author: PRENDERGAST, P. J.

text:
    BRADFORD et al. v. STATE.
    (No. 3709.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    On Rehearing, Dec. 15, 1915.)
    1. Criminal Daw <S=»1095 — Appeal—Statement oe Facts — Time op Filing.
    The statement of facts in a misdemeanor case having been filed after the adjournment of the term, without any order allowing it, will, on motion, be stricken, and not considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. @=>1095.]
    2. Statutes @=>114 — Subject and Title — Eight-Hour Dabok Law.
    Const, art. 3, § 35, as to subject and title of acts, is not contravened, because the title of Acts 33d Leg. e. 68 (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 5246e-5240g), “An act prescribing * * * the number of hours that shall constitute a legal day’s work on all work * * * performed by or on behalf of the state * * * 01. * * * other * * * legal or politieal subdivision of said state, * * * prescribing penalties for its violation,” does not, as does the act, in terms, mention contractors or persons doing work under a contract.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 145, 147-149; Dec. Dig. @=114.]
    On Rehearing.
    3. Constitutional Law @=>89 — Freedom op Contract — Eight-Hour Law.
    No provision of state or federal Constitution is contravened by Acts 33d Leg. c. 68, limiting hours of labor on public works, whether or not constructed under contract, to eight hours a day, and in terms enacted for protection of the Constitution and health of citizens, though it incidentally abridges right of contract.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. <§=89. ]
    4. Statutes <©=>47 — Uncertainty— Generality op Exception.
    Acts 83d Leg. c. 68, § 2 (Vernon’s Sayles’ Ann. Civ. St. 1914, art 5246f), limiting a day’s labor on public works to eight hours a day, except in case “of emergency, which may arise in times of war, or in cases where it may become necessary to work more than eight hours *_ * * for the protection of property, human life or the necessity of housing inmates of public institutions in case of fire or destruction by the elements,” is not void for uncertainty or indefiniteness, because of the generalities of the emergencies.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. @=>47.]
    5.Master and Servant ©=13 — Eight-Hour Law — Violation—Persons Liable.
    By the terms of Acts 33d Leg. c. 68, not only a contractor for public works, who requires persons to work thereon more than eight hours a day, but an agent or employé of the contractor if he so requires work to be done, is made guilty of a misdemeanor; it not only declaring it unlawful for any persons having such a contract to require laborers to work longer hours, but providing that any person or officer, agent or employé, of such person who violates the act, shall be guilty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. @=13.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    G. H. Bradford and another were convicted, and appeal.
    Affirmed.
    Ed II. Wicks and Henry, McCloskey & Robertson, all of San Antonio, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Each of the appellants was convicted of violating the eight-hour labor law enacted at the regular session, Thirty-Third Legislature, p. 127, and assessed the lowest punishment.

This is a misdemeanor case tried in the county court. The statement of facts was filed after the term of court had adjourned without any order of the court allowing this. Therefore the motion of the Assistant Attorney General to strike out and not consider the statement of facts must be sustained.

Appellants attack said act of the Legislature claiming that it is unconstitutional and void on several grounds.

By section 1 of the act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5240e), it is enacted that eight hours shall constitute a day’s work in one calendar day, for all workmen or mechanics now employed, or who may hereafter be employed, by or on behalf of the state or of any county, municipality, or political subdivision of the state, where such employment, contract, or work is for the purpose of constructing, repairing, or making buildings, bridges, roads, highways, streams, levees, or other work of a similar character requiring the services of laborers, workmen, or mechanics.

