text:
    BERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    Rehearing Denied March 4, 1914.)
    1. Homicide (§ 163) — Evidence — Reputation op Deceased.
    Where, on a trial for homicide growing out of a dispute over some cornstalks, accused was permitted to prove a statement by deceased that he would break accused’s neck, and that he would die before he would let accused cut the stalks, though not communicated to accused, as bearing on the question of which party was the aggressor, and to show that deceased moved to accused’s place because he fell out with a third person, as going to show his character as a quarrelsome man and hard to get along with, and accused testified to prior difficulties, and that deceased was a quarrelsome, overbearing man, the state was properly permitted to show deceased’s reputation as a peaceable, law-abiding citizen.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 3.10-317; Dec. Dig. § 163.]
    2. Criminal Daw (§ 1124) — Appeal—Record —Matters to be Included.
    Where the trial judge, on a motion for a new trial on the ground that one of the jurors could not read or write, decided that he could read and write, and the evidence adduced on the hearing of the motion was not brought up on appeal by a proper bill of exceptions, the overruling of the motion would not be reviewed.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    3. Criminal Daw (§ 1064) — Appeal—Reservation oe Grounds op Review — Motion por New Trial.
    Where the motion for a new trial merely stated that the court erred in refusing to give certain specified charges, and in- giving certain charges without pointing out the error in the charge as given, or assigning any reason why the requested charges should have been given, the alleged errors would not be reviewed; there being no fundamental error complained of, since the errors must be pointed out to the trial court or they cannot be urged on appeal.
    [Ed. Note. — For other eases, see Criminal Daw, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Thomas Berry, Sr., was convicted of murder in the second degree, and he appeals.
    Affirmed.
    A. B. Watkins, N. Frank Faulk, W. D. Faulk,, and Miller & Miller, all of Athens, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at ten years’ confinement in the state penitentiary, froth which judgment he prosecutes this appeal.

The facts would show that John McGahan was a tenant of appellant during the years 1911 and 1912. The first trouble of any character that arose between them was in the fall of 1911 over a dollar, which appellant claimed McGahan had wrongfully appropriated to his own use. However, it appears that subsequent to this the relations between the two men became friendly, and were so at least during a part of the year 1912. It appears there were some words and misunderstanding over the hauling of a bale of cotton, selling some cotton seed, over pecans that grew on the rented premises, and over hut-ting the cornstalks on a tract of land rented by McGahan during the year 1912, and this latter trouble culminated in the death of Me-Gahan on the 13th day of November, 1912. This cornstalk land is variously estimated from four to ten acres in the testimony, and appellant had rented this land to his son, Thomas Berry, Jr., for the year 1913, and his son was anxious to cut the stalks on the land during the fall of 1912. Appellant insists in his testimony that deceased first gave his consent, but admits that he subsequently notified him and his son that they could not cut the stalks on this land; that he desired it for a pasture. Appellant and McGahan both went to see a justice of the peace in regard to their respective rights in the premises. It is clearly shown that, prior to the, time appellant’s son sought to and did in fact cut a part of the cornstalks, appellant and his son knew that deceased, McGahan, objected to the cutting of the cornstalks, and they went to the ground with this knowledge, appellant saying he went along to reason the matter with McGahan. When appellant and his son arrived at the cornstalk land, deceased and three of his children were either at this point, or near it, preparatory to picking cotton immediately after dinner. Appellant insists that, when he walked up and his son drove up with the stalk cutter, deceased was armed with an elm stick, and his fourteen year old daughter with an oak club. This is denied by the children of the deceased who were present.

Appellant’s contention as to the way the fatal difficulty arose is that, as his son drove up, the stalk cutter ran in a ditch, and he told his son, Thomas, to drive up; that deceased then approached him, and, after some words, struck him with the elm stick, and he then struck deceased with an iron poker he had in his hand, when deceased again struck at him, and, in stepping out of the way, he fell, when deceased got over him, and was in the act of striking him with the elm stick when a shot was fired; then a second shot was fired, and he caught deceased around the neck with the iron poker and pulled him down; that this constituted in full his acts; that he did not know his son, Thomas, was armed, and did not know he intended to shoot deceased; that his mission to the cornstalk land was a peaceable one, and he did no act which would or could render him guilty of the death of deceased.

The state’s case is that, as appellant and his son came up to the cornstalk land, Mc-Gahan told them not to go on the cornstalk land, wlien appellant said to Ms son, “Go right on,” when deceased, McGahan, walked up to appellant and said, “Go right on, heh,” when appellant struck deceased, and deceased reached down and picked up a root and hit appellant on the arm, when appellant again struck deceased, when deceased struck at appellant, and, as he did so, appellant stepped back and fell, when Thomas Berry, Jr., shot at deceased, deceased remarking, “Look out! look out!” when Thomas Berry, Jr., remarked, “H-1, you are the one to look out,” and fired again, when deceased fell to Ms knees, when appellant caught deceased around the neck with the iron poker, pulled deceased down and beat him, Thomas Berry, Jr., in the meantime proceeding to cut the cornstalks. The state’s witnesses say that, as Mr. Bass came up, appellant remarked: “Well, we killed him just as we told you we would.” Appellant and Mr. Bass deny that this remark was made, or that appellant beat deceased after Thomas Berry, Jr., had shot him. However, the testimony of Dr. Brewer as to the wounds found on the body would tend strongly to support the testimony of the state that appellant did beat deceased after Thomas Berry, Jr., had shot him.

The only bill of exceptions in the record relating to the admissibility and rejection of testimony is that the court erred in admitting testimony as to the general reputation of deceased as a peaceable, law-abiding citizen. It might be said here that the testimony would show that both appellant and deceased bore the reputation of being peaceable, law-abiding citizens. That appellant had the right to place his reputation in issue there can be no question; the only question being, Was the testimony offered by appellant such as authorized the state to prove the reputation of deceased? The appellant proved by one Holsenbeek the following facts: “Well, he said that he wasn’t going to let Mr. Berry cut those stalks; that, if Mr. Berry come down there to cut those stalks, he would break his damn neck, and that he would die before he would let Mr. Berry cut those stalks. That was about two weeks before the killing occurred.” TMs threat was never communicated to appellant prior to the fatal encounter, but it was admitted on the issue as to who, in fact, committed the first overt act. Again, the record discloses that, while Effie McGahan was testifying on cross-examination, the following occurred: The appellant asked Effie MeGa-han: “And Mr. Ivey and your father fell out, and you all then moved to Mr. Berry’s, did you or not? State: Wait a minute; we object to that as being immaterial whether he fell out or not with some other party; that wouldn’t justify Mr. Berry in taking the life of Mr. McGahan. Court: At what place was that? State: At another place and another time, two years before the killing. Court: Well, I will sustain the objection to what occurred two years before between another party. Defendant: Just a minute, your hon- or; that evidence goes first to the character of Mr. McGahan as to being a quarrelsome man, hard to get along with; and second, it will go to show the fact that Mr. Berry was kind-hearted and a good man.” The court then admitted the testimony. Appellant testified to deceased being a quarrelsome, overbearing man, to prior difficulties, and, under such circumstances, there was no error in permitting evidence of the general reputation of deceased. Of course, if appellant had not either directly or indirectly attacked the reputation of deceased, it would not have been proper for the state to introduce such evidence. But when the defendant had raised that issue by the evidence adduced by Mm, then, under all our decisions, it was permissible for the state to introduce evidence to meet the proof of defendant, and show, if it could, that deceased was not a violent, quarrelsome, and dangerous man, but was a peaceable, law-abiding citizen. TMs is the only bill of exceptions presented in the record in regard to the admissibility of the testimony adduced on the trial.

In Ms motion for a new trial, appellant contends that Geo. R. Archer, one of the special venire drawn and one of the jurymen selected to try this cause, could not read nor write, and attaches to the motion as an exhibit the affidavit of Ben Heliums, who swears that Archer can neither read nor write. In overruling the motion for a new trial, the court states: “On this day came on to be heard the motion of the defendant Thomas Berry, Sr., for a new trial in the above entitled and numbered cause, and it appearing to the court that the juror George Archer can read and write and that he so stated under oath when he was chosen as a juror, and the court finds that the affidavit attached to said motion is untrue.” The evidence adduced on this hearing is not brought before us to review; consequently we cannot and will not hold that the judgment of the court is without evidence to support the finding. If appellant desired us to review the judgment of the trial court in this respect, he should have presented us the evidence heard on the motion for a new trial in a proper bill of exceptions.

