text:
    STOCKTON v. STATE.
    (No. 4347.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.)
    1. Criminal Law <@=>366(3) — Evidence—Res Gestas.
    In a prosecution for assault with, intent to rape, evidence of the complaints of prosecutrix made to the people with whom she was staying immediately upon her jumping from defendant’s buggy and reaching the house, was admissible as part of the res gestrn.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 819.]
    2. Witnesses ®=»360 — Impeachment — Rebuttal.
    In a prosecution for assault with intent to rape, where prosecutrix did not obey a subpoena, but departed on the day the case was set for trial, and defendant elicited such fact from her on cross-examination, thus attacking her credibility, it is proper to admit in corroboration testimony that the prosecutrix left because of a statement communicated to her that defendant would disgrace her by bringing in men to testify as to her improper conduct; such testimony being limited to the matter of corroboration, and the jury being instructed that they could not regard it as evidence against defendant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 825.]
    3. Assault and Battery <©=^83 — Aggravated Assauli^-Evidenoe — Admissibility.
    In a prosecution where accused was convicted of aggravated assault, the county attorney may testily that two or three days after the assault when prosecutrix came to him to institute a prosecution he saw a black spot on her arm, it being prosecutrix’s contention that accused bit her on the arm.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 128, 134.]
    4. Rape i@=>49(2) — Evidence—Complaint.
    In a prosecution for assault with intent to rape, where the assault was committed on Saturday and prosecutrix did not return to her home until Monday, her father may testify that as soon as she returned she made complaint.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 70.] ■
    5. Indictment and Information <&^189(5)— Conviction of Offense Included in Charge.
    Where accused was charged with assault with intent to rape, and it appeared that he had made an indecent assault on prosecutrix, he may be convicted of aggravated assault, though prosecutrix did not in her complaint state that the assault caused her a sense of shame and humiliation.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 588.]
    6. Indictment and Information <®=>189(5)-— Conviction of Offense Included in Charge.
    Code Or. Proc. 1911, art. 771, declares that where a prosecution is for an offense consisting of different degrees, the jury may find accused guilty of lesser degrees than that charged in the indictment, while article 772 declares that an assault with intent to commit any felony includes all assaults of an inferior degree. Article 837, prescribing the grounds for new trial, declares that a verdict is not contrary to the law and the evidence whefe defendant is found guilty of an offense of an inferior grade, but of the same nature as the offense proved. Held, that an indictment for assault with intent to rape includes an aggravated assault, and where the evidence tended to show such an assault the court properly submitted that question to the jury.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 588.]

    7. Rape <@=^59(19) — Prosecution — Instructions.
    In a prosecution for assault with intent to commit rape, where all the evidence showed that accused fondled prosecutrix without her consent, and there was testimony that he also bit her on the arm, the issue of aggravated assault was properly submitted to the jury, and a requested charge that if accused u^ed undue familiarity with the person of prosecutrix, but without intent to injure her, or to cause a sense of shame, and that he had a good reason to believe that his advances would not create a sense of shame, and did not in fact do so, he should be acquitted, was properly refused.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. § 98.]
    8. Rape <s=m59(23) — Prosecution — Instructions — Refusal.
    In a prosecution for assault with intent to rape, where the evidence disclosed at least an aggravated assault, a requested charge that if accused’s undue familiarity caused prosecutrix no sense of shame, his me re use of indecent and insulting language could not constitute an aggravated assault, was properly refused; it appearing that the evidence showed prosecutrix repulsed accused’s caresses.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. § 99.] ■
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Lonnie Stockton was convicted of aggravated assault, and lie appeals.
    Affirmed.
    S. R. Allen and A. R. Eidson, both of Hamilton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted September 4, 1915, for an assault with intent to rape Miss Leady Joiner on April 24, 1915. The indictment was returned at the first term of the court after the alleged assault. He was tried September 12, 1916, found guilty of an aggravated assault, and his punishment assessed at 45 days in jail and a fine of $200.

