regard and consideration for his children, because just a week or two before the killing, deceased was at his house and made said children get up out of the bed at 12 o’clock at night and sleep out on the ground, and because one of them did not get up as soon as spoken to, deceased kicked said child and he, appellant, protested against the mistreatment of said children, and that the deceased remarked that the children were his and that he could do as he pleased with them. This evidence was inadmissible, and the court committed no error in excluding it.

We have carefully considered the record and all of appellant’s complaints, and none of them presents reversible error. The judgment is therefore affirmed.


text:
    QUINN v. STATE.
    (No. 3255.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    On Motion for Rehearing, Nov. 25, 1914.)
    1. Homicide (§ 250) — Manslaughter—Sufficiency of Evidence.
    In a prosecution for homicide in a fight bordering closely on a mutual combat, evidence . held to sustain a conviction of manslaughter. [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    2. Criminal Law (§ 941) — New Trial— Newly Discovebed Evidence.
    In a prosecution for homicide, newly discovered evidence, that deceased had hired an auto and chauffeur to search for accused after making threats against his life, is not ground for new trial, where the evidence on the trial clearly showed that accused was informed that
    deceased was looking for him, as it was cumulative.
    [Ed. Note. — For other cases, see Criminal Law,] Cent. Dig. §§ 232S-2330; Dec. Dig. § 941.]
    3. Ceiminal Law (§ 939) — New Trial— Newly Discovered Evidence — Diligence.
    In a prosecution for homicide, newly discovered evidence of a witness, who testified at the trial that accused had rented a revolver at a pawnshop, is not ground for new trial, where the defense at the trial cross-examined another witness as to the fact of rental and such witness denied knowledge of it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    On Motion for Rehearing.
    4. Homicide (§ 112) — Self-Defense—Bringing on Difficulty.
    A defendant, who armed himself after hearing that deceased had .threatened his life and was armed and out looking for him, would lose his right to self-defense if he sought the deceased for the purpose of killing him! or bringing on a difficulty so that he might be killed or injured, though he had the right to go to accused to demand an explanation.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. § 112.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    A. Quinn was convicted of manslaughter, and he appeals.
    Affirmed.
    T. C. Turnley and Aubrey Fuller, both of Galveston, 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

   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at three years’ confinement in the penitentiary.

Two questions are presented: First, the insufficiency of the evidence to support the conviction; second, newly discovered testimony. We do not think there is any merit in the first proposition. These parties had been at enmity, each making threats against the other; both armed themselves the day of the killing. It is in evidence that the deceased made threats against the life-of appellant, and also that appellant made threats against the life of deceased. This is the conclusion to be reached from the evidence, without stating it in full.

Within an hour of the killing, appellant walked into the saloon of Habine and was informed by Habine, his brother, and others that deceased had been in the saloon shortly before and had made threats against him. He borrowed a pistol from Habine and left. Shortly afterward he came upon deceased on the corner of a street. A conversation began by appellant stating to deceased he understood he had been looking for him. Deceased replied, “Ves, I understand you have been looking for me,” and struck appellant with his fist. They “clinched.” When pulled apart, appellant had his pistol, snapped it once or twice, and either the second or third time it was discharged, inflicting the fatal wound. The testimony is not altogether harmonious at what time deceased pulled his pistol or attempted to pull it. Appellant introduced evidence to the effect that the deceased was pulling or seeking to pull his pistol before he pulled his. When deceased fell, he had his pistol in his hand; or, if not, it had just been taken from him by an officer. Evidently the state’s idea was that the trouble arose between them on account of a prostitute with whom appellant had been living prior to the homicide but had for a month or two not lived with her, but that deceased was keeping her as his mistress at time of difficulty. They were engaged to be married, and she was going to rectify her life by moving from Galveston to Houston and become, as she says, a better girl. This case borders closely upon mutual combat, under circumstances that meant a deadly conflict.

As to the newly discovered testimony, affidavits are appended to the motion, in substance, that deceased had hired an auto and chauffeur to carry him about the city in search of appellant. The chauffeur had been discharged shortly before the meeting. We do not think there is anything in this phase of the motion. Appellant was thoroughly informed of the fact that deceased was seeking him and had threatened his life. Acting upon this information, he armed himself and went to where the deceased was located. If the witness had been present at the time and introduced before the jury, this testimony would have been admissible as intensifying the fact that deceased had been looking for appellant; but appellant fully knew that fact prior to the killing. This was in the nature of cumulative evidence, and a matter of no very material importance, as we understand this record. 'Appellant w,as informed and knew of the threats and that deceased intended to kill him and was seeking him for that purpose.

The other phase of the motion was, in substance, that deceased had gone to a pawnshop before driving in the auto and rented a pistol. This affidavit and the motion shows that deceased had rented this pistol from the pawnshop for 20 days, paying $10 for it. It is claimed that this is newly discovered and material. It would have been admissible testimony, but it is far from clear from the record that appellant was in position to take advantage of that as newly discovered testimony. The witness by whom they expected to prove this was a witness and present at the trial and was not asked in reference to the matter. Qualifying the bill in this respect, the court says: “It is cumulative of the testimony of other witnesses who testified upon the trial.” No witness, however, in the case testified to the fact that deceased had leased the pistol. From the witness Pearl Brooks upon cross-examination the defendant elicited the following;

“Q. Now then, Pearl, didn’t you, on the day of the killing, on that morning, furnish to Mr. Smith money to buy him a six-shooter? A. No, sir; I didn’t. Q. Didn’t you give him $10? A. No, sir. Q. Didn’t Mr. Smith buy a sixshooter on the morning of the killing, from a pawnship in the city of Galveston? A. If he did, I don’t know about it; I didn’t give him $10, and as to Mr. Smith never paying me back the $10, I didn’t give him the $10 to pay me back. Pie had money; • he made $35 that night, and I got half of it.”