The first ground of appellant’s motion for a new trial reads as follows: “Because the court erred in refusing to give to the jury in charge the defendant’s special charge No. 1, which is as follows:” Then follows a copy of the charge requested. That is all that is in the motion for a new trial.' Following this is a complaint of the failure of the court to give each of the special charges requested by appellant. After thus complaining of thé failure of the court to give the special charges requested, appellant next complains of the charge of the court in the following language: “Because the court erred in para graph 1 of his main charge to the jury, which Is as follows, to wit.” Then appellant copies that portion of the charge relating to murder in the first degree; and in the next ground, in the same general way, complains of the action of the court as to the charge of the court on murder in the second degree and manslaughter; and the other paragraphs of the charge. In no instance does appellant seek to point out the error in the charge of the court, if error there be, nor does he assign any reason why either of the special charges should have been given. In a brief filed in this court by the able counsel for appellant, counsel do seek to point out errors-in the charge as given and reasons why the special charges requested should have been given in charge to the Jury. And we are frank to say that, if the questions had been raised in the trial court, some of them would present questions of difficulty, if not error.

But why is a motion for a new trial in the trial court a requisite to an appeal in this court? It is to point out to the trial court the errors, if errors there be, that the trial court may correct same by granting a new trial. It is only fundamental errors that' can be complained of for the first time in this court, and all other errors must be assigned in the motion for a new trial or in bills of exception and called to the attention of the trial court. If not thus assigned, it is too late to point them out in this court. Formerly it was permissible in civil cases in the motion for new trial to assign '‘that the court erred in the following paragraph of his charge” — setting out the paragraph— and then in the assignment of errors, filed after the adjournment of court, to specifically point out the errors in the paragraph; but this- was never the rule in this court, and now no such practice prevails any longer in the Supreme Court and the Court of Civil Appeals, but the error, if error there be, must be pointed out in the motion for new trial. The Legislature has provided that no assignment of errors can be filed, but in the motion for a new trial each matter in which it is claimed the trial court erred must be pointed out in the motion for a new trial, and the different courts on appeal will consider only such questions as are thus pointed out in the motion for a new trial. In the case of Byrd v. State, 151 S. W. 1068, we had occasion to review the statutes and decisions of this state, and we then held that, in the motion for a new trial, the error relied on for a new trial must be specifically pointed out, and since the rendition of that opinion the Supreme Court, the Court of Civil Appeals, and the Legislature have prescribed that this is a correct rule of law, and the uniform holding in all our appellate courts is now the error must be pointed out in the motion for a new trial, or the assignment will not be considered on appeal. In this ease, in the motion for a new trial, it is not attempted to point out any error in the charge of the court, nor reason assigned why either of the special charges requested should have been given. Of course, if what is termed fundamental error is in the record, it may be pointed out at any time, but no such error 'is apparent in this record. It has always been the rule in this court that the error, if error there be, must be pointed out to the trial judge in the motion for a new trial, or such assignment will not be considered by this court. See Byrd v. State, 151 S. W. 1068; Berg v. State, 142 S. W. 884; Ryan v. State, 142 S. W. 878, and cases there cited. In the motion for a new trial, no error is pointed out in the charge of the court, and no reason assigned why any of the special charges requested should have been given, nor error poured, out because of the failure of the court to give same; consequently such assignments are too general to be considered by this court.

There being no error pointed out in the motion for a new trial, the judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    McCRAW v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. Criminal Law (§ 1159) — Appeal — Review — Verdicts—Oonclusivenbss.
    In a prosecution for aggravated assault, where the testimony was conflicting as to whether the accused struck the party assaulted with a rock, the question was one of fact, and, having been fairly and fully submitted to the jury, the verdict will not be disturbed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-8083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 202) — Former Jeopardy —Identity of Offenses — '“Affray”—“Assault and Battery” — “Aggravated Assault.”
    Under Pen. Code 1911, art. 469, an “affray” is where two^ or. more fight in a public place, while an “assault and battery” is defined by article 1Ó08 as the use of any unlawful violence upon another with intent to injure, and under article 1022, subd. 8, becomes an “aggravated assault” where committed with a deadly weapon with intent to murder or maim, so that the offenses are separate and distinct, and a conviction for engaging in an “affray” does not bar a prosecution for “aggravated assault” under a plea of former jeopardy, nor does the doctrine of carving apply.
    '[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. § 202.

    For other definitions, see Words and Phrases, vol. 1, pp. 249-251; vol. 8, p. 7569; vol. 1, pp. 539, 540; vol. 8, p. 7582; vol. 1, pp. 270, 271.]
    3. Criminal Law (§ 200) — Former Jeopardy —Statute.
    Under Code Cr. Proc. 1911, art. 601, providing that a conviction shall not bar a prosecution for a higher grade of offense over which the court did not have jurisdiction, a conviction by a justice of the peace for engaging in an affray will not bar a prosecution for aggravated assault, even though growing out of the same transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    4. Assault and Battery (§ 97) — Verdict-Construction.
    A verdict, in a prosecution for an aggravated assault, reciting that the jury find the defendant guilty as charged in the indictment is sufficient to show a conviction for aggravated assault, and of no other offense.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § Í51; Dec. Dig. § 97.]
    Appeal from Coke County Court; 6. S. Arnold, Judge. '
    Willis McCraw was convicted for an aggravated assault, and he appeals.
    Affirmed.
    D. I. Durham, of Robert Lee, for appellant. J. E. Greer, Co. Atty., of Robert Lee, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was indicted for an aggravated assault alleged to have been committed upon J. K. Lofton by striking him with a rock, the same being a deadly weapon, alleged to have been committed on August 11, 1913. The jury found this verdict; “We, the jury, find defendant guilty as charged in the indictment, and assess his punishment at a fine of twenty-five dollars, $25.00.”

The evidence by the state was to the effect: That said Lofton was sitting down in a lumber yard. That appellant slipped up behind him and struck him in the head several times with a large rock, which was shown to have been a deadly weapon, and required by the court’s charge to be so found before they could find appellant guilty. After appellant had thus assaulted and struck Lofton, Lofton undertook to protect himself, and in doing so immediately fought the appellant; but appellant either knocked him down or threw him down, and got on top of him. Lofton called upon the bystanders to take him off, which they did. Subsequently, though how long is not shown, the same two parties, it seems, voluntarily fought in said lumber yard. Appellant denied that he at any time had struck the said Lofton with the rock. Others, in their testimony, supported him. This was a question of fact, however, fairly and fully submitted by the court to the jury, and they found against appellant, and this court cannot disturb the verdict on that account.

After said second fight, it does not appear whether the parties were separated, or got through with the fight; both combatants left the scene; Lofton, it appearing, went first up the street. The county attorney and sheriff were on the opposite side of the same street, and saw appellant coming along on the same side of the street that Lofton was, or was passing. The sheriff called appellant to where he and the county attorney were, and told appellant not to go up the way he was going, but to stay away from where Lofton was, and have no more trouble with him. Appellant agreed to this. Appellant then said to the sheriff that he was ready to plead guilty to his part of the matter to whomsoever was authorized to take up the matter. The county attorney then told him he would send word to the justice of the peace, and have him come down and attend to the matter, which was, later in the evening, done. The county attorney then drew a complaint only against appellant, charging him with an affray. He then pleaded guilty to this, was fined $1 by the justice, and the judgment accordingly entered. It seems he paid it off. The county attorney further said appellant never suggested what he was guilty of, nor suggested anything, just said he was ready to plead guilty to his part of the fight, whatever he was charged with; that no one said anything to him (the county attorney) about seeing a rock up to that time. Several people had told him between the time of the fight and when he drew up the complaint that these parties had had a fight in Simpson’s lumber yard; but none of them said anything to him about appellant having a rock. He knew nothing of the fight personally, and did not see it. The said complaint against appellant in the justice court charged that he did unlawfully fight together with J. K. Lofton in a public place, to wit, in said lumber yard, further alleging such facts as show it to have been a public place.

Appellant pleaded this former conviction as former jeopardy and conviction in bar of this case. The court submitted, in a correct charge, aggravated assault under the indictment, and required the jury to believe every essential to make an aggravated assault before they could convict. He also submitted appellant’s plea of former conviction, correctly told the jury what an affray was, and told the jury that, if they believed appellant was shown in this ease to be guilty of an affray, or that they had a reasonable doubt of it, to acquit him on his said plea. This charge should not have been given.