At the time of the assault, Miss Leady, the assaulted girl, was just 19 years old, and lived and had been raised in the country in the neighborhood near where the assault occurred. She was a country girl. Appellant at the time was a matured man, 28 years old, and had known her for 10 years or more; ever since she was a young child. They had never been sweethearts, and he had never before accompanied her anywhere nor in any way waited on her.

The assault occurred in appellant’s buggy early in the night of April 24th. That day about noon, or soon after, they met, both attending a picnic in the community. For a while that evening at the picnic they sat together in an open hack near another couple who sat in a buggy. Appellant claimed that while they sat in said hack, he undertook to take some liberties with her person by pinching her breast. She swore that no such thing occurred. During the evening, somewhere on the picnic grounds, he made an engagement with her to take her that night to a party or dance in the same neighborhood. She informed him that she would spend the night with her friends, the Au-steds, which was nearer to the party, or dance, they were to attend than her home. She was a welcome guest at the Austed’s and was a frequent associate with the young ladies — three of them- — of that family.

Mr. ,T. M. Austed and three of his young daughters at the time of the assault testified. So did Miss Leady and appellant. The Austeds differed as to the time appellant came there to take Miss Leady to the party, or dance. Som'e of them thought it was rather late. The witnesses also differed as to whether or not it was raining at the time or merely threatening to rain. Most of them testified that it was raining. As to the time, appellant himself swore: “It was dusky when I got to the house. It was not good dark when wé left the house. * * * It was good dusk when we left the house.” Mr. Austed testified that when appellant came to his house for said girl, he advised him that the weather was so bad that he didn’t hardly see how he could go out in it. He told him he would get wet. Appellant replied: “I have got the buggy pretty well curtained up, and we will feel nearly as comfortable as if we were in the house.” Mr. Austed offered no further objections to their going. Mrs. Bertha Harris, one of Mr. Austed’s young daughters who was unmarried at the time, but married since, testified that when appellant reached her father’s to take Miss Leady to the party, he asked the girl if they should go, and that she replied that she had just as well go as not, and he said it did not make any difference to him — that he would just as well go as not. She further testified: “The girl said she was not afraid of a storm, and she went ahead and got ready, and they left.” She further swore on cross-examination: “They both seemed to want to go to the party.” Miss Leady herself swore that when appellant so came after her, she asked him if he thought it was too bad to go, and he said, “we would go to the party.” That when he same there for her, “there come up a cloud, and it was misting some.” She provided herself with wraps. Young Mr. Austed offered her his overcoat, which she took and put around her to keep from getting wet. The appellant had his buggy top up and the side curtains on.

Miss Leady further testified that when they got about 100 yards from the house he put his arm upon the back of the buggy seat back of her. She tried to get him to take it down, and when he would not, she pushed it down a number of times. The substance and effect of the testimony further is: That' he besought her to permit him to kiss her and to have sexual intercourse with her. She persistently refused. He then grabbed hold of her and attempted to raise her dress and put his hands on her person. That she was fighting him off all the time. That she tried a number of times to get out of the buggy, and he would not let her. That he threatened to choke her, saying: “I will choke you, you damned little devil you.” In order to get to the party, they had to go out a gate from Mr. Austed’s pasture. The Austeds and appellant and Miss Leady all testified as to the distance of this gate from Mr. Austed’s house, making it from a little less than a quarter of a mile to about a half mile. She testified that when they got to this gate, she besought him to open it and drive on. He refused to do so, and stated that he would not go out of the gate at all unless she would have sexual intercourse with him. That he worried and scuffled with her, attempting to effect his purpose, until she was practically exhausted. That after this course of conduct on his part at the gate lasted for some considerable length of time, he finally turned the buggy and started back the way they had come towards Mr. Austed’s and got about half way, he still attempting to force her to have intercourse with him. That she could not get loose from him. That in his attempt to force her, and his struggle with her, he tore the placket of her dress and also her sleeve, and bit her on the arm just above the elbow. That finally when she saw she could not get away from him otherwise she told him that she would consent if he would turn her loose, and to fix himself. That when he turned her loose to fix himself, she caught hold of the top of the buggy, swung herself out, and jumped over the front wheel. She swore:

“When I got away from Lonnie I wa? wrestled completely down, and was so nervous that I could not hardly get to the house. He called me a damn little devil a number of times, and he called me a son of a b-- once. I-Ie threatened to choke me till I submitted to him. * * * He had his hands everywhere (on her person) where he could get them, and was trying to raise my clothing all that time. He was doing his best to accomplish his purpose. When I got out of the buggy I went right straight to the house as fast as I could and never stopped.”

Mr. J. M. Austed, his said daughter Mrs. Harris, Miss Jennie Austed, another one of his daughters, and Mrs. Ida Austed Over-guard, another one of his daughters, who was unmarried when the assault occurred, but married when she testified, all testified to the statements of Miss Leady made to them immediately upon her reaching the house, telling them in substance what had occurred —the- assault that appellant had committed upon her, her escape from him, and, in fact, substantially what appellant had done and said to her. They all swore that when she reached the house and made these statements to them, she was greatly excited, and some said mad also. Mrs. Harris said that she just bolted-through the door and said: “Martin, get the gup, and ;I .will go shoot that -damn fool” (or “we” will do so). (Martin ¡was Mrs. ■ Harris’ brother, a married man.) She further swore that Miss Leady was carrying her belt in her hand; that it had been broten or torn oft of her; that her hair was down-; that her clothing was wet and muddy.' They all testified that she exhibited to them the wound on her arm and told them at the time that appellant had bitten her there. Appellant swore that when she jumped oiit of the buggy and started to the Au-steds’ he thought she was’in earnest; “she acted like she was.” That he did not follow her at all. “I stood there a minute or two and waited, * * * ” and then' went on to his home. - -

The witnesses differed as to the length of time which had elapsed from the time appellant started with Miss Leady, ostensibly to the party, until she thus returned, one of them saying that it was only si short time after they left until she thus returned; others that it was an hour or two; some that it was less than an hour. On this point appellant himself in his direct testimony swore: “I suppose it was about 30 minutes from the time the girl and I left Mr. Au-sted’s until she jumped out of the buggy.”On cross-examination he said that he had heard Mr. Austed and his girls testify that it was from an hour- to two hours -from the time they left until the girl returned to the Austeds’, and said there was a mistake about-the timé, and he swore again:- “I think it was1 about 30 minutes after T left before she jumped out of the buggy.”