The second section provides that all contracts hereafter made by or on behalf of the state, or any of said political subdivisions, with any corporation, person, or association of persons for the performance of any work, shall be deemed and considered as made upon the basis of eight hours constituting a clay’s work, and makes it unlawful for any of suck persons having a contract with the state, or any of said political subdivisions, to require or permit any such laborers, etc., to work’more than eight hours per calendar day in doing such work, except in case “of emergency, which may arise in times of war, or in cases where it may become necessary to work more than eight hours per calendar day for the protection of property, human life or the necessity of housing inmates of public institutions in case of fire or destruction by the elements”; and that, in such emergencies, such laborers, etc., who work to exceed eight hours per day, shall be paid on the basis of eight hours constituting a day’s work; and that not less than the current rate per diem of wages in the locality where the work is being performed shall be paid to such laborers, etc.; and that every contract hereafter made for the performance of work for the state, or any of said subdivisions, must comply with the requirements of this section. It then further provides that the act shall not affect contracts in existence at the time it takes effect, nor affect the present law governing state and county convict labor while serving their sentences as such.

The next section provides that any person, or any officer, agent, or employs of any person, corporation, or association of persons, or any officer, agent, or employs of the state, county, municipality,- or any legal or political subdivision of the state, county, or municipality, who shall fail or refuse to comply with the provisions of the act, or who shall violate any of the provisions, shall, on conviction, be punished by a fine of not less than §50 nor more than §1,000, or by imprisonment not to exceed six months, or by both; and that every day of such violation shall constitute a separate offense.

Section 4 (Vernon’s Sayfes’ Ann. Giv. St. 1914, art. 5246g) repeals all laws in conflict, and expressly the one designated in the section.

Section 5 states that:

“The fact that there is no adequate law now upon the statute books defining what constitutes a legal calendar day’s labor, and regulating the hours of labor upon public work, and the further fact that many laborers are required to labor for an excessive number of hours in one day without intermission, to the material injury of their constitutions and health, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three days be and the same is hereby suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”

The complaint and information are drawn strictly in accordance with the act prescribing the offense. And they go further and negative each and all of the exceptions mentioned in the law, and then aver that on or about September 9, 1914, in Bexar county, Tex., and continuously from said date until December 9, 1914, G. H. Bradford and G. O’Neil were the agents and employés of the Alamo Construction Company, a copartnership and association of persons, composed of O. G. Sheely' and said Bradford and divers other persons whose names are unknown and cannot be set out, had an employment and a contract with said Bexar county for the purpose of constructing a bridge known as the Borregas Bridge on the Borregas Road across the San Antonio river, the construction of which required the services of laborers, workmen, and mechanics; and that said Bradford and O’Neil, agents and em-ployés of said copartnership and association, did then and there unlawfully require and permit several persons, viz., J. A. Crawford, a mechanic, and others, naming them, being laborers, to work more than eight hours per calendar day in constructing said bridge. And then, as stated, negativing that such work was being done in ease of any of the emergencies stated in the law; and, further, that at the time of the taking effect of said act, said contract for the construction of such bridge was not in existence, and that neither of the said laborers, naming them, were state or county convicts, and not serving sentences as such.

We will here state substantially all of the grounds upon which appellants contest the validity of said law. They are: (1) That it is unconstitutional, in that it attempts to abridge the right of contract between employe and contractor, and denies the em-ployé the right to sell his labor as he desires under section 19, art. 1, of our Constitution; (2) that its uncertainty and indefiniteness as to the emergencies provided for in the act render it void; (3) because the title of the act does not mention contractors, or persons doing work under a contract, as required by section 35, art. 3, of the Constitution; and (4) that the complaint and information are insufficient, in that the said act of the Legislature attempts only to create an offense when work is being done by, or on behalf of, the state, or said respective political subdivisions, and that they nowhere are charged with doing work by, or on behalf of, the state, or any political subdivision.

In our opinion, neither of his contentions is sound.

Wie think it unnecessary to enter into any extended discussion of the various questions raised. The said act of the Legislature bears indisputable evidence on its face that it followed substantially, if not literally, both the act of the Legislature of Kansas of 1891 (chapter 114), of that state, and of the act of Congress of August 1, 1892 (chapter 352, 27 Stat. at L. 340 [U. S. Comp. Stat. 1913, §§ 8918-8920]). The said Kansas act was sustained as constitutional by the Supreme Court of Kansas in State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343. And see, also, In re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380. The said Dalton Case, supra, was taken to the Supreme Court of the United States, and the Kansas act fully sustained by the United States Supreme Court as in no way violating any provision of the United States Constitution. Atkin v. Kansas, 105 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148. The said act of Congress was modeled after, and substantially as to the United States, the same as said Kansas act was applicable to that state. The United States Supreme Court, in Ellis v. United States, 206 U. S. 246, 27 Sup. Ct. 600, 51 L. Ed. 1047, 11 Ann. Cas. 589, fully sustained the said congressional act as constitutional under the Constitution of the United States.