By this witness threats were proved by the defendant against the deceased. It will be noticed by this statement that defendant on cross-examination of the woman Pearl Brooks, who had been appellant’s former mistress, proved that she was then the mistress of deceased; that she did not let deceased have the $10 to buy a pistol or get one from the pawnshop. He asked her particularly if she had not let him have the money to get it from the pawnshop. From this appellant must have been aware of the fact that deceased got the pistol from the pawnshop or believed it, as he asked particularly in reference to that very matter. Ten dollars was the exact amount deceased paid the pawnshop for the pistol. If he knew or believed that deceased had been hunting him over the town, ordinary diligence would have-required him to inquire at the different pawnshops whether or not deceased had gotten-this pistol. There is no evidence connected with the motion for new trial or in the statement that he had gone to any pawnshop to ascertain this fact, and yet he developed on the trial by cross-examination of the witness Pearl Brooks that he knew or believed the fact that deceased had gotten the pistol from the pawnshop and had paid $10 for it. Under this statement, we do not believe this case is brought within any of the' rules which, would require the court-to grant a new trial. It is sometimes the case that justice may require granting a motion for new trial where the matters are not brought strictly within the rules in regard to newly discovered testimony; but we are of the opinion that this is not one of those cases. Appellant was apprised, if his examination of the witness Pearl Brooks means anything, of the-fact that deceased had leased the pistol from some pawnshop and had paid $10 for it, because he was inquiring of this witness if she-had not furnished deceased the money. As soon as the trial was over and conviction had, he discovered this quickly, and from one of the witnesses who w.as used on the trial. Now the fact that deceased had leased the pistol from the pawnshop could have had but little bearing upon the real merits of the case. Appellant’s personal testimony is to the effect that he was afraid the deceased would kill him; that they had had previous-difficulties., Taking the case all in all, we do-not believe this testimony comes within even any equitable rule that would require the court to grant a new trial or this court to-reverse for failure to grant a new trial. This seems to be one of those eases where the two antagonists threatened each other, both apparently willing to enter into a deadly conflict, both armed for this purpose, with some intimation that appellant sought the deceased.

We are of the opinion, therefore, the court did not err, and this judgment ought to be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

We have examined this record in connection with the motion for rehearing and still are of the opinion that the facts are sufficient to support the conviction for manslaughter. It is unnecessary to review the facts. The criticisms of the opinion select a few expressions here and there, instead of taking it in its entirety. For instance, the motion makes this statement:

“In the opinion rendered by the honorable judge in this case he states' ‘both armed themselves the day of the killing.’ We respectfully refer the court to the case of Duke v. State, in 61 Tex. Cr. R. page 19, 133 S. W. page 435, in which the court says: ‘Defendant whose life has been threatened has a right to arm himself and to shoot if attacked, and his so doing does not deprive him of self-defense.’ ”

The quotation from the Duke Case is the law, but not applicable here. The facts in this case are unquestionably proved by the defendant’s witnesses that he armed himself upon being informed of the fact that deceased had threatened him and was hunting him, and it is made incontrovertibly to appear that deceased was armed. Of course, the defendant has a right to seek his adversary and demand an explanation under appropriate circumstances, and to arm himself against any probable attack. At this late day this proposition would not be questioned. But there are different ways by which one antagonist may seek another. If he seeks him for the purpose of killing him, or bringing on a difficulty with him by which he may be killed, or inflicts serious bodily injury, or to provoke him into a difficulty for the purpose of doing either, he cannot invoke the doctrine of self-defense. He has a right to go to his adversary and demand an explanation, and, if the adversary attacks him, his right of self-defense may not be compromised. This question was fully discussed and decided in Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. Appellant rather loses the point of this legal proposition, if there was any merit in it from his viewpoint, by this statement: “We will admit that the question of self-defense was not raised in this case.” If the law of self-defense was not in the case, or if the facts did not raise the issue of self-defense, the doctrine above invoked by him in the Duke Case and Shannon Case, and that line of cases, is not applicable. The issue of self-defense must be in the ease in some way to invoke any proposition applicable to the law of self-defense. It is not the purpose of this rehearing opinion to go into merits of the testimony, or to discuss the doctrine of the Duke Case. '

We reviewed the question of newly discovered testimony in the former opinion and deem is unnecessary to discuss it. The question of threats made by the deceased seems not to have been controverted, at least it was amply proved, and the fact that deceased armed himself was known to appellant, and to meet these matters appellant armed himself and shortly afterwards found the deceased. The fatal difficulty then occurred. It seems that the proposition mainly relied upon in the trial court, in reference to newly discovered testimony, was not a legal but an equitable one as contended in the original brief. The newly discovered testimony, if it had been before the court, was to the effect that deceased had rented a pistol on the day of the homicide and prior to the tragedy, and had gone about the city in an auto hunting appellant. This was known to appellant, or could have been evidently from the testimony, which is sufficiently collated in' the original opinion, and the witnesses by whom these facts could have been proved were at the trial, and one of them testified that deceased wanted to borrow money from her with which to rent a pistol or buy it. Appellant, of course, was then apprised of the fact, and it became his duty at once to investigate these matters. There seems to be a direct want of diligence on his part to follow up this matter, to ascertain whether or not deceased did in fact rent a pistol from a pawnshop.

Believing there is no real merit in the application, the motion for rehearing is overruled.


author: HARPER, J.

text:
    HORTON v. STATE.
    (No. 3329.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.
    Rehearing Denied Nov. 25, 1914.)
    Criminal .Law (§ 1114) — Appeal—Statement of Facts.
    Where the record contains no bill of exceptions and no statement of facts, and where the indictment charges the offense of which defendant was convicted, there is nothing presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Bert Horton was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Harmon & Harmon, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, from which judgment of conviction he prosecutes this appeal.

However, in the record there are no bills of exception, and no statement of facts accompanies the record. Under 'such circumstances, as the indictment charges the offense of which he was convicted, there is nothing presented for review. There are questions presented in the motion for new trial, which would indicate that appellant’s defense was that he had purchased the pistol and was carrying it home, which issue the court did not present to the jury. But without the evidence heard on the trial, we cannot say that the court erred in not doing so.

The judgment is affirmed.


