author: PRENDERGAST, P. J.

text:
    HILES v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Criminal Law (§§ 1166, 1176) — Continuance — Materiality of Testimony of Absent Witness.
    The denial of motions for a continuance and for a new trial because of the absence of an eye witness to a homicide was not reversible error, where such witness’ testimony at the examining trial was introduced in evidence by accused, and did not tend to show self-defense, but at most only tended to reduce the killing to manslaughter, and the jury found accused guilty of manslaughter and assessed the minimum punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113, 3190, 3191; Dec. Dig. §§ 1166, 1176.]
    2. Criminal Law (§ 1131) — Bill of Exceptions — Qualification—Cqnclusiveness. Where appellant accepts a bill of exceptions as qualified by the tidal judge, he is bound thereby.
    [Ed. Note. — For other cases, see Criminal Law, . Cent. Dig. §§ 2894-2896; Dec. Dig. §

    3.Criminal Law (§ 1093) — Bill of Exceptions — Sufficiency.
    In a homicide case a bill of exceptions, complaining of the admission of evidence of threats by accused not directed against any particular person, was insufficient to require consideration, where it did not state the facts surrounding the testimony, nor show why or in what way it was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    4. Homicide (§ 158) — Evidence—Threats by Accused.
    On a trial for homicide, evidence that accused, in talking about trouble between himself and the wife of a third person, said that if such a thing happened at his place, he would take his gun and shoot him the first time he could catch him was properly admitted, where there was evidence that accused did shoot deceased because of insulting conduct towards his wife, since, while a threat to be admissible must not be merely a general threat, if, though not directed specifically towards the person afterwards killed, it is a threat of general malignity embracing all persons, and thereby embracing deceased, it is admissible.
    [Ed. -Note. — For other cases, see Homicide, Gent. Dig. §§ 293-296; Dec. Dig. § 158.]
    5. Witnesses (§ 236) — Examination—Questions.
    On a trial for homicide, a question asked accused by his counsel as to what he meant if he stated to the first people he met that he had to do what he did in defense of his family was properly excluded, where accused positively and emphatically denied making such statement and had not withdrawn his denial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. § 236.]

      6. Criminal Law (§ 406) — Evidence—Confessions While under Arrest.
    On a trial for homicide, a statement of accused that deceased had no pistol was not inadmissible, though at the time he was in the company of the deputy sheriff, who would not have let him get away, where he testified that he did not consider himself as under arrest at the time, since, while the statute makes a confession, made when under arrest, and not in writing, inadmissible, if he does not reasonably believe himself to be under arrest, the confession is admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§-785, 89A-917, 920-927; Dec. Dig. § 406.]
    7. Criminal Law (§ 1173) — Instructions— Limiting Eeeect oe Impeaching Evidence.
    On a trial for homicide, a witness denied having made a written statement on the day of the homicide, to the effect that accused said that'either he or deceased must die, and that accused after the homicide claimed he killed deceased because of his conduct towards accused’s family. On cross-examination of K., a witness for accused, the state proved that the first witness did make such statement, and the jury was then told to consider such evidence only as going to the credibility of the first witness. The state in rebuttal proved the making of such statement by two other witnesses, H. and D., and such written statement was also introduced. Held, that the failure of the court in its charge to limit the testimony of K. and D. was reversible. error, though no complaint was made of his failure to limit the testimony of H., and no objection was made to such failure until after the verdict was rendered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    8. Criminal Law (§ 824) — Instructions— Necessity oe Requests.
    Where the trial court admitted a map or plat, but thereafter withdrew it from the jury, and orally instructed them not to consider it, his failure in the written charge to again so instruct the jury was not error, in the absence of any request for such instruction.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    W. J. Hiles was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Clay, Cooke and J. W. Parker, both of Pecos, for appellant. C. E. Lane, 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

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

   PRENDERGAST, P. J.

Appellant was indicted for the murder of Tom Tucker, alleged to have occurred on December 19,1912. He was indicted on April 24, 1913, at once arrested, and tried and convicted of manslaughter on May 24, 1913, and his punishment fixed at two years in the penitentiary, the lowest prescribed by law.

The evidence on the state’s side was amply sufficient to have sustained a verdict of murder in the first or second degree; but, as appellant was convicted of manslaughter only, murder passed put of the case, and it is unnecessary to recite the evidence or discuss anything about murder. The killing was admitted by appellant. Self-defense was appellant’s only defense. There can be no question but'that if the killing was not justifiable on the ground of self-defense it was manslaughter.

The record is rather voluminous, yet there are but few questions raised or necessary to be decided. Appellant has a printed brief containing more than 100 pages. Some 82 pages of this are devoted to appellant’s contention that the court erred in overruling his motion for a continuance. The continuance was sought on the sole ground of the absence of appellant’s brother-in-law, M. D. Sledge, who is shown to have left the state of Texas not later than May 10, 1913, and at the time of the trial was somewhere in the state of Oregon. Within a day or two after the killing an examining trial was held, at which said Sledge was sworn, testified, and his testimony taken down in writing; signed, and sworn to by him. Appellant or his counsel was present, heard the testimony at the time, and crossed him. It does not appear with certainty that the motion for continuance was contested and evidence heard at the time it was presented and acted upon by the court, but, if not then, it does appear that when the motion for new trial was heard the court then heard evidence on that ground, and, after hearing all the evidence, overruled the motion for new trial. It may be questionable whether the diligence used to secure the attendance of this witness was sufficient. We will not discuss that feature. The claim of appellant in his motion for new trial was that said Sledge was an eyewitness to the killing, and he contended in his said motion that his testimony would tend to show,- or show, that he, appellant, killed Tucker in self-defense, and he claimed, in his said motion, that while he had the testimony of Sledge in writing, he could not use that on the trial because Sledge was in Texas at the time of the trial. His motion for a continuance also shows that he had a stenographic report of'the testimony of said witness on the examining trial, and that defendant “here now exhibits to the court a stenographic report of the testimony of said witness at said examining trial, and here alleges that same is correct, and asks that the court inspect same, and compare same with said original testimony of said witness.”

The court, in approving the bill on this subject, did so with this explanation; “The witness Sledge is a brother-in-law of the defendant, he and the defendant having married sisters, and, according to his, defendant, and his wife’s testimony, they were on perfectly friendly terms with the witness Sledge, and in constant communication with him and his family. At tlie time tlie motion for a continuance was made and acted upon by tbe court, tlie court believed that the witness Sledge’s presence at the trial could have been obtained by the defendant had he so desired. At the time of overruling the motion for a continuance, the court stated to defendant and his attorney that they would be permitted to use the testimony of the witness Sledge given at the examining trial, the said witness having testified at the examining trial, and his testimony having been taken down in writing; he being examined in said examination by the defendant or his attorney. After the trial and conviction of defendant, the court, having heard all óf the evidence, offered to sustain the motion for a continuance, and, the defendant having been convicted of manslaughter, and having been given by the verdict of the jury the minimum penalty of two years, the court considered that, if there was error in overruling the motion for a continuance, in view of the verdict of the jury such error was harmless, in this: The witness Sledge in his testimony in the examining trial, which was taken down in writing, subscribed, and sworn to, testified to no facts that would have justified the killing. In other words, his testimony at best only showed manslaughter, he having testified that he was not looking at either of the parties instantly before the shooting of the deceased by the defendant, and testified to nothing showing an attempt on the part of the deceased to draw a weapon, and testified to nothing corroborating the defendant’s testimony to the effect that deceased made a motion as if to draw a weapon. In other words, the witness’ testimony given on the examining trial in no way tended to show self-defense, and at most only tended to reduce the killing to the greater (grade of) manslaughter. And the court could not assume that the witness would testify on the trial of the case other or different facts than those to which he limited his testimony on the preliminary trial. In the trial of the case the defendant, of his own motion, introduced the testimony of the witness Sledge given on the examining trial, thereby, in the opinion of the trial court, waiving any error that might have been committed in overruling the motion for a continuance.”

The appellant accepted this bill as qualified. It is settled beyond question in this state that when appellant accepts a bill as qualified, he is bound thereby. It is unnecessary to discuss the action of the court in this matter. As qualified the bill clearly shows that the court committed no error in overruling his application for a continuance and in overruling his motion for new trial because thereof.