He testified in substance that soon after they, left the Austeds’ house that night, he and Miss Leady got to hugging-and kissing. She positively denied all of this, but said after he had exhausted her in her struggles to protect herself, he did kiss her, but without her'consent. He swore he did not drive to said gate at.all with her, nor stop there; that he only went about half, way to the gate and stopped, and.that that1 was where she jumped put of the buggy and went back to the Austéds’. He,,swore 'that when- he went for her that night, he did not intend to take hfer to the party, because he did riot want to be Seen in company’ with her; -that he did not tell ■ the girl that he- did not interid to take her to the party, arid that he supposed-she thought he was; that she did not know" that he did not intend' to take her to the party V~ that' he did not tell her he was not.' He further swore that, while he was attempting to induce the girl to yield to him, -“I put my hand over on her leg árid she objected-to-that, * * *' arid- every tithe • I put my h'ánd ori her-leg -she would push it-away, * - * -arid’I put'my hand over on her leg,* and she says, 'Danin-you, keep your hands off óf me” ” Mr. Austed swore that the next day he werit- down to this gate and tracked appellant’s horse and buggy to ’the gate, arid there "saw where the horse and 'buggy-had: Beeri rifoppeff- some -time:; «'that'--:íhéíí-'hofsev made tracks there showing this; that then the buggy was turned round and driven back up to about where the girl jumped out of it, and there it was again stopped. Mrs. Harris swore substantially to the same thing. Appellant denied that he had bitten the girl on the arm, as she swore he had. All:of the Austeds swore that she exhibited her arm to them that night immediately upon reaching the house when telling them of appellant’s assault on her. They swore that the wound on her arm was red and inflamed, and that it was a fresh wound, and about the size and shape of a bite. Miss Leady’s father swore that his daughter returned to his home Monday, which was the first time he had seen her after the assault on the Saturday night before; it having rained all day Sunday,- and she remained at the Austeds’ until Monday, and that she then complained to him that appellant had insulted her and exhibited to him this bite by him on her arm. Appellant himself testified in substance that a. day or two later he went to Miss Leady’s father at his home, tried to get' him, arid through , him, the girl not to prosecute him, and in substance admitted that he had insulted and assaulted- her- on said occasion. Mr. Joiner swore appellant stated to him that he was very sorry he had treated his’daughter like he had, asked his forgiveness therefor, and stated that he would guarantee that' it would never happen again'; that a prosecution of him would be a lot of trouble to both of them; that it would cost both a whole, lot, “I asked him if he had any provocation for doing what he did do,' and he said ■ he had not; that that was just his-besetting. sin.” Appellant swore that he saw Mr. Join-er at the said time and-place, arid among-other things said to him: “Mr. Joiner, that' would be a nice -thing to go out in the country, wouldn’t it, a tale like that, and it would' be a disgrace to the community, and to our families, and to our -fathers and rnothers.”' He further swore that when he learned the girl and her father had turned him in to, the' officers, he immediately left that country —fled-; thrit later, when he was arrested and put- iri the calaboose ‘ at Mart in McLennan-.county, he escaped -therefrom and went to St. Louis, where he was arrested for this offense. The, sheriff of Hamilton county hunt-rid for-him everywhere after the prosecution was begun, and something like a year thereafter -located him in St. Louis and had him-arrested and returned therefrom.

Appellant objected to-the testimony of. rthe Austeds -wherein they ■ testified to what Miss'Leady told them'immediately upon her .reaching- the house after she' had jumped' out" of the buggy--and escaped from appellant), claiming -that it..was riot res gestas, brit’hearsay. Some of the testimony clearly showed ,thdt" the -buggy -was only about 200 yards ,'frrim the Austeds’- 'house at the'- time Miss'iLeády’juiri'ped’therefrom1 arid escaped- from : rippeUant^srirne •' that'- it-' <■ might^’Erive- • beeri-•about twice that distance. It shows without question that Miiss Leady hastened to the house when she jumped out of the buggy and fled from appellant, and got there just as quick as she could, and immediately and spontaneously, while under the greatest excitement, told of appellant’s assault of her, and exhibited her arm where he had bitten her. There can be no question from the authorities that this was res geste and clearly admissible as such, as the lower court correctly held. Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794; Sentell v. State, 34 Tex. Cr. R. 262, 30 S. W. 226; Conger v. State, 63 Tex. Cr. R. 328, 140 S. W. 1112; Sharp v. State, 71 Tex. Cr. R. 637, 160 S. W. 369; Valdez v. State, 71 Tex. Cr. R. 487, 160 S. W. 341; Fuller v. State, 69 Tex. Cr. R. 537, 154 S. W. 1021; White’s An. P. C. § 1058; 2 Vernon’s An. P. C. pp. 613, 614, 615, where a large number of cases are collated; Pilcher v. State, 32 Tex. Cr. R. 557, 25 S. W. 24; 2 Branch’s An. P. C. § 1874, where a large number of cases are collated.