text:
    ECHOLS v. STATE.
    (No. 3245.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    On Motion for Rehearing, Nov. 25, 1914.)
    1. Homicide (§ 191) — Self-Defense—Character of Accused — Evidence.
    While, in a homicide ease, accused may, to show that deceased was a violent and dangerous man, testify that deceased had, prior to the homicide, shot accused and his brothers, he may not go into the merits and details of the shooting, especially where the merits had been foreclosed by adjudication in court, and accused was permitted fully to disclose the circumstances of the shooting and what led up to it.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 414; Dec. Dig. § 191.]
    2. Homicide (§ 194) — Self-Defense—Character of Deceased — Evidence.
    Whatever accused, pleading self-defense in a homicide case, may have known or heard that could have affected his mind, and had a tendency to lead him to believe that, from the conduct of deceased at the time, his life was in danger, was admissible.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 417-419; Dec. Dig. § 194.]
    3. Homicide (§ 191) — Self-Defense — Former Difficulty — Knowledge of Witness.
    In a homicide case, in which self-defense is pleaded, a witness may not testify what he knew of a former difficulty between the parties, where accused had received no information, affecting his state of mind, from the witness.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 414; Dee. Dig. § 191.]
    4. Homicide (§ 188) — Self-Defense—Acts of Third Persons.
    In a homicide case, evidence that a witness carried a pistol because he had heard of a prior difficulty between accused and deceased, and was afraid of deceased, is outside the issues and inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    5. Criminal Law (§ 541) — Evidence—Preliminary Examination.
    Where a witness at the examining trial, is not shown to be dead or beyond the jurisdiction of the court, his testimony cannot be shown by witnesses who heard him testify.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. § 541.]
    6. Criminal Law (§ 1171) — Appeal—Harmless Error — Remarks of Counsel.
    Por a prosecuting attorney to say of a witness who had testified at the examining trial, but not at the trial itself, that he did not believe his testimony, and that he wanted the witness at the trial, is improper but not prejudicial, where the testimony of the witness went before the jury.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    7. Homicide (§ 190) — Evidence — Threats Against Third Person.
    In a prosecution for homicide, threats by deceased against one other than accused are inadmissible, where accused had never heard of any such threats.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.]
    8. Homicide (§ 187) — Evidence — Acts of Third Persons.
    In a prosecution for homicide, in which it was the theory of the state that deceased, when he saw accused, got behind B. to shield himself, and the theory of. the defense that deceased placed B. in front of him and advanced on accused, and then attacked him, whether B. would have run away or gone backward, if he had been stronger than deceased, is outside the issues and inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390% ; Dee. Dig. § 187.]
    9. Criminal Law (§ 1091) — Bills of Exceptions — Questions to Witnesses.
    Where a bill of exceptions complains of a question to a witness, but does not contain the answer expected to be elicited, the bill is incomplete.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2S28-2833, 2843, 2931-2933, 2943; Deo. Dig. § 1091.]
    10. Witnesses (§ 330) — Credibility—Competency of Evidence.
    In a prosecution for homicide, an objection to a question to a witness as to why he resigned the office of justice of the peace is properly sustained, where it was not contended that he resigned for any reason which would affect his credit as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    11. Witnesses (§ 372*) — Questions—Assumption of Facts.
    Questions to a witness to show interest and bias, which assume facts not in evidence, are properly disallow'ed.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    12. Witnesses (§ 372) — Bias — Competency of Evidence.
    To show the bias of a witness, a question is too general which asks whether he had not expressed his feelings, etc.; but the parties, the time, and the place should be pointed out.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    13. Criminal Law (§ 1166%) — Remarks of Court — Prejudicial Error.
    Where defendant, to lay a foundation for the introduction of the testimony of a witness at the examining trial, showed that the witness left the jurisdiction of the court because he did not wish to be bothered with the trial, etc., a statement of the court, “Gentlemen, it appears to me that the witness has skipped out for the purpose of keeping away from the court,” though improper, is not prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    14. Criminal Law (§ 655) — Conduct of Trial — Reprimand oe Counsel.
    If the court feels called upon to reprimand counsel, he should first send the jury from the room, and then use such measures as will compel respect for his ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; D'ec. Dig. § 655.]
    15. Homicide (§ 250) — Evidence—Murder.
    In a prosecution for homicide, evidence held sufficient to sustain a conviction of murder.
    [Ed. Note. — For other cases, see I-Iomicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    16. Homicide (§ 8) — Instruction as to Punishment — What Law Governs.
    Under Code Cr. Proc. 1911, art. 743, providing that error in the charge will not cause a reversal, unless objected to when presented to counsel for inspection, the failure to object or to raise an objection, in the motion for new trial, to an instruction in a homicide case, based on the theory that accused would be punished if convicted under the law as it existed at the time of the commission of the ofíense, would be treated as an election to be tried under the old law, though, in absence of election, he was entitled, under Pen. Code 1911, art. 17, to lie punished under the new law, as it ameliorated the punishment.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Bill Echols was convicted of murder, and he appeals.
    Affirmed.
    Morrison & Morrison, of Big Springs, Shepherd & Sandusky, of Colorado, Tez., and Woodruff, Christian & Woodruff, of Sweet-water, 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 convicted of murder, and his punishment assessed at life imprisonment in the penitentiary.

The killing occurred in Howard county, and the venue changed to the county where the trial was had. The state’s contention is that ill will existed between deceased and appellant. Appellant had gone into the office of Dr. Leach, armed with a shotgun, and kept watch until deceased came along on the opposite side of the street, when he stepped out and raised his shotgun as if to shoot, when deceased jumped behind W. N. Brown and undertook to keep Brown between him and appellant for some time. Brown testified that he begged appellant not to shoot; that appellant told him (Brown) to get out of the way or he would kill them both, circling around all the time to get in position where he could shoot the deceased, Clayton Black; that, as soon as he did get in position, he shot and killed Black. Coffman testifies that he went out there, and, from ap-' pellant’s actions, he was afraid he would shoot again, and requested him not to do so; appellant replying, “He is as dead as hell.”

Appellant’s contention is that he was sick and was being waited on by Dr. Léach, and he was on his way to Dr. Leach’s office for treatment when he saw deceased; that deceased jumped behind Brown, and caught hold of Brown, and kept advancing towards him, keeping Brown in front; that, when deceased and Brown got near him (appellant), deceased shoved Brown aside and jumped at him; that he had been shot once before by deceased, and he thought deceased intended to kill him, when he fired. He gives, as a reason why he carried the shotgun, that threats had been communicated to him that deceased had made, and he carried the gun for his protection.

The court submitted all the issues made by the testimony in a way not complained of by appellant, when the charge was submitted to him for his inspection. No special charges were requested, and the only matters presented for review relate to the action of the court in ruling on the admissibility of the testimony introduced and offered to be introduced. There are some 14 bills of exception in the record, a number of which may be grouped.