In another bill, after the style, number of the cause, court and term, and the usual “be, it remembered,” the bill says the following proceedings were had: “The state asked the witness H. G. Paddock the following question: ‘Did you have some conversation with Mr. Hiles about your place some time prior to the time Tom was killed, in which he made some statements about what he would do with reference to killing a man or men under certain conditions? Do you recall that?’ To which the witness answered, ‘Yes, I can recall. * * * ’ To which question and answer thereto the defendant in open court then and there objected, on the ground that a general statement of that character was not admissible, and would prejudice the rights of defendant, which objection by the defendant was overruled by the court, and said witness allowed to testify as follows.” Then the bill proceeds to quote the further testimony of this witness, which was to this effect: That two or three months before the killing appellant was around the witness’ house for an hour or two, talking about the trouble which he, appellant, had with Bowen and Bowen’s wife; and, talking about the woman, he said she need not kick up such a hell of a muss about it; that she was easy enough three or four weeks before. He, appellant, said, “If such a thing happened at my place, and he could get away, it would be'all right, but if I could catch him at it, I would kill the son of a bitch; I would take my shotgun, loaded with buckshot, and shoot him the first time I could catch him.” The witness said to him that would be a pretty harsh way of doing, and appellant replied if he got in trouble he would go to Pecos and employ Judge Ross to defend it for him; that he could get him out of most any kind of trouble; that he had succeeded in getting out of this other trouble. This bill does not give any such statement of the facts surrounding this testimony, nor show why nor in what way it was admissible or inadmissible. In other words, the bill is wholly insufficient to require this court to consider it. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112. However, if we could look to the record on this subject, it would show, outside of appellant’s claim of self-defense, that appellant did shoot and kill the deceased, from his standpoint, because the deceased attempted to do with his wife just what he said to this witness Paddock he would do to any man who attempted or succeeded with his wife, that is, “I would take my shotgun loaded with buckshot and shoot him the first time I could catch him.”

The rule is well established in this state that for a threat to be admissible it must be shown to be directly made with reference to the party against whom it is made. In other words, it must not be merely a general threat. If, however, although not directed specifically towards the person afterwards killed, it was a threat of general malignity which embraced all persons, and thereby embraced the deceased, it would be admissible. Holly v. State, 39 Tex. Cr. R. 308, 46 S. W. 39. Again: “Threats directly or indirectly made are admissible upon the question of motive or malice and intention of the party subsequently acting apparently or directly in line with the threat made.” Owen v. State, 52 Tex. Cr. R. 68, 105 S. W. 513. Again, as said in Helvenston v. State, 53 Tex. Cr. R. 638, 111 S. W. 959, where “appellant expressed himself as ready for trouble, would be admissible with a view of showing, in connection with his act of preparation, reckless disregard of the safety of any one and every one who might antagonize him, and as showing a malignant disposition of all persons, or at least such class of persons as might or would embrace the deceased. In the case of Godwin v. State, 38 Tex. Cr. R. 466 [43 S. W. 336], the court say: ‘If a person declares that he intends to go upon the street and kill some person, and straightway goes upon the street, armed with a weapon, and slays an individual, evidence of the previous declaration made would be admissible, both as a part of the res gestae and as showing a malignant disposition towards all persons, which would embrace the person slain.’ Again, in the case of Taylor v. State, 44 Tex. Cr. R. 547 [72 S. W. 396], the statement considered was as follows: T am going to do some devilment and get my name in the paper.’ The court held this was admissible because it showed a malignant disposition and suggested that the party was bent on mischief. Hardy v. State, 31 Tex. Cr. R. 289 [20 S. W. 561]; Mathis v. State, 34 Tex. Cr. R. 39 [28 S. W. 817]; Hall v. State, 88 S. W. 244.” Again, in Mathis v. State, 34 Tex. Cr. R. 40, 28 S. W. 817, supra, this court held that, where the appellant' two or three years prior to the homicide threatened to kill “any man who fooled with Mandy Smith,” it was pertinent and admissible. The threat in the Mathis Case was made at a time when the deceased in that case had had nothing to do with Mandy Smith, but his relations with her began a long time afterwards. Again, in Anderson v. State, 15 Tex. App. 454, it was shown that the appellant in that case threatened in a general way white men, not directed particularly towards the deceased, but that later he killed the deceased, who was a white man, and the court held that such general threat was admissible. Mr. Wharton, in his work on Criminal Evidence, vbl. 2 (10th Ed.) p. 1703, says: “Conditional threats against any person who had done or might do a certain act are relevant, where it is shown that deceased did the act named, ■or brought himself within the condition,” citing as instances threats made “to show that accused had threatened to kill any man who fooled with Mandy Smith; to show that accused had threatened to kill anybody who hits M. T. The fact that the jury may not believe that the deceased did the act upon which the threat was conditioned does not affect the relevancy of the threat.” Again, on page 1704, he says: “Threats by accused against a class of persons prima facie referable to deceased, though his name is not mentioned, are admissible against the accused. Thus, it is relevant to show threats of violence by the accused shortly before the homicide against policemen, though they are not directed against the deceased himself; to show that accused threatened to kill any one found in the company of a certain lady; to show threats against all who might be concerned in the arrest of accused; to show threats against the family of which deceased was a member; * to show threats against the race to which deceased belonged.”

So that even if we could consider the question attempted to be raised by this bill, the evidence objected to, if it was objected to by the above bill, was admissible.

In another bill, just as meager, and without showing the circumstances of the case so that it could be told therefrom whether the testimony objected to was admissible or inadmissible, appellant complains that, while he was on the stand, his counsel asked him this question: “If you stated to the first people whom you met that you had to do what you did in defense of your family, and did not go on and say ‘in defense of yourself,’ what did you mean by that?” The state objected to this question that it was improper, leading, and it was for the jury to determine what he meant. The court sustained the state’s objection, and would not let him answer the question. He claims that if he had been permitted to answer the question he would have stated that if he made such declarations he meant that the insult to his family by the deceased was the cause of the trouble and resulted in the killing. The court, however, in allowing the bill qualified it by stating: “The witness was denied the privilege of stating what was meant by the term ‘in defense of his family’ as used by the witness testifying in conversation with him, because he had previously, positively, and emphatically denied that he had used such language, and at the time he was placed on the stand and asked this question he had not withdrawn his denial. A witness cannot explain language which he denies having used.” Clearly this bill shows no error on the part of the court.

In another bill, just as meager and as insufficient as the previous ones noticed, appellant complains that after he had testified for himself, the state placed T. Y. Moore-head on the stand, and asked him if it was not a fact that soon after the homicide he met the defendant with his family on the road between the place of the homicide going towards Pecos, and if he did not hear the following question asked’ the defendant, “Did Tom Tucker, the deceased, have a gun?’ that he objected on the ground thgt he was under arrest at the time. The court over» ruled Ms objection, and permitted tbe witness to answer that the appellant said, “No, no; Tucker did not have any pistol.” The bill then states that he requested the .court to be permitted to show that he was under arrest at the time, and that the court admitted that Tom Harrison, the sheriff, and J. C. Prewit would testify that said sheriff had the defendant in his custody, and had turned him over to Ms deputy sheriff, J. 0. Prewit, and told Prewit to take him on to Pecos, and said Prewit would testify that he would not have let the defendant get away; that he was taking him to Pecos. Neither of these persons, Harrison or Prewit, testified at all in the case. The court, in allowing the bill, qualified it by stating: “The defendant himself, while upon the stand, and prior to the testimony of the witness T. Y. Moorehead, had stated that at the time he had the conversation with T. Y. Moorehead he did not consider Mmself under arrest. [Statement of facts, page 46].” The page of the statement of facts referred to by the court in giving appellant’s testimony shows that he testified: “Tom Harrison was sheriff of this county at that time. I met him coming out, and he sent me on back with Oollie Prewit I supposed that Oollie Prewit was an officer; I did not know. As to whether or not I considered myself under arrest while with Mr. Prewit, I had never been arrested. I did not consider myself under arrest until I gave myself up to Mr. Harrison and Mr. Doty.” As stated above, the appellant, having accepted this bill as qualified, is bound thereby.