After the officers caught appellant and brought him back a term of court came on at which time this case was to be tried on a certain day. The state had a subpoena issued for Miss Leady, which was served upon her while she was at the depot intending to leave the day the case was set for trial. She did not obey the subpoena, but left and went somewhere in southern Texas, and the case was continued because thereof: Appellant proved by her on his cross-examination of her that she had thus absconded as a -witness at the time the case was to be tried, thus attacking the truthfulness of her testimony against him. ' Thereupon the court, over appellant’s objections, permitted her to testify the reason why she left at the time, which was that Lee Moss, a friend of appellant’s and hers, came to her and told her that Ed Perry, a banker in Hamilton, was backing appellant with all the money he needed, and if she remained in Hamilton county and appeared as a witness against him, Perry and appellant would disgrace her by bringing boys from Waco and McGregor to swear that they had had intercourse with her, and that was the cause of her leaving. The court so explained appellant’s bill on this subject, and further stated that the occasion of her leaving was a part and parcel of the same transaction, but that he explained to the jury that in no event could the statements of Miss Leady be considered as evidence of defendant’s guilt, and instructed them not to consider the same against him. Appellant swore that the evening he was brought back from St. Louis he was out and talked with the boy Lee Moss about this case against him; that he did not authorize him to tell the girl what she says he did, nor know he was going to make that statement to her,- “but if the boy told the girl that she might have believed it.” ■ In our opinion, under the circumstances, .the court was correct in admitting this ■ testimony, as thus limited. ■ .

Appellant has another, bill, complaining that the court permitted the county attorney to testify that two or three days after the assault, when Miss Leady and her father came to him to institute a prosecution against appellant for the assault upon her, he saw a black spot on- prosecutrix’s arm. The court did not permit the witness to testify what Miss Leady said to him caused it. This testimony was admissible. The length of time after the assault went to its weight only and would not make it inadmissible. See the authorities above cited. Neither did the court err in permitting Miss Leady’s father to testify that she complained to him of appellant’s assault ’ upon her the first time she saw him, just as soon as she got home. The court excluded any details of what the girl told her father. Besides, as to this matter, appellant himself admitted to her father the assault by him upon her, as shown ahove.

The appellant, duly requested, but the court refused, his special charge as follows:

“If you believe from the evidence that the defendant Lonnie Stockton used undue familiarity or indecent conduct, with, the person of prosecu-trix Leady Joiner, but that he had no intent to injure her, or cause a sense of shame or other disagreeable emotion of the mind, and- that he had- good reason to believe that the.-advances made to her would not create in her a sense of shame or other disagreeable emotion of the mind, and that they did not in fact do so, you wifi acquit the defendant.”

In his bill to the court’s refusal to give this charge he contends that it was applicable to and demanded by the evidence in this:

• _ “The defendant’s testimony showed that the liberties he took with the prosecutrix were with her consent. The testimony of the prosecutrix did not show that the liberties defendant took with her caused a sense of shame or humiliation. .The court’s charge did not define to the jury to tell them what constituted an aggrayated assault by undue familiarity with the person of a female by a male.”

The court in approving this bill did so with this explanation and qualification:

“The defendant swore that his attempt to fondle the person of prosecutrix was opposed by her, and that his effort to have intercourse with her was refused, rejected and repelled and opposed to the point of her escaping from his buggy and fleeing homeward through the rain and mud in the nighttime. This took question of consent out of the case. However, that portion of main charge has been approved by our Court of Criminal Appeals in cases like this on the aggravated assault feature. The defendant was only convicted of aggravated assault.”

This bill, as the record shows, was prepared, allowed, and filed long after the court adjourned. ■ ■ ■

As stated by the court in his qualification, and as clearly shown by the testimony of the appellant himself quoted' above, his • contention as the reason .why this charge should have been given, “that the liberties he took with the prosecutrix were with her consent,” was not true, but the reverse of this, were the facts, as specifically stated by the court in his qualification and of his reasons why he refused this charge. She did not consent to the liberties he took with her person as appellant himself in substance and effect so testified. Again, the testimony unquestionably established that his assault and the liberties he took with her person by force did cause her a sense of shame and humiliation, as shown by her testimony and the res gestee statements proven by the Austeds. It would not be necessary to show this for either the girl or the Austeds to state specifically that she used the words that it caused her a sense of shame and humiliation. Her whole conduct from - first to last, even as testified to by appellant himself, conclusively shows this.