It is made to appear that, some time before this difficulty, deceased had shot appellant, and had also shot two of his brothers, and the record discloses that each of the parties since that shooting had made divers threats. The court permitted appellant to testify and to prove by others that deceased had shot him; the ball striking him in the back. Appellant desired to introduce proof relating to that shooting, and to testify in regard thereto himself — to give his version of that affair. This the court declined to permit him to do. It is made to appear in the record, by testimony introduced by appellant, that deceased, when first tried for shooting him, was convicted and sentenced to five years in the penitentiary, the case being reversed by this court; that he was again tried and found not guilty of any offense in so doing. The case that was appealed to this court will be found reported in 145 S. W. 944, and the facts will be there found fully stated; therefore it is unnecessary for us to state the evidence appellant desired to introduce. Appellant also desired to introduce the evidence and attendent circumstances accompanying the shooting of his two brothers by deceased. At least one of those cases was also tried and appealed to this court, and will be found reported in 143 S. W. 932, and the facts in that case will be found therein stated. So it is unnecessary for us to state what evidence appellant desired to introduce as to this matter. It is thus seen that the merits attendant upon those matters had been tried out in the courts and fully determined, and the question is: Did the court err in not permitting the merits of those cases to be again gone into in this case, which of necessity would have resulted in their retrial and detracted the attention of the jury from the issues involved on the trial of this case? The court permitted appellant to introduce evidence tending to show the reputation of deceased was that of a violent and dangerous man, of all threats that had been made by deceased, whether communicated to appellant or not, the fact that appellant on a former occasion had been shot by deceased, and that deceased had also shot his two brothers, and any and all acts of violence that appellant claimed he had heard deceased had been guilty of; and this, we think, is as far as he should have permitted appellant to go. This question was decided in Menefee v. State, 149 S. W. 142, and it was there held:

“The rule we understand'“'to be well settled that the details of extraneous crimes or supposed extraneous crimes will not be permitted even to show motive.”

In Johnson v. State, 167 S. W. 738, we held:

“To try the merits of these extrinsic matters would detract the minds of the jury from the merits of the ease then being tried, and be conducting a half dozen trials at one time. The fact that appellant had been informed that such matters occurred was admissible. That they did occur could be proven, but it was not permissible to go into details of these transactions, and the court did not err in so holding.”

In so far as the defendant himself was concerned, this court in the case of Wallace v. State, 44 Tex. Cr. R. 303, 70 S. W. 756, 100 Am. St. Rep. 855, has upheld the rule laid down by Wharton and Bishop:

“Mr. Wharton thus states the rule: ‘Taking the authorities as a whole, therefore, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, to prove that deceased was a person of ferocity, brutality, vindictiveness, and of excessive strength; such evidence being offered for the purpose of showing either: (1) That the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or (2) that he was in such apparent extremity as to make out a case of self-defense ; or (3) that the deceased’s purpose in encountering the defendant was deadly.’ Whart. Grim. Ev. §§ 69-84. Mr. Bishop says: ‘Where the defendant, to excuse or mitigate his acts, claims that they were in self-defense or passion, the particulars of the transaction being thus material, and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.’ 2 Bish. Crim. Proe. § 610.”

In the bill relating to the testimony of appellant, the bill shows:

“Now tell the jury why you were afraid if you met Clayton Black, or why you were afraid to meet Clayton Black? A. Why, because he had shot me once in the back. State’s Counsel: Wait a minute, Mr. Echols. Defendant’s Counsel: Just hold up till he makes his objection. Defendant: Because he— The Court: Wait, Mr. Echols. State’s Counsel: We urge objection to that to his going into detail; any other troubles being separate and independent transactions. The Court: Well, I will permit him this question. Defendant: Well, he— State’s Counsel: Well he undertook to go into detail right then, and said that it was because so and so, and I would like for you to instruct the witness how far he can go. The Court: Well, I will say this to you, Mr. Echols, you can— Defendant: Yes, sir. The Court: You can state that he shot you, so far as that is concerned ; that you and he had former difficulties, etc., but, as to going into details, just leave that out. Now, so far as details are concerned, just leave that out. Defendant’s Counsel: Now, note our exception. If your honor please, with all due deference to the ruling of the court, we think, under the authorities, that, when the defendant himself is put upon the stand, it has been held, time and again, and is the law, that he can tell of the circumstances in detail that caused him to act at the fatal conflict. The Court: Well, I will permit him to. Defendant’s Counsel: And, for that purpose, we want to prove by this defendant everything that prompted him to carry the gun and everything that prompted him to shoot Clayton Black. To show the jury why he shot him. The Court: I will permit that to be done, but there is no use of going into all the details of the former trouble.”

The court, in approving the bill, states:

“'This bill is approved with this explanation: I held that this witness could state any fact or circumstance or any threat of deceased that in any manner had any effect upon his mind at the time of the homicide, but did hold that the details of the former troubles between him and his brothers with deceased could not be testified to by him in this case. And his evidence will show what his testimony was in these particulars.”

It is thus seen by the bill that, in ruling on the objections made, the court held:

“That the defendant would be permitted to tell of the circumstances that caused him to act at the fatal conflict, and to prove everything that prompted him to carry the gun, and everything that prompted him to shoot Clayton Black — to show the jury why he shot him.”

And, as the court refers us to the testimony in his qualification of the bill, we quote the following from his testimony:

“When I started to the doctor’s office, I took my gun with me. I took the gun because I was afraid that I would meet Clayton Black. I heard that he was in town. I was afraid to meet Clayton Black, because he shot me in the back. I was in front of Riley’s store on the gallery in the town of Coahoma, when he shot me. I-Ie also shot my two brothers, Price and Ab. The shot hit me right about there [indicating] to the right of my backbone, right under the shoulder. It was cut out right hero [in front under the collar bone]. Some people think that my strength was diminished and weakened therefrom; I don’t know. I haven’t been so stout since. I had a throat trouble and a good while, but it got worse after that wound. I am going on 57 years old. It was something near two years ago that I received that wound before I carried the gun on the Sunday morning of the shooting of Clayton Black prior to April 28th. I weighed about 150 pounds. Before I was shot I weighed about 164. I was not as weak in lung power then as I am now. To some extent the shooting had weakened my power of speech. The throat trouble also added to the reducing me to this condition. Prior to the 28th day of April, 1912, I knew the general reputation of Clayton Black as being that of a dangerous man or a peaceable and quiet inoffensive man in the community in which he lived. It was bad. I knew he was a violent and dangerous man, and he shot me, and I knew he would do it again if he got a chance. I had received a communication of a threat by Clayton Black to take my life just prior to the day X took the gun. I heard it the evening before, Saturday evening. I was at John Bell’s. Ben Bell’s brother was the man that had told me. John Bell was shaving me, as well as I can recollect. He told me, in the presence of John Bell, that the first time he met one of us that one or the other of us would go to hell without a chart. That is the words he said. That was one of the reasons that caused me to take my gun with me when I went to receive that medical treatment on Sunday. One reason why I took my gun was because that he had shot me before. No, no other reason; no other than that he shot my brothers. No other reason that I had particularly, except what I had heard. A year or two. before that he had made a talk to old man Nolan. I was standing near the post office gajlery, and he came up and looked around. Old man Nolan asked him, ‘Why do you want to hurt old Bill? he never did do you a bit of harm,’ which I never had. I never had when he shot me. Never had had a cross word with the man in my life. Mr. Nolan told me about it afterwards. I never heard him make it. Mr. Nolan came and told me the talk. He says, ‘now, I just wanted him to-make a move; I just wanted to kill him.’ Yes, that Clayton Black said that about me, that ‘I just wanted him to make a move; I wanted to kill him.’ That threat was communicated to me about a week prior to the time he shot me. It was at the post office that I saw Clayton. I went to town every once in a while. I think Clayton Black was about 27 years or 28 years old, maybe 30. I don’t know; approximately or in the neighborhood somewhere of 30 years. I would suppose that he was over six feet tall. I don’t know; might have been. He was a big man. I don’t know what his weight was. He was a very large and muscular man, stout, robust, and powerful in strength. I know that he was. I regarded him as a much more powerful man than I was in strength.”