Of course it is well settled — the statute does that itself- — that a confession made by an accused, when under arrest, and not in writing, etc., is inadmissible, but, as said by this court, through Judge Henderson, in Connell v. State, 45 Tex. Cr. R. 156, 75 S. W. 512: “It has been held that a statement or confession of an accused cannot be used against him, although he had not been formally arrested by the officer, if he believes Mmself under arrest at the time he makes the statement On the contrary, although the officer would not permit a person to depart, yet if a party does not reasonably believe himself to be under arrest, his confession can be used against him, though he has not been warned. The doctrine being that, if the testimony indicates the party reasonably believes, or is conscious that he is under arrest, a confession made, unless he has been warned under the statute, cannot be used against him” (citing cases).

This court, through Judge Hurt, in Craig v. State, 30 Tex. App. 620, 18 S. W. 297, said: “Over objection, the state introduced in evidence the confessions of defendant made to Sue, Sawyer, and Page. The statement of confession was made to these parties next morning after the cutting which resulted in the death of Manuel Oavasas”. The objection urged was that defendant was in arrest* and had not been cautioned as the law requires. The appellant was not cautioned. Was he ,in arrest, within the meaning of the statute? The facts are as follows: Sue states that he, Sawyer, and Jim Page left home early that morning to hunt defendant. They went to another neighborhood, where another party, in charge of a constable, were also to go in search of defendant. Arriving at said place, they learned that the posse had gone on a similar mission to theirs. They went toward defendant’s father’s house for the purpose of finding defendant. They were on horseback, and had one gun with them. In about 200 yards of defendant’s house they saw him going along the crossroad leading to Smith’s place. They rode up to him, and spoke to him. The defendant stopped. They did not make any arrest or tell defendant he was under arrest, but their purpose was to take him to Ft. Spunky to the justice. If the defendant had attempted to leave them, they would not have permitted him to do so. Do these facts show that defendant believed himself in arrest? Were they calculated to induce such belief? If defendant had reasonable grounds to believe and did believe himself in arrest, then his confession was inadmissible. On the other hand, if he did not so believe, his confession was admissible, though Sue, Sawyer, and Page intended an arrest, and would not have permitted him to escape. Did he believe himself in arrest? He certainly did not, because there was nothing said or done which was at all calculated to produce such belief-.”

Again in Hilcher v. State, 60 Tex. Cr. R. 182, 131 S. W. 593, this court in discussing this question, through Judge Davidson, said: “It is true the officer said he did not intend to let him get away until he had satisfied himself about the matter, and that after he satisfied himself about the matter he did arrest appellant. Appellant was not conscious of the fact, so far as the record is concerned, that he was to be arrested, and it is .not shown, as we understand this testimony, that he was under any duress, or that he believed he was under duress when he made the statement. We are of opinion,' therefore, these bills do not justify this court in reversing the judgment.” To the same effect is the case of Martin v. State, 57 Tex. Cr. R. 266. 122 S. W. 558. Again, as said by Judge Brooks for this court in Elsworth v. State, 54 Tex. Cr. R. 40, 111 S. W. 964: “There is nothing here to show that appellant recognized it as a fact that he was under arrest, but as a matter of fact the statement shows that he was not at the time he made the statement. It is not the intention of the sheriff that controls the admission of testimony, but it is the fact that appellant is laboring under mental constraint, and feels that he is under arrest, that excludes the testimony.”

It is needless .to- cite other authorities. This bill does not show that the court erred in permitting this testimony.

The most serious question in the case is presented in appellant’s motion for new trial, complaining that the court failed to limit the testimony of Max Krauskopf and J. A. Drane, wherein they testified that appellant’s witness Mit Thomas signed a written statement and swore to it on the day of the homicide, to the effect that he, Thomas, heard the defendant say prior to the homicide that he, the defendant or deceased one, must die, and that defendant claimed after the homicide to said witness that he had hilled the deceased because of his conduct towards his family, claiming that the failure to limit this testimony for impeachment purposes was calculated to prejudice the rights of the defendant, in that the jury were calculated to, and probably did, take the declaration of the witness Thomas as evidence of the fact that the defendant had made the statement claimed by said witness. This is a fairly full and substantial statement of appellant’s ground for a new trial. He also has a bill of exceptions presenting this objection to the failure of the court to charge on the subject.

The record shows this state of fact: Said witness Thomas was an employe of appellant and lived at his house; he stayed there the night preceding the homicide next morning; was at work there, as he claims, in full view of the killing, though about a half mile distant; that he knew appellant was going to see the deceased on the occasion, because of what the appellant claimed his wife, the night before, had told him of the deceased’s insulting conduct towards her in attempting to induce her to have sexual intercourse with him, and that he attempted to force open her door a night or two previous, for the purpose of having such intercourse with her; that he knew the appellant had his shotgun with him at the time he was going to see the deceased on this occasion; that he saw him approach deceased within about 20 yards, and that both the appellant and the deceased then stopped; that he looked away at this time, and did not see the shot fired by appellant which killed the deceased, but that, immediately upon his hearing the shot, he again looked and saw that the deceased had fallen on the ground and the appellant was in the act of leaving the scene. Thomas denied making any written statement or statement at all to the effect above stated, as shown by said ground of the motion. In the first part of his cross-examination he swore positively that he had not signed his name to any paper before said Krauskopf, but upon being shown the paper and his signature, he admitted that it was his signature, and that he had signed and sworn to it. The statement was shown to have been made the day of the killing. Thomas then testified that he had testified as shown by that written statement, and he then in his testimony quotes what that testimony was. On this particular feature the said testimony as quoted by him in his testimony at the time, states that “he [appellant] told me last night that one or the other of them would be killed. He said he had to uphold his family. I knew what he was going for when he left with the gun. I knew he was a man of his word.” The defendant introduced said Krauskopf, who testified on other features in appellant’s favor. The state, then on cross-examination, proved up completely by him the said signed and sworn testimony of said witness Thomas, and showed that four other persons were present at the time — Mr. Hudson, Mr. Brady, Judge Ross, and Mr. Drane. The state, in rebuttal, then clearly proved up the said written statement of the witness Thomas, by both said witnesses Hudson and Drane, after which the said testimony of said Thomas was introduced and read in evidence.

At the time Mr. Krauskopf testified, showing that the witness Thomas did testify and sign and swear to his testimony, as shown above, the appellant requested the following instruction, which was given, with reference to Krauskopf’s testimony, by the court: “You will not consider the evidence of this witness with reference to what the witness Thomas said at the inquest, or whatever it was, the day of the killing, except as going to the credibility of the witness Thomas. That applies only to the testimony of Judge Krauskopf as given with reference to what Thomas testified.” On this question the court elsewhere stated that neither the defendant nor his counsel requested a special charge covering this matter, and, it not being brought to his attention, was overlooked by him in giving his main charge. The court did not otherwise charge the jury that said testimony of Krauskopf and Drane could be considered by them only for impeaching Thomas. It is not shown that appellant objected to the failure of the court at the time of the trial when the charge was read, nor until after the verdict was rendered.