There was no objection whatever to the court’s charge in any particular. The charge aptly and correctly defined the law as to what was necessary to make the offense •of an assault with intent to rape. This specially requested charge seems to have been requested on that issue. As appellant was found not guilty of that crime, any question about the charge on that subject parsed out,' as has all the time been held by this court. On the other issue of an assault upon the girl the court in his charge told the jury as follows:

“(1) The use of any unlawful violence upon the person of another with intent to injure such other person, whatever be the means or degree of the violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture, showing in itself or by words accompanying it an immediate intention coupled with an ability to commit a battery, is an assault. (2) By the expression ‘coupled with an ability to commit a battery’ is meant that the person making the assault must, at the time, be in such position and within such distance of the person assaulted to enable him to commit a battery on such person by the means used.”

Then follows a correct definition of rape and the- essentials necessary tó be proved in order to constitute an assault with intent to rape. Then .correctly and fully he submitted the issue to the jury for a finding on the, question of the alleged assault with intent to rape, and as to the assault he instructed the jury:

“Keeping in view the foregoing definitions of assault, * * * if you should find from the evidence beyond a reasonable doubt that the defendant made an assault in and upon the person of Miss Leady Joiner, as that term has been defined to you,' but you have a reasonable doubt as to whether he made said assault with the specific intent to rape the said prosecuting witness by force as rape by force has been defined to you, then in that event you will acquit the defendant of an assault with intent to rape and convict him of an aggravated assault and assess his punishment at a fine of not less than $25 nor more than $1,000, or by confinement in the county jail not less than one month nor more than two years, or by both such fine and imprisonment.”

■ Our statute expressly prescribes (article 771, O'. O. P.):

“Where a.prosecution is.for an offense consisting of different degrees', the:jury may find the defendant not guilty of the higher degree, but guilty of any degree inferior to that charged in the indictment.”

The next article prescribes:

“The following offenses include different degrees: * * * (2) Am assault with intent to commit any felony, which includes all assaults of an inferior degree.”

And article 837*, O. O. P., in prescribing for what causes new trials shall be granted “and for no other,” states (sub. 9):

“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.” 1

This court, and the Supreme Court when it had jurisdiction of criminal cases, have uniformly held that in an indictment for an assault with intent to rape is included an aggravated assault in any and every way which such an assault may be committed, and that when the evidence on the trial does not establish the charge of an assault with intent to rape only and exclude an aggravated assault, then it is incumbent upon the trial judge to submit the question of aggravated assault in the general terms in which the trial judge submitted that question in this case. Curry v. State, 4 Tex. App. 574; Brown v. State, 7 Tex. App. 569; Irving v. State, 9 Tex. App. 69; McGee v. State, 21 Tex. App. 670, 2 S. W. 890; Shields v. State, 32 Tex. Cr. R. 498, 23 S. W. 893; Pefferling v. State, 40 Tex. 493; Davis v. State, 20 Tex. App. 302; Peterson v. State, 12 Tex. App. 650; Bittick v. State, 40 Tex. 117; James v. State, 36 Tex. 645; Jones v. State, 21 Tex. App. 351, 17 S. W. 424; Givens v. State, 6 Tex. 344; Gardenheir v. State, 6 Tex. 348; Johnson v. State, 17 Tex. 515; Lacoume v. State, 65 Tex. Cr. R. 148, 143 S. W. 626; Ward v. State, 68 Tex. Cr. R. 154, 151 S. W. 1073.

In addition to all this, the said special charge is not the law applicable in this case, and should not have been given, and the court correctly refused it because it wholly ignored the proof in two particulars: (1) In that appellant by his own testimony as well as that of Miss Leady shows that he committed an aggravated assault upon her in that he more .than once put his hand upon her leg without her consent, as expressly testified to by appellant himself; (2) because the positive, unequivocal testimony of Miss Leady showed that he violently bit her on the arm. The testimony of all the Austeds as to the .res gestas statements positively showed this, and the physical' facts on her arm- demonstrated it. And said special charge told the jury peremptorily to acquit the defendant if his undue familiarity and indecent conduct with her person was with no intent to injure her and cause her a sense of shame or a disagreeable emotion of the mind. Therefore in no event was this charge the law applicable to this case; and the court correctly refused to give it.