It is thus seen that the court allowed appellant a broad scope in testifying to the injury he received, etc., but did not let him go into how the first difficulty originated, and all the details leading up to the shooting, but did let him tell all that took place at the time of the shooting, and we think this was as far as he should have been permitted to go. Of course, whatever a defendant may have known or heard (when the plea of self-defense is made) that could have affected his mind, and had a tendency-to lead him to believe that, from the conduct of the deceased at the time, his life was in danger, should be admitted in evidence. He is entitled to have that much of a former difficulty or difficulties which he personally knew, or which he had been told about prior to the fatal encounter admitted, but no more, and in this . case we think the court adhered to that rule. But there was no error in refusing to permit the witness John Bell to testify what he individually knew about the former difficulty between deceased and appellant.- Appellant in his testimony does not claim that he received any information from John Bell in regard to that matter, and what John Bell knew about it could have no effect on appellant’s state of mind at the time of the fatal encounter, nor be of any aid to him in passing on the conduct of deceased at that time.

The court permitted the witness John Bell to testify to all threats he said he had heard deceased make at any time, and the further fact that he had communicated such threats to appellant. As to the reason why John Bell was carrying a pistol on the day of the homicide, it would be immaterial to any issue in the ease; however, the court did permit him fo testify that he was carrying it because he personally feared a difficulty with the deceased, but this fact would not authorize the witness to go ahead and detail what he knew and had heard about the difficulty between deceased and appellant some two years prior to this time. The witness Bell was not on trial for carying the pistol, and what might have influenced him (Bell) could have no bearing on what had influenced appellant in firing the shot that killed deceased. The witness Bell was not charged with having any criminal • connection with this killing.

The court did not err in refusing to permit the witnesses Debenport and Harwell to testify as to what they heard Ben Bell testify at the examining trial. It was not shown that the witpess Ben Bell was dead nor beyond the jurisdiction of the court. The remark that counsel for the state made that they wanted “Ben Bell here, that they did not believe his testimony,” ought not to have been made while conducting the examination of the witnesses, but, if Ben Bell had been there and testified, counsel could have made that argument in addressing the jury, and it is not a matter for which we would feel authorized to reverse the case, as the testimony of the witness went before the jury.

Neither was it improper for the court to refuse to permit the witness Sandusky to testify what deceased had said about John Bell. Appellant does not claim that he had ever heard of it prior to the shooting, and any threat that deceased may have made to do violence to John Bell would not be .admissible. John Bell was not on trial, nor charged with any offense, and it is only acts of violence of which defendant knew or had heard of which are admissible. Patterson v. State, 56 S. W. 59; Branch’s Crim. Law, § 473. In this section of Mr. Branch’s work is collated the authorities, and, by perusal of them, it will be seen when testimony of specific acts are admissible, and how far one may go in adducing such testimony. The facts of such cases are never retried.

It appears by bill No. 7 that, when the witness W. N. Brown (whom deceased had in front of him), had answered on direct examination that, if deceased “had not had hold of him he would have run,” on motion of defendant this was excluded, and no exception was reserved to it, but on cross-examination he asked the witness, “If Clayton Black had not been stronger than you, you would have been inclined to have gone backwards instead of forward, would you have not?” which question was objected to on the ground that it was argumentative, which objection was by the court sustained. It was the acts and conduct of deceased, and not the acts and conduct of Brown, that defendant relied on to present self-defense. What Brown would have done under different circumstances would be immaterial to any issue in the case. He testified in full as to the acts of deceased, and the way they went, and this is what would have made an impression on appellant’s mind, and not what Brown might have done if he had been stronger than deceased.

In bill No. 8 the question propounded is given, but not the answer expected to be elicited; therefore the bill is incomplete. But any answer Brown could have given to the question would have been but an opinion, and not a statement of any fact.

Bill No. 9, as qualified by the court and accepted by appellant, presents no error. The court says the witness Brown had repeatedly explained ¿is actions and whereabouts as well as that of the deceased, giving their positions, and the continuous questioning had assumed the form of argument instead of permitting the witness to state the facts.

Neither did the court err in sustaining the objection to the question propounded to the witness Coffman as to why he resigned the office of justice of the peace. It is not contended that the answer could or would have shown that the witness had been guilty of any felony or other offense involving moral turpitude; consequently the answer could not and would not have been admissible to affect his credit as a witness.

Appellant, as he contends, to show the interest and bias of Jim Lee 1-Iart, a witness for the state, asked him “if he was in the room with Johnson a short time before Johnson shot Will Echols in the back.” Johnson was not a witness in this ease, was not present when appellant shot deceased, and of course the court correctly sustained the objections. Appellant’s counsel then changed the question and asked if he “was not present in the house a short time before deceased Clayton Black shot Bill Echols in the back,” some two years before this difficulty. Objection was made that this did not tend to show interest or bias, and the court instructed counsel to get at it in the proper way, to which remark of the court, and action of the court in sustaining the objection to the question propounded,'appellant excepted.* In approving the hill the court states:

“Prior to asking the question presented in this bill, counsel for the defendant asked this witness the following questions, eliciting the following answers, to wit: ‘Q. Wasn’t you working for him the very time that Black shot Bill Echols in the back, and from your house? A. I was working for Tom Johnson. Q. Johnson’s house? A. Xes, sir; that was Johnson’s house. Q. Wasn’t you in the house with Clayton Black when he shot Bill Echols in the back? A. I was not. Q. Where were you then? A. I was at the hotel. 'Q. How came you at the hotel? Did you go there to keep from seeing— A. I went there to eat my dinner.’ Then, following a number of, other questions, the question presented in the bill was asked, followed up by an explanation of defendant’s counsel that he had a right to show the interest of this witness, and, • if it be a fact that he was standing there in the same room with Black and Johnson when Bill Echols was shot in the back, he had a right to prove it. The question and explanation was clearly assuming facts that were not even shown in evidence, but by this witness the contrary was shown; that is, that he was not in the room at all when Black shot Bill Echols. The effect of my holding was that I would not permit assuming of facts not in evidence in propounding the question.”