It will be noted that, while the witness Hudson testified to the same thing as said Krauskopf and Drane, and while the said testimony of the witness Thomas, after being fully proven up, itself was introduced in evidence by the state, the appellant at no time and in no way complained of the failure of the court to limit that testimony at all. So that, so far as he is concerned, both the testimony of Hudson and the said sworn testimony of the witness Thomas was in evidence; no objection was then, or even now, made because the court did not limit their testimony. His objection is that the court did not limit the testimony of Krauskopf and Drane. The court did limit the testimony of Krauskopf, but omitted to limit that of Drane. It will also be noted that this impeaching testimony of Thomas did not go to the question of appellant’s claimed self-defense, but It went to the fact of the killing of the deceased, or on the question of man' slaughter. The killing was admitted. The killing unquestionably and without the shadow of a doubt was at least manslaughter, if appellant faded to establish his self-defense. The jury found him guilty of only manslaughter, and fixed his punishment at the lowest prescribed by law. Then the question is, how has appellant been injured by the court’s said failure? Or has he been injured at all by said failure? Our statute (O. 0. P. art. 743) expressly prohibits this court from reversing a judgment, unless the error appearing from the record was calculated to injure the rights of the defendant. It is the uniform holding of this court in an unbroken line of decisions that, although the testimony of one witness was inadmissible, when properly objected to at the time by an accused, yet, if another witness testified to the same thing, when no objection was made, the admission of the testimony objected to does not present reversible error. Why does not that rule apply in this case? We can see no good reason why it should not. Here three separate and distinct witnesses did testify substantially and fully to the same thing, impeaching the testimony of said witness Thomas on .this trial, and, in addition, the state proved up and introduced his own sworn testimony, which was directly contradictory of his testimony on this trial, which, in effect, amounted to four witnesses testifying to the same impeaching testimony of the witness Thomas. Upon such state of fact the appellant complains merely that the court did not charge, limiting the testimony of two of these witnesses. The court did charge, limiting one of them, but did not as to the other. As we stated above, no complaint was made, either in the court below or in this, of the court’s failure to limit the testimony of Hudson, and, in effect, the testimony of Thomas himself, proven up, introduced, and shown to be directly the reverse of what he testified in this case. Besides, as shown above, the only time and way in which appellant raised the question, during the trial, was when he claimed that said testimony was admissible only for impeachment purposes; the court so recognized, and, as to Krauskopf, so charged the jury. All this in the presence and hearing of the jury. Hence, we take it that the jury understood clearly from all this that said impeaching testimony of Thomas could be considered by them for that purpose alone, and, under all the facts and circumstances of this case, even if it be conceded that the court should have so charged, limiting the testimony of Krauskopf and Drane, that it is not such error as should cause the reversal of this case. The above on the failure of the court to limit said testimony are my individual views, but my Brethern are of the opinion the court’s failure to limit said impeaching evidence is such error as requires a reversal.

Appellant has a bill complaining that the court permitted T. Y. Moorehead to make a map or plat of the ground, and by it in his testimony illustrate and show the location of respective parties and surroundings at the time of the killing, and that the court permitted that plat to be introduced in evidence, at first over his objections, but later reconsidered his ruling and withdrew said evidence from the jury, and orally instructed the jury not to consider it. This shows no error. Appellant’s complaint of it is that the court did not, when he charged the jury in writing, again so instruct the jury, but the court explains that the appellant nor his counsel requested any such instructions at the time when he first withdrew it, or at any other time afterwards, and that his attention was not called to it. This bill shows no error.

These are all the questions raised and presented in this case. For the error of the court in failing to limit said impeaching evidence, the judgment is reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    MATTHEWS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.
    Rehearing Denied Feb. 25, 1914.)
    1. Homicide (§ 340) — Appeal — Haemless Eeeoe.
    Where accused was only convicted of manslaughter, he cannot complain on appeal of the submission of the question of first or second degree murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    2. Ceiminal Law (§ 1043) — Appeal—Presentation of Objections Below — Instructions.
    A general objection to charges on first and second degree murder, manslaughter, and self-.defense, on the ground that the charge violated accused’s rights, in that the issues were not raised by the evidence, and because the charge was “incomplete, improper, and incorrect as propositions of law, and hurtful to the rights of defendant,” was not sufficiently specific to authorize a review of the charges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dee. Dig. § 1043.]
    3. Criminal Law (§ 366) — Evidence—Bes Gestas.
    Evidence by the owner of a drug store, just outside of which the cutting occurred, that decedent immediately after the cutting went into the drug store and stated to witness that accused had cut him, but that he did not know what for, and by another who heard such statements to the druggist, was admissible as res gestae; decedent’s statement having been made about two minutes after the cutting.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    4. Witnesses (§ 78) — Incompetency—Conviction por Felony — Proof.
    Oral proof that a witness has been conviet-ted of a felony and not pardoned, so as to make him incompetent, is competent to prove that fact, in the absence of timely objection, requiring that it be proved by the judgment of conviction.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. § 78.]
    5. Criminal Daw (§ 1168) — Appeal — Reversal.
    Any error in excluding a witness from testifying on the ground that he had been convicted of a felony, and not pardoned, when that fact was not proven by the judgment, was not ground for reversal, where it is admitted that the witness was, in fact, incompetent on that ground, since on a new trial the witness would still be incompetent, and his conviction could be shown by the judgment of conviction.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §S 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]
    6. Criminal Law (§ 865)—Trial—Deliber-ations oe Jury—Time op Deliberations.
    Under the statute, the length of time required by the jury to consider its verdict before it is discharged is for the court’s discretion, and no abuse of discretion is shown, where the jury were held from 4:30 p. m. on May 21st until 10:30 a. m. on May 23d, when they found a verdict.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2069; Dec. Dig. § 865.]
    Appeal from District Court, Wharton County; Robt. G. Street, Acting Judge.
    Brandy Matthews was convicted of manslaughter, and appeals.
    Affirmed.
    Linn, Conger & Austin, of Bay City, 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

   PRENDERGAST, P. J.

Upon an indictment and trial for murder, appellant was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.

The evidence was insufficient to raise the question of murder in the first degree. The court, in his charge, defined murder in the first degree, but, in his charge on that subject, expressly told the jury that the state did not prosecute for a higher offense than murder in the second degree, and did not prosecute for murder in the first degree; that the definition he had given of murder in the 'first degree was given merely as a necessary introduction to and a part of the definition of murder in the second degree. Appellant, in his motion for a new trial, complains of this charge of the court, claiming that murder in the first degree was not called for, that it was unnecessary to define it in order to correctly define murder in the second degree, and it was error to charge at all on murder in the first degree. This is so well settled against appellant, we merely cite Potts v. State, 56 Tex. Cr. R. 43, 118 S. W. 537, wherein this court said: “Serious complaint is made that the court erred in charging on the law and submitting the issue of murder in the first degree. We do not believe that murder in the first degree was raised by the evidence. Appellant, however, was acquitted of this grade of homicide. It is well settled by such an unbroken line of authorities as require no citation that where on a charge for murder appellant- was acquitted of murder in the first degree, he cannot complain either of the fact that such degree of murder was submitted or of errors in respect thereto. This is the settled law of this state.” This would equally apply in this ease to the submission of murder in the second degree and charge thereon.

In one ground of the motion for new trial, appellant complains “because the court erred in his charge upon manslaughter in that said charge is erroneous, incomplete, does not correctly give the law of manslaughter” ; in another, “because the charge of the court upon self-defense is incomplete and erroneous and does not correctly give the law of self-defense as applied to the case at bar, as is shown by defendant’s bill of exception thereto.” We quote these two grounds in full. In another ground appellant complains that a charge on manslaughter was not called for. The bill of exception on the subject is to this effect: He objected to the charge of the court “wherein he charged the definition of law on murder in the first degree, on murder in the second degree, manslaughter, and self-defense * * *. because it is violative of the rights of defendant and injurious and improper in this: First That the same charges upon issues not raised under the evidence. Second. Because the said charge as to murder in the first degree, as to murder in the second degree, as to manslaughter, and as to self-defense is incomplete, improper, and incorrect as propositions of law, and hurtful to the rights of defendant.” As was said in the Potts Case, supra, quoted above, we say, of these various objections, “it is well settled by such an unbroken line of authorities as to require no citation that where” only such general complaints of the charge are made, that they point out no specific error, and are too general to require any review by this court. “This is the settled law of this state.” Byrd v. State, 151 S. W. 1071, and cases therein cited. Besides this, we have carefully examined the charge of the court, and have found no cause for complaint by appellant.

The uncontradicted evidence shows that appellant stabbed the deceased in a very vital part of the body with a pocketknife, the blade of which was 2½ or 3 inches long, at night, just outside but near the store of Mr. Floyd; that the deceased left the scene of the fight between appellant and himself, and at once, went to Mr. Floyd in his store and called Mr. Floyd’s attention to the wound, stating to him that appellant had cut him, and, when asked what for, he said he did not know. Appellant has several bills of exception to the testimony of Mr. Floyd on this subject. It seems that appellant’s objections were that because what tbe deceased so told Mr. Eloyd was not at the very time appellant stabbed deceased, but that he left the scene and had gone into Mr. Eloyd’s store, claiming that the lapse of time, which could not have been exceeding, as the witness states, about two minutes after the stabbing, was so long that it was not res gestse. Clearly Mr.'Eloyd’s testimony and that of Alphonso Davis that he heard the deceased at the time so tell Mr. Floyd, and the testimony of Mr. Floyd objected to, showing when and where he heard of the stabbing, and where he heard it occurred, was all admissible, and was res gestse, and, without doubt, admissible as such; and none of appellant’s bills on the subject are well taken. See Branch’s Crim. Law, § S39, where he cites a large number of eases.