In our opinion the facts show two separate and distinct offenses. The first, from the state’s side, clearly shows an aggravated assault. The second fight may have been an affray. In no event was appellant’s former prosecution for an affray, instituted with his consent, if not at his request, to which he voluntarily appeared and pleaded guilty, any bar whatever for the aggravated assault that he had committed, and should not have been submitted by the court to the jury for a finding. However, such submission was clearly in appellant’s favor. He does not complain thereof, and of course could not be injured thereby. Former jeopardy did not attach so as to prevent his conviction for an aggravated assault, nor does the doctrine of carving apply. The two offenses are entirely separate and distinct; different elements entirely entered into the two. An affray is defined: “If any two or more persons shall fight together in a public place,” and the punishment is by fine not exceeding $100. P. O. art. 469. An assault and battery is defined as: “The use of any unlawful violence upon the person of another with intent to injure him whatever be the means or the degree of violence used.” P. O. art. 1008. And becomes an aggravated assault and battery when committed with a deadly weapon under such circumstances as to not amount to intent to murder or maim. P. O. art. 1022, subd. 8.

In no event was the conviction for an affray on complaint any bar to the conviction of an aggravated assault and battery under the indictment. Article 601, C. O. P.; Davis v. State, 39 Tex. Cr. R. 681, 47 S. W. 978; and many other decisions unnecessary to cite.

The verdict of the jury above quoted is amply sufficient to show that appellant was convicted of an aggravated assault, and of this only. McGee v. State, 39 Tex. Cr. R. 190, 45 S. W. 709. Even if appellant’s plea of former conviction should have been submitted to the jury, the verdict was sufficient, because by finding the appellant guilty of an aggravated assault, and fixing the punishment at a fine of $25, and the jury being told that, if appellant was guilty of an affray, to acquit him, necessarily found against appellant on his plea of former conviction. Andrada v. State, 152 S. W. 911; Bell v. State, 31 Tex. Cr. R. 523, 21 S. W. 259.

These are the only questions submitted requiring any discussion or decision. The judgment is affirmed.


author: HARPER, J.

text:
    Ex parte LONDON.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    Rehearing Denied March 4, 1914.)
    1. Municipal Corporations (§ 597) — Police Powee and Regulations — Removal op Garbage and Filth.
    Beaumont Oity Charter, § 32, empowering the council to take measures to prevent pestilential, contagious, or infectious disease, and to adopt' sanitary measures for the protection or improvement of the health, -as well as other provisions of the charter, especially section 76, authorized an ordinance prohibiting the removal of garbage and night soil except by the superintendent of the garbage department.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1325, 1354; Dec. Dig. § 597.].
    2. Constitutional Law (§ 63) — Distribution oe Governmental Powers — Delegation oe Powers.
    The Legislature could confer authority on the city council to pass an ordinance regulating the removal of garbage and night soil; it being the policy of the American system of government to subdivide the country and allow such subdivisions to regulate their internal affairs.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63.]
    3. Municipal Corporations (§ 126) — Oeei-cers — Creation oe Oeeicers.
    Beaumont City Charter, § 27, providing that there shall be such other officers, besides those named, as may be provided by ordinance, authorized an ordinance creating the office of superintendent of the garbage department.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 298-300; Dec. Dig. § 126.]
    4. Monopolies (§ 4) — Occupations—Removal oe Garbage and Filth.
    An ordinance, conferring on the superintendent of the garbage department the exclusive right of removing garbage and night soil for others, is not violative of Const, art. 1, § 26, prohibiting the creation of perpetuities and monopolies; it being merely the conferring on a public officer of the exclusive right of performing a public function.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 3; Dec. Dig. § 4.]
    5. Monopolies (§ 3) — Validity oe Grants-Public Oeetcers — “Perpetuity.”
    Requiring an officer to perform some governmental function to the exclusion of all others is not the creation of a monopoly or perpetuity, within the meaning of Const, art. 1, § 28, prohibiting the creation of perpetuities and monopolies.
    [Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 3.

    For other definitions, see Words and Phrases, yol. 6, pp. 4570-4574; yol. 6, pp. 5319-5321; yol. 8, p. 7752.]
    6. Municipal Cobpobations (§ 597) — Police Powers and Regulations — Public Health.
    In dealing with matters necessary to the preservation of the public health, such as the cleaning of privies, etc., the city council can prescribe regulations, and make it the duty of some officer or agent to see that they are complied with, and can also prevent others from engaging in that occupation as a means of livelihood.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1325, 1354; Dec. Dig. § 597.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Rufus London was arrested on a charge of violating an ordinance of the city of Beaumont relating to the removal of garbage, and brought habeas corpus. Judgment against the relator, and he appeals.
    Affirmed.
    McDowell & Ferguson, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

The city council of the city of Beaumont, Tex., passed an ordinance creating what is termed the “Garbage Department,” and created the office of superintendent of the garbage department, to be appointed by the mayor, subject to the approval of the city council. The salary of the superintendent was fixed at $5 per annum and such fees as he might be entitled to under the ordinance for removing garbage; the fees for doing the work authorized being fixed by the law. The garbage superintendent was required to execute a bond in the sum of $1,000, conditioned for the faithful performance of his duties under such ordinance and the laws of the city of Beaumont. His duties are set out in detail in the ordinance, section 9, requiring him “to remove and carry away for the inhabitants of the city all trash, slops and night soil as per schedule of fees hereinafter set forth.” The ordinance also prohibits any other person engaging in the business of carting trash, slops, and night soil for others, permitting the citizens to do certain things for themselves if they so elect, but not for others. The ordinance also provides a penalty for any person violating the provisions. The ordinance is rather lengthy, and we think this is a sufficient statement of it to pass on the questions here presented. Many of the sections of the Beaumont charter are copied in the record; but, as this ordinance would be authorized by section 32, which provides: “The city council shall have power to take such measures as they deem effectual (not inconsistent with the general laws) to prevent the entrance of any pestilential, contagious or infectious disease into the city; * * * and to adopt any sanitary measure whereby the health of the city may be protected and improved” — as well as other provisions of the charter, especially section 76, we do not deem it necessary to copy them herein. It is not questioned that the complaint in this case charges a violation of this ordinance ; therefore, we will not discuss whether or not the facts in the record would justify or support a conviction, as this will be a question to be determined on the trial of the case if relator is remanded.

Relator contends that the ordinance is void upon the following grounds: “That said pretended ordinance and amendments thereto is null, contrary to and in violation of the Constitution of this state, in this, to wit: (1) In attempting to create the office of superintendent of the garbage department, for which there is no authority in law, and in giving the mayor authority to appoint and the city council the authority to confirm a superintendent of the garbage department, which is not provided for by law. (2) In attempting to absolutely prohibit any person or persons engaging in the business of hauling or removing trash, except the superintendent of the garbage department, appointed as aforesaid, or his employes, and is therefore contrary to article 1, § 26, of the Constitution of the state of Texas, which is, ‘that perpetuities and monopolies are contrary to free government and shall never be allowed.’ (3) That the city has no power to enact such ordinance or amendments thereto. (4) That it in effect destroys the legitimate business of others, and prevents them from following the lawful pursuit of such business. (5) That said ordinance and its amendments is unreasonable and unjust.”

It is thus seen that it is claimed that the authority to enact this charter or ordinance could not be conferred by the Legislature on the city council. This question has been so often before this court, and so uniformly held adversely to his contention, we hardly deem it necesary to discuss the matter. Mr. Cooley, in his work on Constitutional Limitations, p. 261 (7th Ed.) says: “In the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate. In contradiction to those governments where power is concentrated in one, man, or one or more bodies of men, whose supervision and active control extends to all the objects of government within the territorial limits of the state, the American system is one of complete decentralization, the primary and vital idea of which is that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national constitution was formed, tinder which the states, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several states, as if by common arrangement to subdivide their territory into counties, towns, road, and school districts, and to confer powers of local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages where-ever the circumstances and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages; and in America the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates.” This is not only the rule of law prevailing in this state, but, so far as our information goes, in every state in the Union.

As to the first proposition that there is no authority in law for the creation of the office of superintendent of the garbage department, it is specifically answered by section 27 of the charter of the city of Beaumont, wherein it is provided, in addition to the officers named in the charter, that “there shall be such other officers, servants, and agents of the corporation as may be provided by ordinance,” etc.

The second objection is that the ordinance is void in that it creates perpetuities and monopolies, as well as other matters, and this renders it violative of article 1, § 26, of the Constitution, which prohibits the creation of perpetuities and monopolies. If this were sound, it would be violative of this provision to create the office of tax collector, who must collect all the taxes, or any other officer whose duties are made exclusive by law, and this law has so often been decided contrary to appellant’s contention, it is useless to cite authorities. The city could create any officer under its charter it deemed necessary to the performance of the duties it was legitimately ’authorized to perform. Requiring an officer to perform some governmental function to the exclusion of all others is not the creation of a monopoly or perpetuity within the meaning of the Constitution.