As qualified, the bill presents no error.

While Jim Lee Hart was testifying on cross-examination, appellant propounded the following question:

“Is it not a fact that you, to divers parties in the last two years, have expressed'your feelings as — ”

Here the state interposed objection that the question was too general, and appellant should be required to name the parties, time, and place. The objection was sustained, and the court did not err in so ruling, as the objection correctly states the law. If appellant desired to inquire into those matters, he should have named the parties to whom, and the time and place where, expressions had been made.

There was no error in admitting the testimony of the witness McQuerry in rebuttal. The appellant had testified he did not advance towards deceased. The testimony of this witness showed, if believed, that appellant did go towards deceased before he fired the shot that killed him.

It appears that Ben Bell, who had testified at the examining trial, was absent, and appellant was attempting to show that Ben Bell had permanently removed from the state, so that his testimony, given at the examining trial, might be proven up. Appellant introduced Abe Nolan, who testified he knew Ben Bell, and saw him in Bosque county; that Ben Bell told him he was going to leave to keep from being bothered with this case; that he said he was going to Oklahoma; that after he first left he came back in about a month and left again; that the witness had not heard from him since he left the second time; that Ben Bell had said that he did not intend to be at this trial; that he did not want to be bothered with the ease. At this time the court remarked:

“Gentlemen, it appears to me that the witness Ben Bell has skipped out for the purpose of keeping away from this court.”

The court should not have made this remark in the presence of the jury; but, as appellant had just proven the fact “that the witness had skipped out” by the witness Nolan, no injury could have been done him by the remark. We do not deem it necessary to reiterate the colloquy between the court and appellant’s counsel. The court contends that appellant’s counsel had been very aggravating by repeatedly asking questions to elicit testimony that he had excluded ignoring the rulings of the court, etc., while the colloquy shows that the court also lost his temper. This never should occur on either side. The court has a right to and should require obedience to his rulings, and counsel should respect them; and, while we know it is very exasperating when counsel continually seek to introduce testimony that the court has held inadmissible, yet the court should never, in the presence of the jury, lose his temper and make remarks that necessarily follow such a state of mind. If the court feels called upon to reprimand counsel, he should first send the jury from the room, and then use such measures as will compel respect for his rulings.

These are all the bills in the record (some 14 in number), and the motion for a new trial is but a reiteration of the grounds stated in the bills of exception. The only additional ground alleges the insufficiency of the evidence. If the jury believed the evidence offered in behalf of the state, it amply supports the verdict.

As before stated, the above are all the grounds relied on in the trial court, but in this court, in the able oral argument made on the submission of the case, appellant’s counsel contend that as the record shows that the alleged offense took place in 1912, before the law was passed repealing the law dividing murder into first and second degrees, consolidating the elements and defining it as only one offense, the court should have charged the jury the law as it existed at the time of the commission of- the offense, but should have applied the penalty to murder of the first degree as now fixed. Of course appellant is right in his contention that he had a right to have the jury instructed the law as it existed at the time of the commission of the offense; that is, have the court define murder upon express malice, and the punishment to be assessed therefor as now fixed by law, unless he elected to be tried under the old law (article 17, Penal Code), and define murder upon implied malice, and the punishment for that offense, if the evidence raises the issue of murder upon implied malice, as contradistinguished from express malice. This the court did. The state’s theory (and it introduced evidence to support it) was lying in wait, and a killing as soon as deceased appeared in view and an opportunity to shoot occurred. Its evidence tended to show that appellant had gone to the doctor’s office, and there awaited the appearance of deceased on the street; that, as soon as he came in view, appellant came out of the office with the gun raised in shooting position; that deceased jumped behind W. N. Brown, and appellant advanced on them, saying to Brown, “Damn you, get out of the way or I will shoot you.” Brown says he begged appellant not to shoot Black, but that appellant kept stepping around to get in position where he could shoot Black, and, when he did so, he fired and killed him; that Black said not a word to appellant, but kept trying to keep behind, so that appellant could not shoot him. This makes a case of murder upon express malice, and does not raise the issue of implied malice.

Now the defendant’s side of it: He says he was going to the doctor’s office when he saw deceased. He does not claim that deceased said a word to him, but in the light of the former difficulty, and the threats that had been communicated to him, when deceased jumped behind Brown he thought his life was in danger. That he did not advance, but that deceased kept shoving Brown towards him, and, when they got near him, he shoved Brown to one side and jumped at him, when he fired, believing that deceased was then and there about to kill or do him some serious bodily injury. This presents self-defense, and, had the court not so instructed the jury, grievous error would have been committed; but it may be contended that, even though the jury did not think that appellant had a right to believe his life was in danger or believe he was in danger of serious bodily injury, yet the mere fact that deceased jumped behind Brown was enough to cause appellant to commit a sudden or rash act, and that appellant at that time, under such circumstances, would be incapable of forming a design to kill with a sedate and deliberate mind, and, under this state of case, an issue of a killing upon implied malice was raised by the evidence, and he should not have been convicted of any higher grade of offense, but this was determined adversely to him by the jury. The charge was submitted to appellant’s counsel before it was read to the jury, and no such objections raised at the time, and no such complaint made in the motion for a new trial, but in this court for the first time appellant contends that the penalty should have been charged as it now exists, and not as it existed at the time he committed the offense, as it had been ameliorated. He had the right of election, and we must presume, in the absence of any complaint in the court below, that he did elect, as the Code authorized him to do, to be tried under the law as it existed at the time the offense was committed.