In 1 State and Federal Control of Persons and Property, Tiedeman, p. 338, it is said:

“Another common form of statutory regulation of the hours of labor is the provision that workmen on public works shall not be required to work more than the prescribed number of hours per day. Where the regulation is applied to the employes of the city, county, or state government, who are employed and paid directly by these respective governments, the constitutionality of the regulation cannot be questioned; for the reason that these respective governments, in enforcing such a regulation, are only exercising the general right of a party to a contract to insist on a certain provision in the contract of hiring. And it would seem also to be rational to uphold the regulation as a constitutional exorcise of authority, when it is applied to those laborers who are engaged on public works in the employ of contractors to whom the work has been let on contract, if the contract has been let after tbe enactment of the regulation. The requirement as to the hours of labor is properly considered as entering into and becoming a part of the contract between the government and the contractor. * * * ”

The title to the act herein attacked is, “An act prescribing and fixing the number of hours that shall constitute a legal day’s work on all work performed by or on behalf of the state of Texas, or by or on behalf of any county, municipality, or other legal or political subdivision of said state; providing for cases of emergency; prescribing penalties for its violation,” and expressly repealing a certain previous act, designating it, “and declaring an emergency.” We think it clear and certain that this title comprehended and embraced every provision of the said act of the Legislature contained therein, and that it in no way violates section 35, art. 3, of our Constitution, which requires that no bill shall contain more than one subject,- which shall be expressed in the title. Mr. Harris, in his Texas Constitution, p. 250 et seq., collates a large number of the decisions of this and the Supreme Court under said article of the Constitution, and not one of them is authority for holding the said act unconstitutional.

We think there can he no question but that the said act and the complaint and information herein embrace the appellants by its allegations. We have recited them above. It is unnecessary to repeat that.

The judgment is affirmed.

On Rehearing.

In the original opinion we gave the substance of the eight-hour labor law passed by the Thirty-Third Legislature (page 127); but, in order to further discuss appellants’ contentions in their motion for rehearing, we will restate some of them.

The first section of the law clearly prescribes that eight hours shall constitute a day’s work for all laborers, when employed by or on behalf of the state or county in the construction of any bridge, or other public improvement. The object and purpose of the law is stated in section 5, quoted in the original opinion, but succinctly restated is, “the fact that many laborers are required to labor for an excessive number of hours in one day without intermission, to the material injury of their constitutions and health,” thus making the health and constitutions of laborers (citizens of the state) above and superior to, the dollars which their employers might make out of them and their labor by requiring or' permitting them to work, or they voluntarily working “an excessive number of hours in one day without intermission” — a most salutary and humane law. Then, in order that no contractor, for constructing such public improvements, could be taken unawares, the first part of section 2 requires that all contracts in future by or on behalf of the state or county for constructing any of said public improvements “shall be deemed and considered as made upon the basis of eight hours constituting a day’s work.” Then section 2 continues:

“It shall be unlawful for any corporation, person or association of persons having a contract with the state or any political subdivision thereof, to require or permit any such laborers, * * * to work more than eight hours per calendar day in doing such work, except in case of emergency.”

The excepted emergencies are quoted in the original opinion. Section 3 prescribes the offense. So far as this case is concerned, it is: “Any person, or any * * * agent or employé of any person, * * * or association of persons, * * * who shall fail or refuse to comply with the provisions of this act or who shall violate any of the provisions of this act, shall, on conviction thereof”1 be punished as prescribed in the latter part of this section.