The third was answered in the first. In dealing with matters necessary to the preservation of the public health, such as the cleaning of privies, etc., the city council has the right to prescribe regulations and make it the duty of some officer or agent to see that the regulations are complied with, and prevent others from engaging in that occupation as a mode or means of making a livelihood. In the case of Ex parte Howell, 158 S. W. 535, the questions have been presented and ruled upon adversely to appellant, and a citation of authorities will be found in that case.

In the evidence offered no complaint is made as to the fees fixed by the law being unreasonable, and this question is not presented for review. Relator’s counsel has filed no brief, and we are not therefore informed of any which he claims support his contention on the propositions made.

Affirmed.


author: DAVIDSON, J.

text:
    PITTCOCK v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Assault and Battery (§ 96) — Aggravated Assault — Instructions.
    In a prosecution for aggravated assault, where there was evidence that defendant proposed intercourse with prosecutrix and removed her hands from over her face, an instruction that the jury must believe beyond a reasonable doubt that defendant made an unlawful assault upon prosecutrix against her will by catching hold of her hands while she was in bed, with intent only of inducing her to have carnal intercourse with him, and that he was an adult male and prosecutrix a female, and unless they believe that said assault, if so made, caused constraint, a sense of shame, or other disagreeable emotions, they should acquit, was correct.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-160; Dec. Dig. § 96.]
    2. Assault and Battery (§ 96) — Aggravated Assault — Instruction.
    In such case it was not necessary nor called for by the facts that the jury be charged only with reference to defendant’s proposal.
    [Ed. Note. — For other cases, see Assault and Battery, Cent Dig. §§ 142-150; Dec. Dig. § 96.]
    3. Criminal Law (§ 829) — Trial—Requested Instructions — Given Instructions.
    Requested charges, given in so far as correct, were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Criminal Law (§ 276) — Jurisdiction-Statute.
    Under Code Cr. Proe. 1911, art. 63, providing that the court first obtaining jurisdiction of a criminal case shall try it to. the exclusion of other courts, a defendant in the district court, in order to raise the question of the county court’s prior jurisdiction, should do so by plea to the jurisdiction or by setting up the fact that he had been previously charged with the offense in another court having jurisdiction.
    ,[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 636, 637; Dee. Dig. § 276.]
    5. Criminal Law (§ 276) — 'Venue — Exclusive Jurisdiction.
    Under Code Cr. Proc. 1911, art. 63, providing that the court first obtaining jurisdiction of a criminal case shall try it, to the exclusion of other courts, such jurisdiction attaches in the county in which prosecution is first begun and the defendant is arrested, and hence a record failing to show that the county court had ever obtained jurisdiction of defendant by arrest or otherwise does not sustain a plea of prior jurisdiction, exclusive of that of the district court.
    [Ed. Note. — For other cases, see Criminal Law, Cent, Dig. §§ 636, 637; Dee. Dig. § 276.]
    Appeal from District Court, Stonewall County; John B. Thomas, Judge.
    J. A. Pittcock was convicted of aggravated assault, and he appeals.
    Affirmed.
    W. H. Murchison, of Haskell, and W. J. Arrington, of Aspermont, 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.

The indictment contains two counts, one charging assault with intent to rape, and the other an attempt to rape. After the testimony was concluded, the court only submitted the issue of aggravated assault, instructing the jury that all charges of assault to rape and attempt to rape were withdrawn from their consideration.

The evidence, in brief, discloses that the alleged assaulted party was a young lady teaching school in the neighborhood and boarding in the family of appellant. Appellant's wife left home to be gone a few days, stating she would be back on a certain day provided it was a bright day. The prosecu-trix, during the absence of appellant’s wife, spent her nights at the residence of Frank Davidson. The day for the return of appellant’s wife came. It was a beautiful day, and thinking she would return to her home on that particular evening, as she had stated, prosecutrix returned to appellant’s house and spent the night. Appellant’s wife did not return, and prosecutrix says the reason she spent the night she did not expect her to return until late, and it was- too late, when she ascertained she would not return, for her to leave her boarding place; so she occupied her room that night. After she had retired along about 10 o’clock or little later, appellant raised quite a commotion, making considerable noise, and holloaing that somebody was trying to kill him or break in the house, and went to the door of prosecutrix’s room and inquired if his gun was in there; that somebody was trying to break in the house; anyway, showing he was frightened and wanted his gun. Finally the gun was found in the room, and he entered to get it. Prosecutrix suggested to him, when he informed her of the trouble, he should light a lamp. This he declined on the ground if he did somebody would shoot him; that he had a great-many enemies in the country. One word led to another, and finally he said he wanted to occupy the bed with her — sleep with her that night. She declined this, and says it horrified her so she could not speak and threw her hands up over her face and began crying. He approached the bed and removed her hands from her face. She indignantly threw his hands from her. Perhaps it wouldi be better here to use her language. She says: “He just kept on talking and talking, and finally he said: ‘Hadn’t I better sleep here with you? Can’t I get in here and sleep with you?’ Yes, sir; he said it. When he said that I just couldn’t say anything; I was just simply dumb; I couldn’t say anything. I was trying to holler, but I couldn’t, and I was trying to tell him no, but I could not tell him at all, but I guess that I did make some kind of a noise. I had my hands over my face, and he took hold of my hands and pulled them off my face, and I had rather have had the most poisonous serpeflt on earth wrapped around me than to have had those vile and wretched hands on me. When he laid his hands on me, he pulled my hands off my face, and I jerked away from him, and he asked me again if he couldn't, and I told, certainly he could not.” On cross-examination with reference to this particular matter, she testified: “Tes, sir, at the time that he suggested that he had better sleep with me, it shocked me so that it rendered me speechless. I then put my hands over my eyes, my face. He then caught hold of my hands and pulled them away from my face. He then said: T can’t stand to see you cry. Or, are you crying? I can’t stand to see you cry.’ I jerked my hands away. Tes, sir; that is the only time that he put his hands on me that night.” This is a sufficient statement of the evidence to review the questions suggested for revision.

Appellant requested the following instruction: “Tou are charged that a mere invitation or request from a man to a woman to have intercourse with him does not constitute an offense punishable under the law. So if you should find from the evidence that, on the occasion under investigation, the defendant did request or invite the said Annie Mae Higgins to have carnal intercourse with him, you will acquit him, unless you should find from the evidence beyond a reasonable doubt that at the time alleged in the indictment he committed an assault upon the said Annie Mae Higgins, as such is defined by the court in his general charge.” Also, the following charge was requested: “If you find from the evidence in this case that the defendant at the time alleged in indictment, and by his conduct, produced upon the prosecutrix, Annie Mae Higgins, either bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind, you are charged that, before you can convict the defendant of an assault, you must find from the evidence beyond a reasonable doubt that such pain, sense of shame, constraint, or other disagreeable emotion of the mind, was produced from the act of defendant placing his hands upon the person of said prosecutrix, if you find he did place them on her, and did not arise from his request, if any, to get in bed with her.”

The court charged the jury in this connection, in the third subdivision, fully, with reference to the matter of constraint, sense of shame, or other disagreeable emotion of the mind, in connection with the further fact of catching hold of her hands while she was in bed. He further charged the jury that they must believe beyond a reasonable doubt defendant did make an unlawful assault upon the person of Annie Mae Higgins without her consent and against her will by catching hold of her hands while she was in bed, with intent only of inducing her to have carnal intercourse with Mm, and that he was then and there an adult male and prosecutrix was a female, and unless they believe that said assault, if so made, upon prosecutrix caused constraint, a sense of shame, or other disagreeable emotions of the mind, they would acquit. We are of opinion that the court’s charge was a pertinent application of the law to the facts, and equally so as' those requested by the appellant so far as the facts of the case are concerned.

We are further of opinion that it was not necessary, nor called for by the facts, that the jury should be charged only with reference to a request to have intercourse with the prosecutrix. If that was the only tMng that occurred, or that was an issue, the charge woulld have been pertinent; but that was not presented in the ease as made by the facts. The request was accompanied by the fact of removing the hands. If he had not touched her, appellant’s special charge in this respect would have been called for by the facts, and there would have been a failure to prove a case of assault. But under the facts of the case we have detailed, we are of the opinion that, as far as the requested charges are correct, they were given, >and the court was not in error in failing to limit its charge to the request to have intercourse.

Appellant contends that the county court had obtained jurisdiction of this offense before the indictment herein was returned 'into court. This matter was not called to the attention of the court by any plea or motion, and was suggested only by the introduction in evidence before the jury of the complaint and information filed in the county court. The statement of facts shows this: That the defendant offered the affidavit and information charging him with aggravated assault filed in the county court on the 17th day of March. The indictment was returned into court on 24th day of April afterward. The complaint and information were introduced in evidence before the jury. As before stated, there was no plea to the jurisdiction of the district court under article 63 of the Revised Code of Criminal Procedure, which provides that the court first obtaining jurisdiction of the case shall try it to the exclusion of other courts. We are of the opinion that, in order to have raised tMs question properly, it should have been called to the attention of the court in somé way by plea to the jurisdiction or setting up the fact that he had been previously charged with the offense in some other court having jurisdiction of it.