It is just such cases as this that caused the Legislature to amend old article 723, now 743, of the Code of Criminal Procedure, and provide that the errors in the charge should not be cause for reversal, unless objected to. when presented to counsel for their inspection. Errors of the character now complained of in the charge were under the old law raised in the motion for a new trial, and this court, because of such matters,’ felt impelled to reverse the case. The Legislature desired to correct what it considered an evil, and said this court should not reverse under such circumstances, and should not consider such grounds on appeal when the trial court’s attention was not called to such matters before tile charge was read to the jury. The court, in submitting the penalty, authorized a punishment to be assessed as low as five years in the penitentiary, if they found the killing occurred upon implied malice, and this he ought to have done. Chapter 138 of the Acts of the Thirty-Third Legislature, Session Acts on páge 278. In section 5 of the bill it recites, “The fact that there are many reversals in criminal cases caused by errors in the charge of the court, due to the fact that such errors were not pointed out to the trial judge before the charge was given,” created an emergency, etc. This evidences the fact that the Legislature intended that á case should not be reversed unless the error was pointed out to the trial judge during the trial of the case, and before the charge was read to the jury. And as this error in the judge’s charge, if error it be, was not called to the trial court’s attention either befqre the charge was read to the jury or in the motion for a new trial, it cannot be raised for the first time in this court, as it did not prevent appellant from having a fair and impartial trial, in that the jury, by the charge as given, was authorized and permitted to assess the punishment in accordance with the law as it existed at the time he committed the offense; and, as he had the right to be tried under that law, we presume he did so elect', else able counsel would have called the court’s attention to such matter at the time the charge was presented to them.

The judgment is affirmed.

On Motion for Rehearing. ■

This case was affirmed on a former day of this term, and although appellant assigned many grounds in his motion for new trial, all of which were passed on in the original opinion, in his motion for rehearing in this court appellant assigns but one ground, and it was not raised at the time of the trial nor in the motion for new trial, and is sought to be raised for the first time in this court.

The crime of which appellant was convicted is alleged to have occurred April 17, 1912. At that time the law divided murder into two degrees: Murder upon express malice and murder upon implied malice. The punishment for murder upon express malice was by death or imprisonment for life, while the punishment for murder upon implied malice was by confinement in the penitentiary for any length of time not less than five years. The court so instructed the jury in his charge, and the jury found appellant guilty of murder upon express malice, and assessed his punishment at imprisonment in the penitentiary for life. The court submitted his charge to counsel for inspection; among them being some of the ablest lawyers in that section of the state where the trial took place. No objection was made to the court thus instructing the jury. In the motion for a new trial, no complaint of the charge in this respect was urged. However, in this court for the first time, months after the trial court had adjourned, appellant contends that, as the trial took place April 23, 1914, he had a right to have the law applied as fixed by the acts of the last Legislature, wherein the degrees of murder were consolidated, and the punishment fixed for murder upon either express or implied malice at either death, imprisonment for life, or any term of years not less than five. As the punishment for murder upon express malice was authorized to be ameliorated by the jury, he had the right to have the punishment affixed at the time of the trial to the offense. This no one will question, but the law that so says also says that, under such circumstances, the person on trial shall have the right of election as to which punishment he will have submitted to the jury. Article 15 of the Penal Code reads:

“When the penalty for an offense is prescribed by one law, and altered by a subsequent law, the penalty of such second law shall not be-inflicted for a breach of the law committed before the second shall have taken effect. In every such case, the offender shall be tried under the law in force when the offense was committed, and, if convicted, punished under that law, ex-, eept that when, by the provisions of the second law, the punishment of the offense is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”

Appellant was not represented by inexperienced men, but able and astute lawyers. They are supposed to know the law; at least the law charges them and all other men with knowledge of its provisions. When the-charge as written, applying the law as it existed at the time of the commission of the offense, was submitted to them, they made no objection thereto, as the law now provides they shall do if they object to any of its provisions. As they made no complaint, thereto in the motion for a new trial, and none while the case was pending in the court where tried, the presumption is that, as the-law authorized them to do so, appellant elected to be tried under the law as it existed at the time of the commission of the offense, which they had a perfect right to do. Complaints of this character cannot be raised for-the first time in this court, but must be raised in the court where the case is tried. We had occasion to discuss this question in the-case of Wright v. State, 163 S. W. 977, and James v. State, 163 S. W. 61, and in many cases since then, and we refer to those cases wherein we give reasons why the question here presented cannot be raised in this court, for the first time.

The motion for rehearing is overruled.


text:
    McCAULAY v. STATE.
    (No. 3316.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    1. Criminal Law (§ 1124) — Appea:l—Bill of Exceptions — Statement of Facts — Necessity.
    Questions presented in the motion of accused for a new trial cannot be reviewed, where there are no bills of exception in the record or statement of facts accompanying it.
    I Ed. Note. — For other cases, see Criminal Law, Gent. Big. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    2. Criminal Law (§ 1122) — Appeal-Request to Charge — Refusal—Review.
    Refusal of requests to charge cannot be reviewed, where the evidence introduced at the trial is not brought up.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Daniel McCaulay was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $250 and 60 days’ imprisonment in the county jail.

There are no bills of exception in the record to the admissibility or rejection of any testimony. Neither does any statement of facts accompany the record. Consequently, no question is presented in the motion for new.trial we can review.

A number of special charges were requested, but without the evidence before us we cannot say whether or not they should have been given.

The judgment is affirmed.


text:
    SEATS v. STATE.
    (No. 3317.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    1. Criminal Law (§ 1056*) — Appeal—Reservation of Grounds of Review — Excep- . TIONS.
    Errors in the charge cannot be reviewed on appeal in a criminal case, where no exception was reserved to the charge before it was read to the jury, or at all.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. 1056.*]
    2. Criminal Law (§§ 1121, 1122*) — Appeal-Record — Matters Presented for Review.
    The sufficiency of the evidence to sustain a conviction and the refusal to give instructions cannot be reviewed, where the evidence is not in the record on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 293.8, 2939, 2940-2945; Dec. Dig. §§ 1121, 1122.*]
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Jim Seats was convicted of assault to murder, and he appeals.
    Affirmed.
    G. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a conviction for assault to murder; the punishment being assessed at two years’ imprisonment in the xien-itentiary.

The record is before us without a bill of exceptions or a statement of facts.

The motion for new trial is based upon the insufficiency of the evidence, and refusal to give certain instructions, and errors in the charge. There was no exception reserved to the charge before it was read to the jury, and, in fact, no exception was reserved. The evidence not being before us, the other matters cannot be considered.