We know of no constitutional provision of our own Constitution, or of the Constitution of the United States, nor of any decision in our state, or by the United States Supreme Court, which directly or indirectly inhibits the Legislature from passing a law, under its unquestioned police power, to protect the lives, and constitution and health of its citizens. In fact, it would be the imperative duty of the Legislature, if the necessity arose, to enact such legislation. This eight-hour law, as it shows on its face, was enacted for such purposes, and under such necessity, as to show it is in no way void or unconstitutional, even if it incidentally curtails or abridges the right, under the circumstances as enacted, of an employer and employe ordinarily privately and personally contracting in the particulars prohibited. Their private and personal right, if so, must yield to the necessary and imperative pub-, lie good.

Neither is the act - void for uncertainty or indefiniteness because of the generalities of the emergencies, which authorize laborers to work more than eight hours. Such exceptions and emergencies must necessarily be stated in general terms. It would be interminable and unreasonable if the Legislature had to incorporate specifically each and every such emergency, in order to enact a valid law. And, if such was the case, an ingenious accused might, when prosecuted, or his attorney, think of some other emergency not thought of and included by the Legislature, and thereby render void the act. While these exact exceptions or emergencies may not have been passed on by this and other courts, yet similar general ones in other statutes have been, and the courts have uniformly sustained the validity of such acts against just such contentions as appellants make herein.

We will cite some of them. Our Penal Code (1911), under articles 46 and 47, in prescribing that a person is guilty of no offense when laboring under a mistake of fact, prescribes:

“And it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.”

In Watson v. State, 13 Tex. App. 81, this court, as to the words of said article quoted, among other things, said:

“We think the learned judge should have given in charge to the jury, substantially, the above articles, leaving the jury to determine from the evidence in the case whether or not, under all the facts and circumstances of that particular case, the mistake of the defendant, if he was mistaken, arose from a want of proper care on his part. The question as to proper care, we think, depends upon the facts in each particular case. No general rule can be proscribed in relation to it. What would be proper care in one ease might be gross negligence in another. What would be proper care when considered with reference to one individual might not be when applied to another.”

To the same effect is the decision in Hailes v. State, 15 Tex. App. 93.

Again our statute (P. 0. 1911, articles 1114 and 1117), in defining negligent homicide, says that, if any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty, etc.; and says the degree of care and caution is such as a man of ordinary prudence would use under like circumstances. In Morris v. State, 35 Tex. Cr. R. 316, 33 S. W. 539, complaint was made that the trial judge failed to tell the jury what was ana what was not negligence. As to this the court said:

“There was no error on the part of the court in failing to further define ‘negligence’ than as given in the main charge. The charge of the court is in the following language: ‘The degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under.like circumstances.’ This was in accordance with the language of the statute on the subject, and is in consonance with -the ordinary definition of negligence.”

See, also, Baskins v. State, 171 S. W. 727, where we discussed and gave further illustrations that are applicable herein.

The United States Congress, by the Act of March 4, 1907, c. 2939, § 2 (34 Stat. 1416; U. S. Comp. St. 1913, § 8678), enacted that telegraph operators, train dispatchers, etc., are not permitted to serve more than nine hours in the 24-hour period in offices operated continuously night and day, or 13 hours in offices operated only during daytime, except in case of emergency, when the employes named may be permitted to be and remain on duty for four additional hours, etc. In the case of B. & O. Ry. Co. v. I. C. C., 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878, the above words contained in the statute, “except in case of emergency,” were vigorously assailed as so uncertain as to render the statute void. The Supreme Court held that such words did not render the statute void, saying that the argument claiming that these words rendered the law invalid “denies to the Legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define without the use of generic terms all the specific instances to be brought within it. In a legal sense, there is no uncertainty. Congress by an appropriate description of an exceptional class has .established a standard with respect to which cases that arise must be adjudged.” See, also, State v. I. & G. N. Ry. Co., 179 S. W. 867, where our Supreme Court discusses fully this question and cites the decisions of this state and of the United States Supreme Court, wherein such general exceptions or emergencies, as in this case, were uniformly sustained as against such complaints as appellants make in this case. We think it clear that the exceptions or emergencies stated in the act in no way render the law invalid or void.