Again, the matter is not sufficiently presented in this: That the record fails to show that the county court had ever obtained jurisdiction of appellant. As we understand this statute, the court must first obtain jurisdiction of the case. Had the county court obtained jurisdiction of the person, the question might have presented serious trouble; but there is nothing in the record to show he had ever been arrested in the county court, or that that court had in any way obtained jurisdiction of appellant’s person. The district court did obtain jurisdiction, for it tried him. Under the case of Pearce v. State, 50 Tex. Cr. R. 507, 98 S. W. 861, the proposition was laid down that the jurisdiction under the particular statute referred to (article 63, supra) attaches in the county where the prosecution is first begun and the party arrested, and the defendant may set up by proper pleading the question of jurisdiction, or he may waive such right. In th'e Pearce Case, the plea in limine called the court’s attention to the fact that he was in-dieted for same transaction in another county, which legally had jurisdiction, and that such jurisdiction had attached, and the court overruled it. In other words, the plea was filed and it set up the fact the other court had obtained jurisdiction of the case. Where that is shown, the first court would hold jurisdiction to the exclusion of the other court having concurrent jurisdiction. Under the propositions laid down in Pearce v. State, supra, and also in Taff v. State, 155 S. W. 214, we are of opinion there was no error committed by the court in this matter. These are the questions presented for revision, and the error, if error at all, is not of that nature that would require a reversal of the judgment. We think the charges are sufficient to present the issues of the case made by the facts, and that the pleading to the jurisdiction of the district court was not presented as required by the law, and failed further to show, even had it been presented, that the county court had jurisdiction of the person. Por a discussion of all these matters, see the two cases, Pearce and Taff, supra.

Finding no reversible error in the record, the judgment is affirmed.


text:
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.
    Rehearing Denied March 4, 1914.)
    1. Cbiminal Law (§ 814) — Instructions— Circumstantial Evidence.
    Where three witnesses testified in a homicide case that accused admitted to them that he struck the fatal blow, it was not error to refuse a requested charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dee. Dig. § 814.]
    2. Homicide (§ 250) — Sufficiency of Evidence.
    Evidence held to sustain a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dee. Dig. § 250.]
    3. Homicide (§ 239) — Sufficiency of Evidence.
    Evidence, in a homicide case in which accused claimed that the killing resulted from passion aroused by insults to his sister, held not to show that accused committed the killing as soon as he could get to decedent after learning of the insults.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 502; Dec. Dig. § 239.]
    4. Homicide (§ 309) — Instructions on Manslaughter-Insult to Female Relative.
    The court charged in a homicide case that if accused had been informed of the insulting words or conduct by decedent toward his female relative, and by reason thereof his mind was aroused to a degree of anger, sudden resentment, or terror which rendered him incapable of cool reflection, and if the killing was upon the first meeting of accused with decedent after being informed of such insult, if any, or if the jury have a reasonable doubt whether the killing thus occurred, they should convict of manslaughter. Held, that the instruction conformed to Pen. Code 1911, art. 1133, providing that to reduce a homicide to manslaughter by reason of insults to a female relative it must appear that the killing took place immediately upon the happening of the insulting conduct, or as soon thereafter as the party killing may meet with the party killed after having been informed of such insult.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Criminal Law (§ 1086) — Appeal—Harmless Error.
    Accused cannot complain of the trial court’s refusal to sustain challenges for cause as to two veniremen where the record does not show that either of them served on the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    6. Homicide (§ 170) — Admission oe Evidence.
    Evidence that tracks were found leading from the place where decedent was found, near to a certain house at which accused was shown to have been on the night of the homicide, when he admitted to the owner of the house that he and another had a fight with decedent and took decedent’s personalty, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. § 170.]
    7. Criminal Law (§ 728) — Appeai>—Presen-tation Below.
    In absence of a request for instructions on the right of the state’s attorney to comment on the evidence of a witness who testified that she had been coerced in the making of certain statements as to accused’s guilt, the comments of the state’s attorney on her evidence would not present reversible error, especially where her testimony was favorable to the state rather than to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    8. Criminal Law (§ 1171) — Appeal—Harmless Error.
    Any adverse criticism by the state’s attorney on the evidence of a witness whose testimony was favorable to the state could not have prejudiced accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Red Thompson was convicted of murder, and appeals.
    Affirmed.
    W. W. Campbell, of Alba, for appellant. C. E. Lane, Asst. A tty. Gen., for the State.

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

   HARPER, J.

Appellant was found guilty of murder, and his punishment assessed at death.

Appellant was charged with the murder of Norman Reeves. Reeves was at the home of appellant on Saturday afternoon; appellant, his father, sister, and some others being present. The testimony would indicate that Reeves was drinking, and it is claimed he sought to have intercourse with appellant’s sister, to which she objected, and left home to go and get an officer. The testimony would further show that appellant was present in the home at the time, and heard and saw all that took place; however, his sister says that while appellant was in the adjoining room playing dominoes, she does not know whether he heard her holler, or heard deceased talk, or saw his actions, or not. But when she places her brother, herself, and deceased in the position she does, it seems incredible to any one that appellant could not and did not know what was taking place, while the state’s witnesses would have him not only heating and seeing all that was said and done, but making remarks about the matter, yet he permits deceased to quietly leave the house; he following after him shortly. Then just before dark he is seen talking to deceased; while some time that night deceased is murdered. They trace tracks from the body of deceased, found in a dugout or ditch, in the direction of Buey Thomas’ house, and appellant is shown to have appeared at her house between 8 and 9 o’clock at night, and she testifies that appellant told her that he and Commie Lloyd had a fight with deceased, and had robbed him of his ring, purse, money, and a handkerchief. When appellant was arrested, a purse was found on his person that Charlie Reeves and Mrs. Reeves (father and mother of deceased) positively identify as the purse of the murdered man; Mrs. Reeves telling of circumstances of it getting real wet and drying it, whereby she could identify it. It. is true that the mother and sister of appellant say the pocketbook found on appellant is their mother’s, yet the justice of the peace says that at the time of the examining trial he showed this pocketbook to appellant’s mother, and while she at.first claimed it as hers, yet when questioned she admitted that her pocketbook was not sewed like this one, and was not torn as this one was, and that it was not her pocketbook. It was further shown by the state that appellant in the afternoon played pool in a hall in Mineóla, and when he got through did not have enough money to pay the fees he was owing, but came back in that night and took a five dollar bill out of a purse and paid his bill, and took the change, placing it back in his purse, and said “he had as much money as a Jew.” Deceased is shown, when he left home, to have had between $40 and $50, yet when found he had no money and his large pocketbook was missing. Two other witnesses testify that appellant admitted to them, or in their presence, that he killed deceased. So the contention of the state was that appellant killed deceased to rob him, while the defendant’s theory is, if appellant killed him, it was on account of the insults to his sister hereinbefore recited.

One of the complaints is that the court erred in not giving appellant’s special charge requested on circumstantial evidence. Inasmuch as Lucy Thomas, Mamie Thompson, and Alice Briscoe all testified that appellant admitted to them he struck the blows that killed deceased, there was no error in refusing the special charge. Branch’s Crim. Law, § 203.

The first four grounds in the motion for a new trial complain that the evidence, and all the evidence, would not justify a finding, nor support a verdict, of murder in the first degree. Of course, if we should take appellant’s theory, that he killed deceased because of insults to his sister, this perhaps would be true, yet if appellant heard the insulting remarks and witnessed the conduct of deceased, and made no effort to restrain him or kill deceased at that time, let him leave, and then follow along behind him, and after dark take an iron rod or bolt and strike him in the back of the head, and then rob him of his money, this state of facts, instead of presenting manslaughter, would be most cogent circumstances to show a premeditated killing for the purpose of robbery. However, the state was not bound to accept the theory of appellant, and it offered strong and cogent proof that the killing was not on account of any insult to his sister, but for the purpose of robbery, and at the time this case was tried if the killing took place under circumstances showing that it was done in perpetrating robbery, it, in law, would be murder of the first degree. Article 1141, Penal Code. The evidence for the state further shows that deceased that day had between $40 and $50 on his person and in his pocketbook; this pocketbook was found in possession of appellant after the murder; he was shown to have no money in the afternoon, while later in the night of that day he is shown to have a $5 bill, and when he got it changed in Monroe Ellis’ pool hall said, “I" have got money in my hip pocket like a Jew.” Lucy Thomas testified that appellant admitted to her that he and Commie Lloyd had had a fight with deceased, struck him with a piece of iron, and had taken off of him his money and ring, handkerchief, etc. All these things were missing from deceased when found, and he had been murdered by blows from some kind of instrument, one in the back of the head %nd one on the side of his head; the skull being crushed from both blows. This evidence, if believed by the jury, certainly supports the verdict in this case.