By other bills and the motion for new trial, appellant complains that ’the court erred in not letting his witness Dick Jones testify. The record shows that the appellant introduced Jones as one of his witnesses. After stating his name and that he knew the appellant and the deceased, the district attorney asked him what he said his name was. He answered: “Dick Jones.” The district attorney asked: “Have you ever been in the penitentiary?” The witness answered : . “Yes, sir.” The district attorney then asked him: “Have you ever been pardoned?” He said: “No, sir.” The district attorney then objected to any testimony by this witness because he was incompetent as a witness. The court sustained the objections and would not permit the witness to testify. It seems that, after this action of the court, the appellant, as mere objections, complains that the questions by the district attorney and answers by the witness were had before »he could make his objections and while he was attempting to do so, and then claimed that the best evidence of the conviction and lack of pardon was the judgment of the court and certificate from the Governor that no pardon had been granted. And that he also claimed that this merely went to the credibility of the witness and did not disqualify him.

The statute (article 788, subd. 3, O. 0. P.) expressly makes any one convicted of a felony in this state, or any other jurisdiction, incompetent to testify at all. It is well settled in this state that the best evidence of a conviction is a copy of the judgment and sentence itself. It is as equally well settled that oral proof of it by the witness himself can be shown and is competent, unless objections are timely made to the oral proof, and the copy of the judgment itself is called for. The bills in this case, taken as a whole, show that this proof was made by the witness himself in this ease before any objections were made. However, they also show that perhaps the proof was made so quickly that appellant did not have time or actually make his objections until after the proof was all in. They do not show that he offered the witness again; nor did he move ■to exclude the said oral proof.

Upon the whole, we are inclined to believe that the court’s action in not letting this witness testify was erroneous, but further that, as the matter is presented, it does not present such error as requires a reversal of this judgment. We think it is unquestionably shown that the said witness had been convicted of a felony and served the sentence therein and had never been pardoned. Appellant does not contest this, but practically concedes it. That being so, the witness could not testify on another trial. He would be just as incompetent on the next as on this trial, and, if the district attorney was not then prepared with the judgment to have introduced and shown his conviction, he certainly could do so upon another trial. We therefore think that this does not present reversible error. Griffith v. State, 62 Tex. Cr. R. 642, 138 S. W. 1016; Carden v. State, 62 Tex. Cr. R. 545, 138 S. W. 598; Jordan v. State, 143 S. W. 624.

The record shows that, after both sides closed their testimony, the court announced in effect that the evidence did not raise self-defense, and he would not charge the jury on that subject. Thereupon appellant requested the court to permit him to withdraw his announcement and to introduce the appellant himself. The court permitted this, and the appellant testified. After the conclusion of appellant’s testimony, a colloquy occurred between the district attorney and appellant’s attorneys about a witness named Gene Wells; the district attorney contended that the witness had been in attendance upon court and that he had talked to him before the trial began, and appellant’s attorneys claimed that the witness had not been present, and that before they announced ready they considered the question of applying for a continuance because of the absence of this witness, but did not do so.

The bill shows several questions and statements by each side—the district attorney and the appellant’s ■ attorneys—and . it then develops that appellant objected to a remark of the district attorney in the hearing of the jury, and asked the court to instruct the jury not to consider it. The court replied: “The court does not consider" it worth while to say anything about it.” We agree with the court; and this bill presents no error and shows no injury whatever to appellant.

Appellant again complains of the action of the court in holding the jury together until they found a verdict. This bill shows that the jury were held by the court in consideration of their verdict from 4:30 p. m. on May 21st till 10:30 a. m. on the 23d, at which latter time they found a verdict. Under our statute and decisions, the length of time that the judge shall require the jury to consider of its verdict before he discharges them is necessarily left to the discretion of the court. The bill in this case does not show that the judge abused his discretion, and no error is shown in that respect.

There being no reversible error shown, the judgment will be affirmed.


author: PRENDERGAST, J.

text:
    GRAHAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Rape (§ 52) — Evidence—Sufficiency.
    Evidence, in a prosecution for rape upon a girl under 15 years of age, held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    2. Criminal Law (§ 1091) — Bills op Exception — Review.
    A bill of exceptions merely stating that a copied charge was requested, that the court refused to give it, to which defendant excepted, and a motion for new trial alleging that the court erred in not giving a certain special charge, were too general to authorize or require consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 829) — Triai>-Request-ed Instructions — Given Insteuctions.
    Requested instructions, which, in so far as proper to be given, were embraced in the court’s charge, were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Criminal Law (§ 331) — Bubden op PBoop —Insanity.
    The burden of proof to show insanity, when that is the defense, is upon the defendant and not on the state, although if defendant had previously been legally adjudged insane, and the judgment was introduced in evidence, the rule would be different.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.]
    5. Rape (§ 38) — Admissibility op Evidence —Statements op Pbosecutbix.
    In a trial for rape on a girl under 15 years of age, her testimony that on reaching a junction where she changed cars, and where the offense was alleged to have occurred, she learned that her train would leave for her destination at 6 o’clock in the morning, and that defendant was not with her, was admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. § 38.]
    6. Witnesses (§ 243) — Examination—Statements op Pbosecutbix — Leading Questions.
    In a prosecution for rape on a girl under 15 years of age, questions to her eliciting the details of the offense, though leading, were properly admitted, where she seemed somewhat slow to understand questions otherwise put.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 847; Dec. Dig. § 243.]
    7. Criminal Law (§ 474) — Admission op Evidence-Relevancy.
    In a prosecution for rape upon a girl under 15 years of age, where the defendant set up insanity, but there was no evidence that he had ever been treated for such trouble, expert testimony to the effect that insane persons frequently plan schemes, and that there were institutions where surgical operations were per- ’ formed to relieve brain pressure, was inadmissible.
    [Ed. Note. — For other case¡3, see Criminal Law, Cent. Dig. § 1061; Dee. Dig. § 474.]
    8. Criminal Law (§ 1092) — Bill op Exceptions — Necessity op Court's Approval.
    A bill of exceptions, not approved by the trial court, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    9. Criminal Law (§ 726) — Argument.
    In a prosecution for rape on a girl under 15 years of age, where it appeared that defendant, from the time of his arrest, knew that the state would show by her that she was under 15 years, and his own counsel in argument lamented the fact that the state had not brought neighbors to testify to her age, the remark of the prosecuting attorney, “Oh, you slick one, why didn’t you go and bring some good^ people from that neighborhood up there that would say that she was 15 years old, or that she was not born on the 2d day of January, 1901?” was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    10. Criminal Law (§ 796) — Instructions— Penalty.
    In view of Pen. Code 1911, art. 1069, making the punishment for rape death or confinement in the penitentiary for life or for any term not less than five years, to be fixed in the discretion of the jury, a charge omitting to state that punishment could be by imprisonment for life was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1928-1934; Dec. Dig. § 796.]
    11. Criminal Law (§ 1186) — Appeal—Harmless Error — Instruction.
    Under Code Cr. Proc. 1911, art. 743, as existing when the case was tried, prohibiting the court from reversing on appeal unless the error was calculated to injure the rights of the defendant, error in a charge omitting to state that the punishment might be imprisonment for life, as expressly stated by Pen. Code 1911, art. 1069, was in defendant’s favor and not ground for reversal, especially where the verdict fixed the punishment at 10 years within the peri; od fixed as the lowest punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    12. Criminal Law (§ 822) — Trial—Considering Instructions as a "Whole.
    In determining the sufficiency of a charge, it must be construed as a whole, and not by isolated paragraphs, and regard must be had to the connection and interdependence of its several parts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990,1991, 1994,1995,3158; Dec. Dig. § 822.]
    13. Criminal Law (§ 820) — Charge — Instructions.
    A charge and the language thereof must be given a reasonable and not a strained construction, and the jury must be considered to be such reasonably intelligent and capable men as to put such reasonable construction on the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1988; Dec. Dig. § 820.]
    14. Criminal Law (§ 822) — Instructions as a Whole — Rape—Elements op Oppense.
    In a prosecution for rape on a girl under 15 years of age, a charge that if the jury found beyond a reasonable doubt that defendant criminally assaulted her with or without her consent, she being under the age of 15 years, and not his -wife, they should assess his punishment at imprisonment for not less than five years, unless defendant should be found not guilty, but if they did not find defendant’s commission of the offense, or found that prosecutrix was 15 years old or more, or had a reasonable doubt that she was under that age, then they should acquit, followed by proper charges on the burden of proof, the presumption of innocence and the defense of insanity, taken as a whole, clearly required the jury to believe, beyond a reasonable doubt, all of the essential elements of the offense before they could convict.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dee. Dig. § 822.]
    15. Criminal Law (§ 1099) — Records — Statements of Facts—Appro val by Trial Court.
    A document filed after the adjournment of the term at which the trial was had, and upon a motion for new trial, certified by the court reporter, but not approved by the court, could not be considered.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    16. Criminal Law (§ 1099)—Statement of Facts—Time toe Filing.
    Statements of facts, showing the evidence heard on motions for new trial, in order to be considered, must be filed within term time.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    17. Criminal Law (§ 938) —New Trial — Newly Discovered Evidence.
    To warrant a new trial for newly discovered evidence, it must be shown that it has come to the knowledge of accused since the trial; that it was not for lack of due diligence that he did not discover it before the trial; that it is competent and not merely; cumulative, corroborative, or collateral; that it will probably produce a different verdict; and that it is not offered merely to impeach a witness.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dee. Dig. § 938.]
    Appeal from District Court, Cooke County; O. F. Spencer, Judge.
    George Graham was convicted of rape upon a girl under 15 years of age, and he appeals.
    Affirmed.
    Potter, Culp & Culp, of Gainesville, for appellant. Louis Rogers, Co. Atty., and Owen Davis, Asst. Co. Atty., both of Gainesville, and C. E. Lane, Asst Atty. Gen., for the State.