We also think it clear that the complaint and information in this case properly charge an offense under said act, and that appellants’ contention that the pleading is insufficient because it does not charge that the appellants were doing the work themselves on behalf of the county, nor the work they were doing was not done by them directly by or on behalf of Bexar county, is untenable. The complaint and information plainly allege, among other things, that the Alamo Construction Company, a copartnership and association of persons composed of C. G. Shelly and G. H. Bradford (who is one of the appellants), and divers other unknown persons, had employment and a contract with Bexar county to construct for said county, a certain bridge therein, describing its location, requiring the services of laborers, etc., and that G. H. Bradford and 'C. O’Neil (appellants) were the agents and employés of said construction company, and that they did then and there unlawfully require and permit certain persons, naming them, to work more than eight hours per calendar day in constructing said bridge, then alleges such work was not done under any of the emergencies or exceptions named in the act. It is thus seen that Mr. Bradford was one of the contractors himself, but that, in requiring and permitting the laborers to work more than eight hours per day, he and the other appellant, O’Neil, were acting as the agents and employés of all the other contractors under the name of said construction company. The law was so framed as to embrace not only the contractor himself, who directly contracts with the county, but also “any person” and the “agent or employe of any person, who shall fail or refuse to comply with the provisions of this act” — not only so, but any person, agent, or employs of any person, “who shall violate any of the provisions of this act,” shall, on conviction, etc., be punished. The law, no doubt, purposely embraced not only the contractor himself, but also any person or the agent or employs of any person, who had a contract with the county to do. such work, from requiring or permitting laborers to work more than eight hours so as to prevent any evasion of the clear intent of the law. If it had not done so, all any contractor would have to do to evade the law and the intent thereof would be to get a contract from the county, then employ an agent or give some employe authority, who would require or permit the laborer to work longer than eight hours, and that too notwithstanding he had made his contract upon the basis of eight hours for a day’s labor under section 2 of the act. The information is valid and charges an offense under the law.

The motion for rehearing is overruled.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

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

license: Public Domain

text:
    CROWDER v. STATE.
    (No. 3825.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Homicide <§=340 — Trial—Instructions^Lesser Degbees.
    Although there is evidence supporting a charge of murder, but no evidence of negligent homicide, an instruction submitting that issue is not reversible error, since it is more favorable to the defendant than the evidence justifies.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dee. Dig. <§= 340.]
    2. Indictment and Information <§=191 — “Mtjbdeb” — Included Offenses.
    Under Code Or. Proe. 1911, art. 771, providing that the jury may acquit of the offense charged and convict of an included offense, and article 772, providing that “murder” shall include all lesser culpable homicides and assault with intent to commit murder, negligent homicide is included in the offense of murder, and conviction of that offense may be had under an indictment for murder.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 265, 604^621; Dec. Dig. <§=19L
    For other definitions, see Words and Phrases, First and Second Series, Murder.]
    3. Criminal Law <@=935 — New Trial — When Geanted.
    Although one accused of murder was convicted of the included offense of negligent homicide, as to which there was no evidence, he was not therefore entitled to a new trial under Code Cr. Proc. 1911, art. 837, subd. 9, providing for new trial in felony cases, where the verdict is contrary to the law and evidence, but that a conviction of a lesser included offense of the same nature as that proved shall not be deemed to be contrary to the law and evidence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §(j 2193, 2194, 2297, 2298, 3068; Dec. Dig. <@=935.]
    4. Homicide <§=156— Trial — Evidence—Admissibility.
    In a prosecution for murder, evidence of a deputy sheriff and another acquainted with firearms that the weapon used took only a certain cartridge was admissible on the question of defendant’s intent in firing the weapon.
    [Ed. Note. — For other cases, see Homicide. Cent. Dig. §§ 286, 2S7; Dec. Dig. <§=>156.J
    5. Homicide <§=174^-Trial — Evidence—Ad - ' MISSIBILITY.
    Where the defendant claimed the killing was accidental, and showed his expressions of grief as res gestee, it was competent for the state in rebuttal to show expressions to other witnesses to the effect that they might be out after him and break his nock, and he did not “give a-” if they did, though made some time after the killing;
    [Ed. Note.' — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <§=174.]
    6. Criminal Law <§=3413 — Self-Serving Evidence.
    It is not error to exclude testimony of the parents of one accused of murder as to his acts and statements some time after the killing, where all res gestee evidence was admitted; the excluded evidence being self-serving.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <@=3413.]
    7. Criminal Law <§=730 — Trial — Conduct of Counsel — Instructions.
    Error in admitting improper argument of the prosecuting attorney is cured by instructions to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=730.]
    Davidson, J., dissenting.
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Gabe Crowder was convicted of negligent homicide of the first degree, and he appeals.
    Affirmed.
    L. J. Truett, of McKinney, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and tried for murder. He was convicted of negligent homicide of the first degree, and his punishment assessed at one year in jail.