The next ground in the motion is that the court “erred in not affirmatively charging the jury that the insulting words and conduct of deceased towards appellant’s sister was an adequate cause.” The court did so instruct the jury. Paragraph 19 reads: “The following is deemed an adequate cause: Insulting. words or conduct of the person killed toward a female relation of the party guilty of ttie homicide.” This. ⅛ all of paragraph 19, and we find in it no such language as stated in appellant’s motion for a new trial. The court does not use the words “could be,” but instructs them this is adequate cause, and the charge is in the language of section 4 of article 1132, Penal Code.

The only other complaint of the charge on manslaughter reads as follows: “Because the court erred in his charge on manslaughter in the twentieth, twenty-first, and twenty-second paragraphs thereof, for the reason all the testimony showed that defendant, if he committed the hilling, did so immediately after the deceased left his house and after he had insulted his sister and attempted to ravish her, and that he committed such killing as soon as he could get to the deceased; and the charge of the court to the effect that the killing could not be reduced to manslaughter unless the killing occurred as soon as he saw the deceased or as soon as he learned and heard of the insults and attempted rape on his said sister.” In the first place, we will say that the evidence does not show that “he committed the killing as soon as he could get to the deceased.” The evidence offered by the state, if true, conclusively showed that appellant was present and heard and saw all that was said and what took place, and while deceased was in the room with him. Willie Aimes testified: “I heard Commie say he wouldn’t let no God damn man come to his house and do that way, and Red said, ‘No,’ no God damn man couldn’t run over his sister that way. He said something else about that he would get even, or something; I don’t know exactly what he said. He said no man couldn’t run over his sister and get off that way—get even with them, something like that. When Red and Commie was talking, I was in the kitchen. No, sir; they was not in the kitchen; they was in the front room. That was while Norman Reeves was there that I heard them talking. At the time they were talking, Norman was setting there in front of the fireplace with his head hung down like this (indicating) like he was asleep. That was in the same room where they was. It was about 20 minutes after that before Norman Reeves left, 10 or 15 minutes.” Arthur Cato testified he was present and heard a conversation between appellant and Commie in substance the same as above, and appellant said he would get even with him (deceased); that deceased was there present in the house at the time, in the same room with defendant; and that deceased did not leave the house for some time, when appellant followed along behind him. Thus it -is seen by the state’s evidence that appellant was present and saw and heard everything that took place; that deceased was then there sitting in a chair in his plain view. Furthermore, it is shown that appellant and deceas-' ed were seen in conversation with each other after they left the house that evening, and appellant, even according to his sister’s testimony, knew of) the insults they claim deceased had been guilty of, and yet at this time appellant is not so angry because of the insults as to cause him to resent the insults. In fact, it is clearly shown by all the facts and circumstances in the case that it was at a different time and place, and after the shades of night had fallen, that deceased met his death by being struck a blow in the back of the head at the base of the brain. The court instructed the jury: “Now, remembering the foregoing definition of manslaughter, if you shall find that the defendant, either alone or acting together with one Commie Lloyd, killed Norman Reeves, by striking him with an iron pin, or by ways, means, and instrument, unknown, but if you shall find that .before such killing the defendant had been informed of insulting words or conduct of deceased towards a female relation of defendant, and if you shall find that by reason thereof the mind of the defendant was aroused to a degree of anger, rage, sudden resentment, or terror, which rendered it incapable of cool reflection, and if you shall find that the killing, if any, was upon the first meeting hf defendant with deceased after being informed of such insults, if any, or if you have a reasonable doubt as to whether the killing, if any, thus occurred, you will convict the defendant of manslaughter.” This charge is in accordance with article 1133 of the Penal Code, which reads as follows: “When it is sought to reduce the homicide to, the grade of manslaughter, by reason of the existence of the circumstances specified in. the fourth subdivision of article 1132 of the Penal Code, it must appear that the killing took place immediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the párty killing may meet with the party killed, after having been informed of such insults.”

The charge of the court on manslaughter is in strict accord with this provision of the Code, and is not subject to the above-recited criticisms, and these are the only grounds of complaint of the charge on manslaughter to be found in the motion for a new trial.

The charge on reasonable doubt is in accord with the statutory provision in that respect, and the criticism of this part of the charge is without merit. Article 785, Code, Crim. Proe.

In the first two bills of exception appellant complains of the action of the court in refusing to sustain his challenge for cause as to veniremen J. H. Ingram and Jno. C. Lee, Jr. In approving the court says : “Both of said jurors stated upon their voir dire examination that they had heard that Reeves was killed on the T. & P. track near Mineóla by a negro and was of the opinion. that some one killed Mm, but bad no opinion as to wbo killed bim and no opinion as to tbe guilt or, innocence of tbe defendant on trial.” As tbus qualified, tbe bills present no error. In addition to tbis, it is not shown by tbe record that either of these two men-served on the jury, or appellant was forced to accept any objectionable juror, and under such circumstances no error is presented.

In tbe next bill it is complained that tbe witness Willingham was permitted to testify that be found tracks leading from tbe place where deceased was found and traced these tracks in tbe direction of and near to tbe bouse of Lucy Thomas. As it was further shown by other witnesses that appellant was at tbe bouse of Lucy Thomas tbe ■night of tbe homicide, and came there between 8 and 9 o’clock, and on tbis trip admitted to Lucy Thomas that be and Commie, Lloyd bad bad a fight with deceased, and took bis money, ring, etc., the court did not .err in admitting tbe testimony.

Tbe bill relating to the testimony of tbe ■witness Alice Briscoe presents no error as approved by tbe court. Tbe court quotes the pages of tbe transcript showing what the testimony of tbis witness really waá, and by .turning to it we find be is correct.

There was no error in permitting tbe ■ county attorney to testify that tbe witness Lucy Thomas was not in any manner coerced into making tbe statement she did make. Lucy Thomas, after testifying to material facts for tbe state, testified on cross-examination that she bad been forced and coerced into making these statements, and those wbo were present at tbe time she says she was coerced were properly permitted to show that no harshness or coercion was used, or attempted to be used. Nor was tbe argument and criticism of tbis witness, Lucy Thomas, .and her testimony by state’s counsel, such that could have in any manner injuriously .affected appellant’s case. Tbe court, upon •objection being made, instructed tbe jury not to consider such matters. Appellant requested no other or further instructions in tbe premises, and in tbe absence of a request for instructions, if tbe court bad not so instructed tbe jury, tbis would not present reversible •error. The witness Lucy Thomas testified to no fact for defendant; her testimony, if true, was in support of tbe state’s case, and .any adverse criticism of her testimony by tbe state could and would only result to tbe advantage of appellant.

There are other complaints in tbe motion •for a new trial in regard to admitting testimony ; but, as no bills of exception are reserved, we cannot review those grounds.

We have carefully read tbe record, and no •error in tbe trial or conduct of tbe case is pointed out in tbe motion for a new trial, and tbe evidence amply supports tbe verdict.

Tbe judgment is affirmed.