      3Tor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

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

   PRENDERGAST, J.

Appellant was convicted of the rape of a girl under 15 years of age, and his punishment assessed at 10 years in the penitentiary.

The evidence fully sustains the conviction. Briefly stated, it shows that the young girl alleged to have been raped was just past 12 years of age; that she was traveling on the train from Ochiltree county to New Boston, in Bowie county; that her route took her through Gainesville in Cooke county, where she had to change cars and lie over from some time one day till early the next morning. Upon arriving at Gaines-ville and getting off the train, she ascertained how long she would have to remain there and went to a hotel and procured a room. There appellant saw her, and he began his attentions to her, making her presents, taking her to supper, and finally went to bed and remained all night with her, having sexual intercourse with her that night and also the next day. He also paid her hotel bill. The first act occurred on the night of April 18, 1913, and the other next morning. The officers in some way got information of what had occurred and arrested him on April 19th. His trial and conviction occurred on June 25, 1913. His motion for a new trial was heard, and evidence introduced thereon, and overruled on July 11, 1913, There are several objections to the court’s charge and the refusal of the court to give some specially requested charges.

The only way error is assigned upon the specially requested charges is by a bill merely stating that the following charge, copying it, was requested; the court refused to give it, to which appellant excepted. And in the motion for new trial in effect that the court erred in not giving said special charge, numbering it. It is too well settled to need a citation of the authorities that such bill and motion for new trial are too general to authorize or require this court to consider them. Byrd v. State, 151 S. W. 1071, and eases there cited.

However, we have examined each of appellant’s special charges, which were refused, and those at all proper to be given were fully and substantially embraced in the court’s charge. The other is to. the effect that, if the jury believed from the evidence that the defendant was ever insane at any time prior to the commission of the offense, the state must prove his sanity at the particular time the offense was committed. This is not the law and should not have been given.

It is well established that the burden of proof to show insanity, when insanity is the defense, is upon the appellant and not upon the state. If the party had previously been legally convicted of insanity, and a judgment showing this was introduced in evidence, the rule would be different. In this case there is no intimation that appellant had ever been even tried for insanity, much less convicted.

Appellant complains that, while the alleged raped girl was on the stand, the county attorney was permitted to ask her, in one bill, if she learned when her train would leave for New Boston, and she replied, “Yes, sir.” He asked her when it left; she answered, “Six o’clock.” And he asked when, and she said, “In the morning.” And he asked if the defendant was with her, and she said, “No, sir.” The bill does not show the connection in which these questions were asked and answered. It is certainly of such an immaterial matter that cquld not result in the reversal of the case or in any injury to appellant, but it was admissible anyway.

The other two bills were to this same witness’ testimony. In one the county attorney asked her if appellant did anything to her there. She answered, “Yes, sir.” He asked what did he do, “did he have intercourse with you?” She answered, “Yes, sir.” He asked h'ow long' she had been in bed before this. She said quite a while. He asked if he put his arm around her, and she said, “Yes, sir.” In the other bill it is shown the county attorney asked her what else he did to her. She answered, “Along in the latter part of the night we had intercourse.” He asked, “How did he do that?” “Did he get on top of you?” She said, “Yes, sir.” I-Ie asked, “Did he force your legs apart?” She said, “Yes, sir.” He asked, “Did his private parts enter yours?” She answered, “Yes, sir.” The bills, and neither of them, show in what conne'ction these questions were answered. They were somewhat suggestive and leading, but the court explained the bills to the effect that the girl seemed slow to understand the questions otherwise put. Neither of these, bills show any error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215, and a great many cases decided, both before and since, needless to cite.

Appellant’s seventh bill complains of the court in permitting his. expert witness, Dr. Johnson, to answer certain questions about what lunatics frequently plan and lay schemes and devices to carry out, and about there being institutions where surgical operations áre performed 'on parties who have brain pressure to relieve them, and institutions in which criminals are treated and their brain pressure removed to relieve them and their criminal propensities. The court, in qualifying the bill, stated, “No evidence that defendant had ever been thus treated for any such trouble,” and correctly held that such evidence was inadmissible in this case.

There appears in the record what is claimed appellant’s bill No. 8. This was not approved by the court, and, of course, on that account cannot be considered by this court. Even ,if it had been, it presents no error.

The only other bill is to the argument of one of the special prosecuting attorneys wherein he complains that this attorney said, “Oh, you slick one, why didn’t you go and bring §ome good people from that neighborhood up there, that would say that she was 15, years old, or that she was 'not born on .'thU"2d'.day of Januaip', 1901?” The connection in which this language is claimed to have been used is not given. The court, in approving the bill', did so with the explanation that “the defendant knew from the time, of his arrest that the state would show’ by prosecutrix that she was under 15, and under all the evidence, argument, etc., this remark was not' improper, as defendant’s counsel in argument had lamented the fact that the state had not' brought neighbors to testify to her age.” As qualified, clearly the bill shows no error. We think it was a legitimate argument, and especially so as being in reply to appellant’s counsel’s argument.

There are several complaints of the court’s charge. None of them present reversible error. We will state and discuss such of them as we deem necessary.

The punishment for rape is death or confinement in the penitentiary for life or for any term of years not less than five, to be fixed in the discretion of the jury. P. O. art 1069. In the first part of the court’s charge defining rape and the punishment therefor, as to the punishment, he told the jury that it was by confinement in the penitentiary for any term of years not less than five, or by death, thereby omitting to tell the jury that it could also be by confinement in the penitentiary for life. When he submitted the question to the jury for a finding, he told them that if they found him guilty they would assess his punishment at confinement in the penitentiary for any term of years-they might see fit, not less than five. We cannot understand how such errors are made by the trial judges. In neither of these places in his charge, nor elsewhere, did he tell the jury the correct punishment, and of course in that respect the charge was wrong.