Appellant correctly states that the theory of the state was that appellant was guilty of murder or of said degree of negligent homicide. His defense was that the killing was simply accidental. The court correctly submitted his defense in a charge not complained of. The jury found against him on evidence which fully justified their finding on this issue.

The court submitted the issue of murder and also said degree of negligent homicide in correct charges, which are in no way complained of by appellant. Neither did appellant at the time, nor does he now, as we understand, complain that the court should not have submitted negligent homicide at all; but he now claims that the evidence did not raise the issue of negligent homicide. He concedes and we think there can be no question but that the evidence raised the issue of murder, and the verdict of the jury on that issue would have been sustained by the evidence. There can be no question, and as we understand appellant does not controvert it, that under an indictment and trial for murder, when the court by his charge submits for a finding an issue more favorable to him than the law and evidence would justify, he has no just cause to complain, and, even though the evidence does not justify the submission of the issue, it is in his favor and presents no reversible error. Christian v. State, 71 Tex. Cr. R. 574, 161 S. W. 101, and cases there cited. Especially would this be the case under our recent statute, where appellant at the time made no objection whatever to the court’s charge submitting such issue in his favor.

Neither can there be any question, both under our statute (articles 771, 772, C. C. P.) and uniform decisions of this court, that an indictment and trial for murder includes all the lesser degrees of culpable homicide, which unquestionably includes, among others, negligent homicide of both degrees.

However, after the trial and conviction herein, with the indictment, evidence, and charge of the court as herein recited, for the first time after the trial and conviction he contended, and now contends, that as he was acquitted of murder, and found guilty of negligent homicide, there was no evidence raising the issue of negligent homicide. Hence he contends he is entitled to a new trial on that ground. In the view we take of this case under our statute (article 837, subdiv. 9, C. C. P.), which prescribes;

“New trials in cases of felony shall be granted for the following causes and for no other: * * * (9) Where the verdict is contrary to law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved”

—and said articles 771, 772, above cited, where it is enacted:

“Where a prosecution is for an offense consisting of different degrees, the jury may-find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.”
“The following offenses include different degrees : (1) Murder, which includes all the lesser degrees of culpable homicide. * * * ”

—his contention is unfounded, We have carefully read and studied the' evidence in this case. We think it certain, without reciting it, that the evidence did raise the issue of negligent homicide; but, whether it did or not, it is the settled law of this state by a long line of decisions that appellant would be entitled to no new trial. This court, speaking through Judge Davidson, in Pickett v. State, 43 Tex. Cr. R. 6, 63 S. W. 325, said:

“Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree.”