The judgment is affirmed. ,


author: HARPER, C. J.

text:
    GINTHER v. DE ZABALGOITIO et al. (two cases).
    (Nos. 394, 395.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 7, 1914.
    Rehearing Denied Nov. 12, 1914.)
    Injunction (§ 122*) — Temporary Injunction —Sufficiency of Affidavits on Information and Belief.
    A temporary injunction granted on an ex parte application will be dissolved where the petition upon which it was granted alleged a number of the material facts upon information and belief and was verified by an affidavit that it was true except as to allegations stated upon information and belief, and that the affiant believed those to be true, as the affidavit in support of the facts alleged as grounds for the issuance of a temporary injunction must be direct and unequivocal.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*]
    Appeals from District Court, El Paso County; A. M. 'Walthall, Judge.
    Actions by C. F. Morse, for himself and as agent and attorney in fact for Rosa Campo de Zabalgoitio and others, one against the El Paso & Southwestern Railway Company, and the other against the El Paso Southern Railway Company, in each of which Charles Ginther intervened. • From orders granting temporary writs of injunction, the intervener appeals.
    Reversed and remanded, and injunctions dissolved.
    S. N. Russell and Wallace & Gardner, all of El Paso, for appellant. Burges & Burgos and Hawltins & Franklin, all of El Paso, for appellees.
   HARPER, C. J.

C. F. Morse, for himself and as agent and attorney in fact for Rosa Campo de Zabalgoitio, Lucian Veyan, Rodolfo Veyan, Camarino Martinez, and Jose M. Juardo, brought this suit for the possession of certain wool or its reasonable value, and for an injunction against appellants, the El Paso & Southwestern Railway Company.

The petition alleges that in March, 1913, a conspiracy was entered into between Francisco Villa and Venustiano Carranza and others to overthrow the government of Mexico; that the plaintiffs were driven therefrom, and, as this plaintiff is informed and believes, a large part of their property was unlawfully seized and held as disposed of by said Villa and Carranza and those acting under them; that in May, 1914, they were lawfully seized and possessed of certain raw wool, in sacks, bags, and bales, located >in the city of Durango, republic of Mexico; that said wool has been commingled, one with the other, beyond distinction. Plaintiff further says that heretofore, to wit, on or about the 25th day of May, 1914, in the city of Duran-go, in the republic of Mexico, certain parties acting under the orders and authority of the said Francisco Villa, unlawfully seized and took possession of said personal property hereinabove described, shipped the same from said city of Durango to the city of Juarez, in the state of Chihuahua and republic of Mexico, and that on the 15th day of June, 1914, certain persons whose names are unknown to this plaintiff, and whom he is not otherwise able to describe, but who acted for and on behalf of the said Villa and his associates, transferred said raw wool aforesaid, packed and baled as aforesaid, to certain ears described as follows, to wit, “N. O. de M. 9101” and “N. O. de M. 9027.” Plaintiffs say that said personal properties hereinabove described have been sent into the United States of America, and into El Paso county, Tex., and are now in El Paso county, Tex., in the possession of the El Paso & Southwestern Railway Company, in the cars hereinbefore last described, and that it is the purpose of the said railway company, unless prevented by writ of injunction herein, to carry said personal properties out of El Paso county, Tex., and out of the state of Téxas, and beyond the jurisdiction of this court, and this plaintiff says that said personal properties were introduced into the United States and delivered into the possession of the said railway company as affiant is informed and believes, by reason of an agreement entered into by and between parties representing the said Eran-cisco Villa and his associates, and the said railway company, acting through its em-ployés, by 'which the said railway company furnished cars in Mexico to the said representatives of the said Villa and his associates to enable them to bring said wool aforesaid, packed and baled as aforesaid, into the United States, with the purpose and intent, on the part of the said Villa and his associates, and those representing them, and said defendant, El Paso & Southwestern Railway Company, and those representing it, to unlawfully deprive these plaintiffs of their property, and to appropriate it to the use and benefit of the said railway company. Plaintiff says that the said El Paso & Southwestern Railway Company, its officials and employes, knew, or have such information as would lead a reasonably cautious and intelligent person to know, that the said raw wool, packed and baled as aforesaid, is not the property of the consignor or the consignee, but that same was unlawfully taken from the : possession of these plaintiffs, and that it is the purpose and intention of the said Villa and his associates to unlawfully deprive these plaintiffs of the possession, use, and benefit of said raw wool aforesaid, and to appropriate the same to their own use and benefit, and to carry the said raw wool aforesaid beyond the limits of the state of Texas and of the United States for that purpose, or to Have the same transported beyond the limits of the state of Texas and of the United States for that purpose. This plaintiff says that if said raw wool aforesaid has been introduced into the United States without the payment of duties thereon, as this plaintiff is informed and believes, but in bond, then and in that event these plaintiffs are able and willing to pay the import duties upon the same, and hold themselves ready to do so, upon the surrender of the property to them, and they here and now offer to enter into any such bond as may be required to protect the El Paso & Southwestern Railway Company or the government of the United States against any loss in any sum, or of any nature or description whatsoever, by reason of the detention of the said raw wool aforesaid in the possession of the said railway company, as hereinafter prayed for. This plaintiff says that said wools aforesaid are now in the cars hereinbefore set forth, and in the possession of said' railway company, and that it is the purpose of the said railway company, as affiant is informed and believes, to immediately take the same without the jurisdiction of this court and out of the state of Texas, and that it will do so unless immediately restrained by writ of injunction in this cause; that the said Carranza and the said Villa and their associates are nonresidents of the state of Texas, so far as this plaintiff is informed and believes; that the removal of said raw wool aforesaid from out the state of Texas and the jurisdiction of this court will leave plaintiffs without any remedy of any kind, as a result of which they would suffer a great loss in money, to wit, the value of about $6,250, which in the ag-. gregate is of the reasonable market value of about $6,250; and that the injuries they would thereby suffer would be irreparable.

The petition is verified by the applicant, and the affidavit reads as follows:

“I, C. F. Morse, do solemnly swear that I am the agent and attorney in fact of the plaintiffs in the above styled and numbered cause, that I know the contents of the foregoing petition, and that the allegations therein contained are true, except such as are stated upon information and belief, and those I verily believe to be true.”

The trial court granted the temporary writ of injunction without issuing notice and without hearing, and thereafter Charles Gin-ther was granted leave and did intervene as defendant, and has perfected his appeal from the order granting the writ.

Appellant in an informal brief suggests that this cause should be reversed and the injunction dissolved, because the petition is insufficient because not verified as provided by law. Tbe rule in tbis state is well settled that in an application for a temporary injunction upon an ex parte bearing, tbe affidavit in support of tbe fact alleged in tbe petition as grounds for tbe issuance of tbe writ must be direct and unequivocal and an affidavit made upon information and belief is insufficient. Lane v. Jones, 167 S. TV. 177, and tbe eases there cited and reviewed. As will be noted from an inspection of tbe petition quoted above, there are a number of allegations material to tbe right of tbe issuance of tbe injunction which tbe petition upon its face discloses are based upon information and belief. Under tbe authorities cited, tbis is insufficient and requires a reversal.

Reversed and remanded, and injunction dissolved.