In our opinion, in both instances, however, this was in appellant’s favor and not against him, but especially is this the case when he submits the question to the jury for a finding, for, under that, they could neither lhave assessed his punishment at death nor at confinement in the penitentiary for life. In no event has appellant been injured by this, but, on the contrary, if anything, was benefited by it. Under such circumstances, article 743, C. O. P., as it existed when this-case was tried, prohibits this court from reversing, for it says that judgment “shall not be reversed unless the error was calculated to injure the rights of the defendant.” Besides, the verdict of the jury was for 10 years, clearly within the period fixed as the lowest punishment, and under such circumstances it does not present reversible error. Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Work v. State, 3 Tex. App. 233; Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 953; Christian v. State, 161 S. W. 101.

The fourth arid fifth paragraphs of the court’s charge are as follows:

“(4) Now if you find and believe from the evidence beyond a reasonable doubt'that the defendant, George Graham, did in Cooke county, Tex., prior to the filing of the indictment herein, and about the time alleged therein, have carnal knowledge of Miss Irene Eaton, with or without her consent, and you. also find that at' the time of said carnaL Knowledge, if any, that the said Irene Eaton was then and there a female not the wife of the defendant, and that then and there she was under the age of 15 years, then in that event you will find the defendant guilty and assess his punishment at confinement in the penitentiary for any term of years you may see fit, not less than five, unless you find the defendant not guilty under the section of this charge, hereinafter given you, on the sub-' ject of insanity.
“(5) If you do not find and believe from the evidence, beyond a reasonable doubt, that the defendant, prior to the filing of the indictment herein and about the time alleged therein, had carnal knowledge of the said Irene Eaton, or if you find that he did have carnal knowledge of her, yet you find that she was 15 years old or more, or if you have a reasonable doubt as to whether she was under the age of 15, then you will find the defendant not guilty.”

In addition to this, in other separate paragraphs, the court expressly charged the jury that the burden of proof was on the state; that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and, if the jury had a reasonable doubt as to his guilt, to acquit him. It is elementary that in determining the sufficiency of a charge it must be construed as a whole and not by isolated extracts, excerpts, or paragraphs. It must be treated as an entirety, and regard must be had to the connection and interdependence of its several parts. No charge can be given in one paragraph as a whole. It should necessarily be given in separate and distinct paragraphs. Again, the charge and the language thereof must have a reasonable and not a strained or unreasonable construction. And the jury must be considered to be reasonably intelligent and capable men, sufficiently so to put such reasonable construction on the charge, and not a strained and unreasonable construction thereon. Christian v. State, 161 S. W. 104.

Appellant complains of this language in the close of the fourth paragraph of the court’s charge, “Unless you find the defendant not guilty under the section of this charge hereinafter given you on the subject of insanity,” claiming that it unnecessarily emphasized the fact that the appellant urged insanity as a special defense, and that under the plea of not guilty the burden was on the state to prove beyond a reasonable doubt that the girl was under the age of 15 years, and she was not the wife of the defendant, and that she was a female, and that he had carnal knowledgé of her, and that, unless all these matters were proven to the satisfaction of the jury beyond a reasonable doubt, it would be their duty to acquit, even though defendant had urged insanity as a special defense, and claiming that these words eliminated from the jury every defensible matter, except insanity, and that it was a charge on the weight of the testimony and would impress the jury with the fact that the court believed the defendant guilty and was only submitting the question of his insanity. We deem it unnecessary to discuss these various objections. The charge of the court that we have copied above we think clearly refutes all of these exceptions.

The court charged on insanity as follows: “Among the defenses set up by defendant is that of insanity, and with reference to this issue you are charged that no person can be convicted for an offense committed while he was insane. Now if you find and believe from the evidence that the defendant had carnal knowledge of the said Irene Eaton, and you further find that she was under the age df 15 years, yet you find that at the time of said carnal knowledge, if any, that the defendant did not have sufficient mental capacity, resulting from a concussion of the brain or otherwise, to know the nature or quality of the very act he was committing, if any, or, if he did know the nature or quality of the act, yet he did not know he was doing wrong, or did not know the difference between right and wrong as to the particular act charged against him in his case, then you will find him not guilty on the ground of insanity, and, if you find him not guilty on the ground of insanity, you will let your verdict so say. The burden of proof is on the defendant to establish his plea of insanity by a preponderance of the evidence, and, if he has failed to do so, you will find against him on this issue.” Several objections are made to some particular parts of this charge to this effect: That it assumed the act charged was committed by him and was therefore on the weight of the evidence; that in connection with the fourth paragraph it unduly emphasized the issue of insanity, and in effect it warranted a conclusion by the jury that in the court’s opinion the only issue for them to determine was as to his sanity or insanity, contending that it would not be necessary for the jury, by their verdict, to say that they acquitted on the ground of insanity, that the law only required a general verdict of not guilty, and claiming further that this part of the charge does not require the jury to believe, beyond a reasonable doubt, that the girl was not appellant’s wife at the time of the alleged offense, and that it authorized the jury to convict even if they found by a preponderance of the evidence that he had had carnal knowledge of said girl. We think none of appellant’s objections are tenable. Taking the charge as a whole, it clearly required the jury to believe beyond a reasonable doubt all of the essential elements of the offense before they could convict, and it was not subject to appellant’s objections by any reasonable and proper construction thereof.

By his last ground of his motion for new trial appellant claims to have discovered, since the trial, new evidence by which it can be shown that the alleged raped girl was more than 15 years old at the time. The record unquestionably shows that the court heard evidence on this ground of appellant’s motion and, after hearing it, overruled the motion. There is, with the papers in this cause, a document filed some four weeks after the term of the court adjourned at which this trial occurred, and, when this motion was heard, that purports to be a statement of the facts heard on this motion.

It is certified to by the court reporter, but is nowhere agreed to by the attorneys, nor is it approved by the court. Therefore under no circumstances can it be considered by us. No statement of facts in any case can be considered, unless it is approved by the trial judge.

Statements of facts, showing the evidence heard on motions for new trial, under the uniform and an unbroken line of decisions, in order to be considered by this court, must be fifed within term time, and unless so filed, it cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 144 S. W. 977; Bailey v. State, 144 S. W. 1005. See, also, Jordan v. State, 10 Tex. 502; Sharp v. State, 6 Tex. App. 658.

Besides this, clearly appellant’s motion itself does not show a compliance with the law as to this purported newly discovered evidence so as to show-any error. Gray v. State, 144 S. W. 284.

There being no reversible error, the judgment is affirmed.


author: HARPER, J.

text:
    BUSTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    Animals (§ 14) — Driving from Range — Defense — Evidence.
    In a prosecution for willfully driving a Jersey bull from his accustomed range, it was no defense that defendant did the act charged in order to protect his Hereford cows from being served; and evidence of the difference in value between calves of Hereford cows from a Hereford sire and from a Jersey sire was properly excluded.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 26-29; Dec. Dig. § 14.]
    Appeal from Floyd County Court; Arthur B. Duncan, Judge.
    T. H. Buster was convicted of willfully driving cattle from their accustomed range, and appeals.
    Affirmed.
    T. F. Houghton, of Floydada, for appellant C. E. Dane, Asst. Atty. Gen., for the State.

      Por other eases 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 tlie offense of willfully driving cattle from their accustomed range.

The evidence would show that Mr. Elliott owned some cattle, one of which was a Jersey bull. No stock law being in force, he turned them out on the range. Appellant also owned cattle, which he turned out on the range. His cattle were Herefords, and he objected to Elliott permitting his Jersey bull to run at large, and, after driving the bull from off his leased but unfenced land several times, he finally drove him off and put him in a pasture where the Jersey hull was castrated. Appellant does not deny driving the bull off and putting it in a pasture, but says he did so to protect his cattle, to keep the bull from serving his Hereford cows. He offered to prove by several witnesses the difference in value of calves from Hereford cows from a Hereford sire and from a Jersey sire. There was no error in excluding this testimony, as it was not an issue in the case. As the stock law was not in force, each man had a right to turn his cattle out on the commons to graze, and, if appellant objected to his cattle running with Elliott’s cattle, he should have put his cattle in a pasture, and not driven Elliott’s cattle off and put them in a pasture. Elliott was using his cattle in a lawful way, and, so long as he was doing so, appellant had no right to interfere with them. The issue of protecting his property does not arise under such state of facts. Elliott was not seeking to injure appellant’s cattle, nor did he do any legal wrong in turning them out on the commons to pasture. Appellant could have fenced his land, and then, if Elliott’s male had gotten in his in-elosure, he would have had the right to eject him from such inclosure.