text:
    WRIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Ceiminal Law (§ 1056) — -Appeal—Reservation or Grounds off Review — Exceptions.
    Under Code Or. Proc. 1911, art. 743, as amended by Acts 33d Leg. c. 138, providing that the judgment in a criminal action shall not be reversed for immaterial errors, and that all objections to the charge shall be made at the time of the trial, errors in the instructions cannot be reviewed, unless excepted to at the time of the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec.. Dig. § 1056.]
    2. Criminal Law (§ 1056) — Appeal— Scope off Review — Constitutional and Statutory Provisions.
    Code Cr. Proc. 1911, art. 743, as amended by Acts 33d Leg. c. 138, relating to harmless error and objections to instructions, is valid and binding on the Court of Criminal Appeals, and restricts the question reviewable by that court, since the Constitution gives the right of appeal only under such conditions and restrictions as may be provided by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    3. Criminal Law (§ 396) — Evidence—Admissibility.
    On a trial for homicide, where accused’s wife testified in his behalf that the relations between their family and deceased’s family had been very unpleasant; that deceased’s wife about two weeks before the homicide cursed accused, and called him a vile name; that shortly before the homicide she saw deceased cleaning his gun; that deceased’s wife told her that he had his gun in the house loaded, and that if M. turned the hydrant off again deceased would kill him; that she told her husband about this conversation, and that she thought deceased cleaned his gun to kill accused — the state was properly permitted to introduce testimony that accused’s wife made none of the statements testified to, that the relations between the two families were friendly and that M. never cut off the hydrant, in order to show that the conditions as shown by accused did not exist, and that the killing took place under the circumstances testified to by the state’s witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    4. Criminal Law (§§ 364, 413) — Evidence— Self-Serving- Declarations.
    A statement by accused long after he had left the scene of the homicide was not res ges-tae, but a self-serving declaration, and properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818, 928-935; Dec. Dig. §§ 364, 413.]
    5. Homicide (§ 338) — Appeal — Harmless Error — Admission off Evidence.
    Where, on a trial for homicide, accused on the cross-examination of a witness, wbo testified that he resisted arrest, sought to show that, he gave as his reason for refusing to give up his gun the mistreatment and threats to lynch him when he was previously arrested thus showing the fact of such previous arrest, the admission of testimony if his threats against the men who arrested him before, if erroneous, did not require a reversal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    6. JIomicide (§§ 231, 241) — Murder with Implied Malice.
    On a trial for homicide, accused testified that he told deceased that if he did not tear a playhouse and fence from his fence he would do so himself; that deceased said if he did, he would kill him; that after eating his supper he decided .to tear the playhouse and fence loose from his fence, and with his son went into deceased’s yard and began to tear them loose; that they heard deceased coming home, and returned to their own yard; that when deceased came along he told him that he had torn the outfit down, and did not want it nailed back, that deceased then remarked, “Yes, and G-d d-n you, I will get my gun and fill you both full of lead,” and started to the house; that he did not think it would do to let deceased get his gun; and that he raised his gun and shot deceased. Held, that his own testimony did not justify his conduct, nor reduce the offense below murder upon implied malice if it did not show express malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 479, 504; Dec. Dig. §§ 231, 241.]
    On Motion for Rehearing.
    7. Ckiminal Daw (§ 1056) — Statutory Provisions — Reservation ox Grounds or Review-Exceptions.
    Acts 33d Leg. c. 138, amending Code Cr. Proc. 1911, arts. 735, 737, 743, relate to submission of instructions to attorneys for examination before giving them to the jury, and provide that convictions shall not be set aside for harmless errors. Held, that these sections as so amended apply to trials subsequent to the taking effect of that chapter for offenses committed prior to its taking effect, since they relate to mere matters of procedure which are governed by the law in force at the time of the trial
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    S. Criminal Law (§ 946) — New Trial-Waiver op Objections.
    Under such sections, where on a trial for an. offense committed prior to the taking effect of such amendatory chapter the trial court submitted the charge to accused’s counsel for criticism and objection, and allowed him a reasonable time to examine it, and he failed to object thereto or to suggest amendments, objections to the charge could not be made in the motion for a new trial, though the trial judge at the opening of the trial announced that accused would be tried under the law and procedure in force at the time of the commission of the offense, unless accused filed a written request that he be tiled under the law and procedure in force at the time of the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2353; Dec. Dig. § 946.]
    Appeal from District Court, Midland County; S. J. Isaaeks, Judge.
    Jim Wright was convicted of murder and he appeals.
    Affirmed.
    Ross & Hubbard, of Pecos, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant/ was prosecuted and convicted of murder, and his punishment assessed at 30 years’ confinement in the state penitentiary.

The crime with which appellant was charged was alleged to have been committed on the 18th day of October, 1912. The trial was had in September, 1913. Appellant, in the record, admits that the court, be'fore the argument was begun, furnished him with a copy of the charge, and he read it; and he further admits that he at that time took no exception to the charge as prepared and submitted to him, and which was subsequently read to the jury, but after the verdict, in his motion for a newi trial he vigorously assails the charge of the court. His contention is that, as the offense with which he is charged was committed prior to July 1st of last year, although tried subsequent to that date, the law regulating the trial of criminal cases as passed by the last Legislature (chapter 138) should not apply, and he could still complain of the charge of the court for the first time in his motion for a new trial. Mr. Black in his work on Interpretation of Laws, says: “No person has a vested right in any form of procedure. He.has only the right of prosecution or defense in the manner prescribed for the time being, and, if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage. Statutes which relafe to the mode of procedure, and affect only the rights, are valid; and it is no objection to them that they are retrospective in their operation. It is competent for the Legislature at any time to change the remedy or mode of procedure for enforcing or protecting rights, provided such enactments, do not impair the obligations of contracts, or disturb vested rights and such remedial statutes take up proceedings in pending causes where they, find them; and, when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amenda-tory aqt.” Old article 743 reads before amendment that the “error” in the charge must “be excepted to at the time of the trial, or on a motion for a neio trial.” In amending and re-enacting this provision of the Code, the words “or on motion for a new trial” were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. By the Constitution of this state the right of appeal is given only under such conditions and restrictions as may he provided hy law; consequently this restriction as to what questions we shall review on appeal is valid and binding bn us, and we have no authority to ignore it, nor construe it out of existence. If it is considered that the provisions are too restrictive, the remedy lies in an application to the Legislature to amend the article. We are powerless to give relief from its provisions so long as it is the law; consequently we are without authority to review the charge of the court unless complained of at the time of the trial, unless fundamental error is presented.

Mrs Jim Wright, wife of appellant, testified, in his behalf, that the relations between their family and the family of Mr. Steed (deceased) had been very unpleasant for two years; that Mrs. Steed some two weeks before the homicide had cursed appellant and called him a s-n of a b-h; that for some months they had hardly been on speaking terms; that a short time before the homicide she saw deceased cleaning his gun in the yard, and that Mrs. Steed had informed her that deceased had his gun in the house loaded, and if Mr. Manahan ever turned the hydrant off again, Mr. Steed would kill him; that she had informed her husband about this conversation, and told him to be on his guard, that she thought that deceased had cleaned his gun to kill him, appellant. Mrs. Steed testified, denying all this, and said that prior to the night of the killing in so far as she knew, the feeling between the two families was friendly; denied that she had called appellant a s-n of a b-h; denied that she had ever told Mrs. Wright that the gun was in the house loaded, and if Mr. Manahan ever turned the water off again her husband would' kill him. It will be noticed that Mrs. Wright said it was on this circumstance that she had warned her husband to be on his guard, and that she believed deceased was cleaning it up to kill him, appellant.

Mrs. J. T. Camp testified that she lived a close neighbor to appellant and deceased; that she frequently saw Mrs. Wright and Mrs. Steed conversing, that the children visited, and that the relations between the two families were friendly, or so seemed to her. On cross-examination she answered that there might have been friction between the two families of which she was unaware.

Mr. Manahan was permitted to testify that he had never cut off. the hydrant at Mr. Steed’s in his life.

This testimony was objected to by appellant, but we think it clearly admissible. The previous relations, as sworn to by 'Mrs. Wright and other witnesses, were introduced by appellant as tending to show what, in the light of what he says occurred at the time of the homicide, led him to believe his life was in danger, and it was perfectly legitimate for the state to show, if it could, that these conditions did not exist, and the killing took place under the circumstances testified to by the state’s witnesses.

Appellant desired to prove by Joe Kraus what he, appellant, told him after the homicide. This was not told under circumstances to render it res gestae of the transaction, and would have been but a self-serving declaration made a long time after appellant had left the scene of the homicide; consequently the court did not err in excluding this testimony.

By the only other bill in the record it is shown that T. X. Morehead was permitted to testify, over appellant’s objection, that defendant, some time after the commission of the offense, requested him “to get the two sons of bitches who arrested him before, in order that he might cut them down.” The connection in which this testimony was admitted is not shown by the bill, nor can we ascertain by the statement of facts the connection in which it was introduced, for no such testimony appears in the statement of facts. However, the bill of exceptions was approved, and this governs, and we conclude that the statement was testified to by the witness. The objection made by appellant was that such “statement, if made, was immaterial and irrelevant, and did not tend to prove the commission by the defendant of the offense of which he is charged, but did tend to inflame the minds of the jury against defendant by indicating that defendant had himself theretofore been arrested for an offense which the state neither sought to prove nor described to the jury.” Of course, it would be inadmissible to show that this defendant had committed any other and different offense not growing out of this transaction. But that defendant had theretofore been arrested is shown by the record by other witnesses and other testimony not objected to. Mr. Morehead was permitted to-testify that appellant resisted arrest when he went to arrest him for this offense. Then on cross-examination appellant sought to prove by this witness that he gave, as a reason for refusing to give up his gun, the way they had treated him before; that they had talked of lynching him before; that they had then threatened to lynch him and had mistreated him. It is thus seen that the fact that appellant had been theretofore arrested was not communicated to the jury by the statement above objected to, but got before the jury by reason of his resisting arrest, and refusal to give up his gun on this occasion, and appellant’s explanation, developed by his counsel, of his conduct and in seeking to explain it away. This is the only error complained of in a way we could review it, if error it be; and, under the evidence adduced legitimately and without objection, it would not be such «error as would, call for or necessitate a reversal of the case.