In the case of Gray v. State, 61 Tex. Cr. R. 459, 135 S. W. 1179, the court, through Judge Ramsey, in an exhaustive and elaborate opinion, wherein he cited, quoted from, and discussed the previous decisions of this court on that question, held in accordance with Judge Davidson in the Pickett Case; supra. In that opinion of Judge Ramsey is also quoted and approved an exhaustive and elaborate opinion by Judge Brooks, for this court, in Cornelius v. State, 54 Tex. Cr. R. 173, 112 S. W. 1050, wherein Judge Brooks also cited, discussed, quoted from, and approved the previous decisions of this court so holding. We think it unnecessary to again discuss this question. We regard it as settled against appellant’s contention. Hickey v. State, 62 Tex. Cr. R. 578, 138 S. W. 1051; Gray v. State, supra; Cornelius v. State, supra; Burnett v. State, 53 Tex. Cr. R. 515, 112 S. W. 74; Pickett v. State, supra; Chapman v. State, 53 S. W. 103; Conde v. State, 35 Tex. Cr. R. 104, 34 S. W. 286, 60 Am. St. Rep. 22; Scroggins v. State, 32 Tex. Cr. R. 74, 22 S. W. 45; Powell v. State, 5 Tex. App. 234; Templeton v. State, 5 Tex. App. 407; Brown v. State, 50 S. W. 354; Fuller v. State, 30 Tex. App. 562, 563, 17 S. W. 1108; High v. State, 54 Tex. Cr. R. 333, 112 S. W. 939.

The pistol with which the killing of the deceased by appellant was done was produced, identified, .introduced in evidence, examined, and testified about by several witnesses, among others by Sam Welch, a deputy sheriff, who among other things testified that said pistol shoots only a 44 Smith & Wesson American cartridge. He showed that he had made many tests with the pistol, testing it with other cartridges and with the said make only. It is unnecessary to detail his evidence. It was on the issue of attempting to show, and tended strongly to do so, that the pistol at the time it was fired and killed deceased could not have been accidentally fired, as claimed by appellant, but that it must have been intentionally fired by him. Thereupon the state introduced Mr. Grant, who among other things, as shown by the qualification by the court of appellant’s bill of exceptions on that subject, testified that he had handled firearms about 20 years and was well familiar with the cartridges made in America and foreign countries, and that the Smith & Wesson 44 American cartridge was the only shell on the market that can be discharged in said pistol that he knew of or that was shown in any catalogue. We think this testimony was admissible on said issue, and that the court did not err in not excluding it upon appellant’s motion after it was introduced.

With the issues as stated, the state introduced its testimony on said theories of the state and rested. Appellant introduced his testimony on the claim that the pistol was fired simply accidentally, and his res gestee acts, statements, and conduct to the effect that he cried and gave expressions to his grief, and claimed that the killing was accidental. The state in rebuttal, on both of its theories, but especially on that of murder, was correctly permitted to have the witness York, over defendant’s objections, testify in effect that some time after the homicide, on the same night and after many intervening circumstances and considerable time, the witness saw defendant out in the lane in front of the latter’s house and heard defendant say:

“Well, they may be out after me to-night, or they may not; they may send me to the penitentiary, or they may break my damned neck; X do not give a God damn if they do.”

The court correctly held that this testimony was admissible, as well as that the state could ask, and did. appellant, while he was testifying, if he did not make said statement to York, or in his hearing; he denying the substance of what York testified.

The court did not err in excluding the testimony of appellant’s father and mother to the effect that after the killing, and between the time of appellant’s res gestee acts, conduct, and statement and the time that York testified, appellant said to Mm what he did, because we think their testimony was not res gestee, but self-serving by appellant. Besides this, the court has shown by his qualification of the bill, permitted not only appellant, but all other witnesses he offered, being several, to testify to his said res gestae acts, statements, and conduct, and we think it certain that he did make such res gestae statements, and his action and conduct at the time testified by him and his witnesses was not controverted. They were practically established without dispute.

Complaint is made of the county attorney’s argument in one particular before the jury, and what he said when appellant objected thereto. The court sustained his objections, and instructed the jury not to consider the same, This presents no reversible error. Mooney v. State, 176 S. W. 52, and eases there cited.

The judgment is affirmed.

DAVIDSON, J.

I cannot concur. If negligent homicide is not in the ease, this conviction is clearly erroneous. If that question was not an issue, the jury having acquitted of murder, the accused was entitled to an acquittal. The jury were authorized to and did convict, under such state of case, of an offense not in the record. I may write later, if time affords opportunity.
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