All the questions presented hinge around this proposition: That as he wanted his cattle to run at large, and did not want them served by a Jersey male, he claims the right to drive off Elliott’s bull and put him in a pasture. He had no such right, and the judgment must be affirmed.


text:
    ALDAMA v. STATE.
    Court of Criminal Appeals of Texas.

      Feb. 11, 1914.

    1. Libel and Slade (152)-Criminal Prosecution - Sufficiency of Evidence.
    I Pen. Code In a prosecution for willfully driving a Jersey bull from his accustomed range, it was no defense that defendant did the act charged in order to protect his Hereford cows from being served; and evidence of the difference in value between calves of Hereford cows from a Hereford sire and from a Jersey sire was properly excluded. the candidate of the People’s Party for mayor, and then stated that Villegas was the heir to a fortune; had studied science; and had studied military affairs, learning only to do half a turn; had studied four years in law school, at the end of which time his father was compelled to purchase for him a law license, to which profession he could not dedicate himself, because he never knew what law was; that he was naturally stupid, and had not inherited the integrity and industry of his father; that he inherited his brother’s wife and part of his fortune; and that, not wishing to hurt his modesty, of which he makes so much fuss, nothing would be said of his private life. Held,, that the indictment charged no offense.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419-424, 426, 427; Dec. Dig. § 162.}
    2. Libel and Slander (§ 166) — Criminal Prosecution — Sufficiency of Evidence.
    In view of Pen. Code 1911, arts. 1161, 1167, defining libel in respect to statements affecting the reputation of candidates for office, professional men, etc., and making truth a defense to statements as to their qualifications, evidence'in a prosecution for libel affecting reputation of a candidate held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 166.]
    .Appeal from District Court, Webb County; J. F. Mullally, Judge.
    P. Aldama was convicted of libel, and be appeals.
    Reversed, and cause dismissed.
    A. Winslow, of Laredo, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was indicted for libel. The indictment charges that on March 30, 1912, appellant, with the intent to injure Leopoldo Villegas, did unlawfully and maliciously make, publish, etc., a malicious statement of and concerning said Villegas and affecting the reputation of the said Villegas to the tenor following, to wit-: Then follows what purports to be certain matter in Spanish. The indictment, after copying the Spanish, continues, that said malicious statement is in the Spanish language and was published in a newspaper, naming it, of which appellant was the director, editor, and proprietor “and which said statement when translated from the Spanish into the English language is in substance and effect as follows:

“ ‘Who is the Mayor of the City?
“ ‘In the Sufragio Libre of Thursday, a newspaper whose motto is “Villega, of Vil-legas and for Villegas” the same Mr. Villegas, with that modesty which since some months ago has characterized him, makes himself the following ridiculous question: “Who is the candidate of the People's Party for mayor of the city?” Who am I? Well, who are you? Leopoldo Villegas, son of the old Vil-legas and heir to his fortune. He studied science in St Mary’s College in San Antonio and in St. Edward’s College in Austin. He studied military matters in a military college in New York where all he learned was to do half a turn (meaning about face). He studied four years in a law school, at the end of which time his father found himself compelled to purchase for him the title of a lawyer (meaning his father bought for him a law license or diploma); to which profession he never could dedicate himself because he never knew what law was. An old adage says: “From the smartest fathers are born the most stupid sons.” And Mr. Villegas (meaning Leopoldo Villegas), who after his natural stupidity might have at least inherited the integrity and industry of his father, he only knew how to inherit a considerable fortune which modestly makes it ascend to seven million dollars, perhaps added to those of his deceased brother Lorenzo, from whom he not only got a good capital, but he also inherited from him his exquisite pleasure, finally * * * as of the family (meaning that Leopoldo Villegas not only got a good capital from his brother Lorenzo but he also inherited his brother Lorenzo’s wife). Of his private life we will say nothing because we do not wish to hurt that modesty of which he makes so much fuss. Such is the candidate of the People’s Party for mayor of the city.’ ” '

The record in this case is very meager. It is sufficient to show simply this: That appellant had no attorney to represent him; that he didn’t' speak English; that the district attorney testified merely that he cut this Spanish statement, copied in the indictment, from the newspaper of appellant of which he was the editor, proprietor, etc., and that the translation into English as also copied in the indictment is substantially correct. Said Villegas merely testified that he had lived in Laredo all his life, and then exhibited and introduced in evidence a diploma or license from the Supreme Court of New York admitting him to practice law as an attorney in that state. And then exhibited a license from the Supreme Court of Texas, authorizing him to practice law in all the courts of Texas. That is substantially all of the evidence. The jury convicted appellant and fixed his punishment at sis months’ imprisonment in the county jail. After this he employed an attorney, who made a motion in arrest of the judgment, to the effect that the indictment charged no offense against the law.

Our statute on the subject is as follows:

“Art. 1151. He is guilty of ‘libel’ who, with intent to injure, makes, writes, prints, publishes, sells or circulates any malicious statement affecting the reputation of another in respect to any matter or thing pointed out in this chapter.”
“Art. 1157. The written, printed or published statement, to come within the definition of libel, must convey the idea either — 1. That the person to whom it refers has been guilty of some penal offense; or 2. That he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons; or 3. That he has some moral vice, or physical or mental defect or disease, which renders him unfit for intercourse with respectable society, and such as should cause him to be generally avoided; or 4. That he is notoriously of bad or infamous character; or 5. That any person in office, or a candidate therefor, is dishonest, and therefore unworthy of such office, or that while in office he has been guilty of some malfeasance rendering him unworthy of the place.”
“Art. 1165. It is no offense to make true statements of fact or express opinions as to the integrity or other qualifications of a candidate for any office or' public place or appointment.
“Art. 1166. It is no offense to publish true statements of fact as to the qualifications of any person for any occupation, profession or trade.”

Appellant also made a motion for a new trial on the same grounds as his motion in arrest of judgment, and, in addition, contending that the evidence was wholly insufficient to sustain the conviction.

In our opinion the indictment charges no offense, and the evidence, even if the indictment charged an offense, does not prove any. Nothing stated in the publication is shown to be false in its criticism of him.

The judgment is therefore reversed, and the cause dismissed.


text:
    ULLOA v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Verdict—Conceusiveness.
    Where five witnesses, in a prosecution for unlawfully carrying a pistol, swore that accused had the pistol, while accused and three other witnesses swore that he did not, the question was properly submitted to the jury, and their verdict will not be disturbed, especially in view of the charge on reasonable doubt given at accused’s request.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ -811) — Trial—Instructions — References to Penalty.
    That the court in defining the offense charged told the jury what the penalty was, and in submitting the issues also instructed them as to the penalty to be assessed, was not erroneous as making the punishment too prominent.
    [Ed. Note. — For other cases, see Criminal Law,' Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Juan Ulloa was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of ⅜100.

His first contention is that the evidence does not show beyond a reasonable doubt that appellant had the pistol on the occasion mentioned by the witnesses for the state. Dionicio Evarra, Mary Garcia, Celestina Garcia, Ignacio Evarra, and Miguel 'Cannona all swear that appellant had a pistol, while appellant, Petra Ulloa, Nellie Evarra, and Manuella Ulloa swear he did not have a pistol on that occasion. This was a question of fact which was properly submitted to the jury for their determination, and we will not disturb their verdict, especially so as the court gave the following special charge at the request of appellant: “That a reasonable doubt is that state of case which, after the entire comprehension and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; and a reasonable doubt need not necessarily arise out of the evidence; it may be the result of a want of testimony sufficient to satisfy the mind; and unless you find that the defendant is guilty as charged in the information beyond a reasonable doubt, as herein defined, you will return a verdict of not guilty.”

The only other exception to the charge as given is that as the court in defining the offense told the jury what the penalty was for a violation of this law, and in submitting the issues to the jury instructed them also as to the penalty to be assessed in case they found appellant guilty, made the punishment too prominent. This has been so often decided adversely to appellant we do not deem it necessary to discuss it.

There are no exceptions to the admission of testimony, and, this being the only exception to the charge as given, the judgment is affirmed.