The evidence would show that appellant and Mr. Steed were both carpenters, residing at Pecos, in Reeves county. Only a-. short time before the homicide they ■ had been at work together on houses erected in that town. Deceased is not shown to have had any animosity towards appellant other than by the testimony of appellant and his wife, who say that deceased became angry because appellant tore loose a playhouse made for his children, and which was fastened to a fence running between their houses, while on the other hand, by the testimony of witnesses, it is shown that appellant had no kindly feeling toward Mr. Steed. All the testimony shows that Mr. Steed bore the reputation of a peaceable and law-abiding citizen. On the evening of the tragedy, according to the state’s testimony, deceased went home, talked a while to his daughter, who then went to a moving picture show; his wife told him about a neighbor who wanted to sell a store, and he went to see it, purchasing the store. His wife, as soon as the girls left, took the baby girl and went to meet him; they returning home together. His wife says deceased was walking along, with the child in his arms, playing with it, when appellant called, and says, “Steed, I have tore that G — —d d-d playhouse down, and I do not want it put up there any more, and if he did put it up, he would shoot his G-d d-d head off.” That deceased replied, “What is the matter with you, anyhow?” Appellant replied, “I mean what I say.” That deceased then remarked, “Oh, it would be like another Mexican case,” when appellant said, “G-d d-n your soul, to hell, it is not a Mexican I am after this time; you are the man I want,” and shot him. Deceased was in his shirt sleeves, and had no weapon. Appellant’s version is that he met deceased late in the evening, and told him if he did not tear the playhouse and his fence from appellant’s fence, he, appellant, would do so, when deceased replied he would kill him if he did. That he, appellant, then went .in and ate his supper. After eating his supper he decided to tear the playhouse and fence loose from his fence, and, getting his gun, he called his son and they went out there and climbed the fence over in deceased’s yard, and began to tear the playhouse and fence loose. That he heard the deceased coming home, when he and his son got back over the fence into his own yard, and when deceased came along he “told him he had tom that outfit down, and did not want it nailed back there,” when deceased remarked, “Yes, and G-d d-n you I will get my gun and fill you both full of lead,” and started to the house. That he, appellant, did not think it would do to let him go on and get his gun, and he raised his Winchester and shot him.

The dying statement of deceased would show1 an unprovoked killing. Morehead says when he got there appellant remarked: “I guess you are after the man that done that' shooting. I done it, and I am not a d-n bit sorry of it.” Thus it is seen that appellant’s own testimony would not justify his conduct, nor reduce the offense below murder upon implied malice if indeed it does not show express malice.

The judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing, in which he states that the court erred “in subjecting appellant to a trial under a system of law and procedure not in force at the time of the alleged commission of the offense.” Appellant contends “that the trial judge announced in open court, before entering upon the trial, that defendant would be tried under the law and procedure in force at the time of the commission of the offense, unless the defendant should then and there file a written request that he be tried under the law and procedure in force at the time of announcement for trial,” and for this reason he contends that he ought to be permitted to complain of the charge in the motion for -a new trial, although he, at the time it was submitted to him, made no objections to the charge as-given. Had the trial judge tried appellant under the old law and procedure, and not submitted the charge to appellant’s counsel for criticism and objection, we certainly would allow him to object thereto in the motion for a new trial. But whatever the trial court may have announced before the trial, it is certainly made clear by this record that when the testimony was introduced and closed the court then prepared his charge and submitted it to counsel as is provided in chapter 1S8 of the Acts of the Thirty-Third Legislature. Appellant then knew the court was not proceeding under the old procedure, but ¡under the new, as adopted by the last Legislature, and if the charge was erroneous, or did not present the issues made by the testimony in such way as appellant desired, why did he not then object to the charge and suggest to the court such amendments to the charge as he thought necessary to protect the rights of his client? Of course, we would not permit one to be misled to his injury if we could prevent it, but the record in this case discloses that the court prepared his charge, submitted it to appellant’s counsel, and no objection was made thereto, and no special charges requested. This case was tried on the 8th day of September of last year, and the act of the Legislature had then been in force for some months, and in this law the Legislature has provided in article 735 that the judge, before argument begins, shall prepare his charge in writing, and shall submit same to defendant’s counsel, who “shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.” Why is this required? It is that every right of defendant may be fully protected, and Ms theory of the case fully presented. It is not intended, nor will it deprive Mm of any right, but he hereafter must be timely in asserting Ms rights, and aid the court in securing a fair and impartial trial, and what else should one desire? It is further provided in article 737 that he shall also have a reasonable time, after reading the charge of the court, to present any objection or special charge he may desire to have given. If he asks none, and does not complain of the charge of the court as given, article 743 provides that the case shall not be reversed unless an error was committed calculated to injure the rights of the defendant, and not then unless the error was pointed out in objections made to the charge as given, or in refusal of special charges requested, made at the time of the trial. If it was claimed or asserted that the trial court did not allow reasonable time to examine the charge and specify the grounds of objection, we would review the charge as given, even though the objections were made after the trial. But this is the only instance in which we are authorized to review the charge where the objections were not made at the time of the trial, or unless it is made to appear that a person has not had a fair and impartial trial. The fact that this law took effect after the alleged commission of the offense does not alter the rule where the trial took place subsequent to the time the law became effective. This law is a mere matter of procedure, and governs all trials had after its provisions went into effect.. A person has no vested right of appeal to tMs court; this is given to him1 by the Constitution under such restrictions and regulations as may be prescribed by law, and in some instances a person is denied of any' right to appeal to this court although convicted of a criminal offense. We have several times discussed this question recently, but appellant insists so earnestly that the Legislature cannot change the rules of procedure in the trial of criminal eases theretofore pending, but not yet tried, we have again reviewed the authorities and text-books.

In the case of State v. Manning, 14 Tex. 402, when the Supreme Court had jurisdiction in criminal matters, that court held that the Legislature had the authority to “change the mode of conducting proceedings upon the trial in reference to past as well as to future offenses”; that this would not be an ex post facto law; it related solely to the remedy. This case has not only been followed in this state, but has been cited approvingly in Beebe v. Birkett, 108 Mich. 236, 65 N. W. 970; Sage v. State, 127 Ind. 19, 26 N. E. 667; State v. Moore, 42 N. J. Law, 233; People v. McDonald, 5 Wyo. 526, 42 Pac. 19, 29 L. R. A. 834.

In Wharton’s Criminal Law it is held: “A statute subsequent to an offense may change the mode by which it is to be prosecuted, provided the punishment attached to the Offense is not thereby increased.” Section 43.

• Mr. Cooley in his work on Constitutional Limitations says: “So far as mere matters of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that Ms case shall be disposed of-under the law in force when the act investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice in existence when the facts arose.”

The trial court would have had no right to have ignored this statute, and had he done so, appellant would then have had real cause for complaint. Neither have we the right to ignore this law, as appellant would have Us to do, for, while no appeal would lie from our action, we are but a creature of the law, and are bound by the rules and regulations prescribed by the law of the state, and to do otherwise than obey the law as written would be a usurpation of power on our part. Appellant received the punishment formerly assessed for murder in the second degree, and Ms offense, if not justifiable, was murder in one of the degrees, under the evidence adduced on this trial. The issue of self-defense was submitted to the jury, and they find against this contention. Had some of the criticisms now leveled at the court’s charge been made when the court submitted the charge to appellant’s counsel, we are satisfied the court would have amplified the charge in some respects as appellant now contends should have been done, but they are not such matters as prevented appellant from receiving a fair and impartial trial. ' We do not think appellant’s counsel noticed these matters at the time the charge was submitted to him before being read to th.e jury, for we think he is that character of man who would promptly have called the attention of the court to them, yet we have heard some lawyers say that they sat still, let the court take care of itself, in the hope they would catch the court in error that they might assign it in the motion for a new trial, in case a conviction was had. This was not fair to the trial court, and that day has passed in Texas under the recent statute. Lawyers, in fact, hereafter must consider themselves, whether lawyers for the state or defendant, as officers of the court, and lend to the court all the aid they can, to see that a fair and impartial legal trial is had. The Legislature has provided that the “practice of setting traps” for the court must cease, and we will administer the law as written. The objection to a charge must be made before the charge is read to the jury, and if a reasonable time to do so is granted, objections will not be considered on appeal made for the first time in motion for new trial. This is tfie command of tlie law, and it we will obey.

The motion for rehearing is overruled.