The only other question is, he claims the court erred in refusing to give his only other special requested charge, which was as follows:

“Before you can convict defendant of an aggravated assault, as defined in the main charge, you must find that defendant not only used undue familiarity or indecent conduct with the person of prosecutrix, Leady Joiner, but that the same caused a sense of shame or other disagreeable emotion of the mind. And in this connection I charge you that the mere use of indecent and insulting language cannot constitute an aggravated assault by a male upon a female, and if you believe that the disagreeable emotion of the mind of prosecutrix, if any existed, was caused by any language used by defendant to her, and not caused by the fondling of her person, you will acquit him.”

His claim, as shown in his bill, is that this charge was the law applicable to the evidence in thai^ there were only two witnesses testifying to what occurred,. defendant and prosecutrix, stating that the defendant testified that the prosecutrix cursed him, and she, while admitting that she cursed him, also claimed that he cursed her, and that defendant’s testimony was to the effect that she became offended not at what he did, but at something he said. The court in allowing this bill explained and qualified it thus:

“The defendant swore that his attempt to fondle the person of prosecutrix met with her objections and that his advances were refused, rejected, and repelled, until finally the girl escaped from his buggy to be rid of him, and that she walked back to the house she was staying at for the night through the rain and mud. This took the question of her consent out of the case. However, the charge I gave on aggravated assault has been approved in previous cases tried by me where the facts were similar. The defendant was only convicted of aggravated assault, a misdemeanor.”

What we have said about his other requested charge is applicable to this. In no event did the court commit any error in refusing to give this charge under the circumstances of this case.

The judgment will therefore be affirmed.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J. PRENDBRGAST, J.

license: Public Domain

text:
    MIRELES v. STATE.
    (No. 4349.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.
    On Motion for Rehearing, Feb. 28, 1917.)
    1. Weapons <®=>8 — Character or Weapon— “Bowie Knife.”
    A knife in a scabbard with a blade nine inches long and a handle four or five inches long, described as a butcher knife was embraced in the term “bowie knife” as defined by Pen. Code 1911, art. 1027.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 7.
    Eor other definitions, see Words and Phrases, Bowie Knife.]
    2. Weapons <@=>9 — Cabbying Adopt the Person — On One’s Own Premises.
    It is no offense for a man to carry a bowie knife or a pistol about his person on his own premises. ,
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 8.]
    3. Weapons <©=>9 — Cabbying About Person.
    The rule exempting one from liability for carrying arms about his own premises does not extend to exempting him from liability for carrying arms on his person away from his own premises and where he is at work for another person.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 8.}
    On Motion for Rehearing.
    4. Weapons <g=>9 — Carrying Weapons — On Rented Premises.
    The right of one to carry a knife on his own premises extends to carrying a knife in a pasture where he keeps his team and has the right to go to get them, as part of his rented premises.
    [Ed. Note. — Eor other eases, see Weapons, Cent. Dig. § 8.]
    5. Criminal Law <§=>829(4) — Carrying on Person — Trial—Specific Instructions.
    In trial for carrying a bowie knife, where the court charged that the statute provides that, if any person shall unlawfully carry on or about his person any bowie knife, he shall be punished by fine, etc., and then submitted the case to them in another paragraph and told them that, if they believed beyond a reasonable doubt that he did on a certain date have on or about his person a bowie knife, he would be guilty, etc., it was error to refuse accused’s special charge that, if when accused carried the knife he was on the premises of another person, naming him, and that he was at the time living on such premises, then he had the right to carry it there, where on this point the court had merely charged the jury that it was not unlawful for any person to carry a bowie knife upon his own property or upon property which he has rented or leased, and the state had made it a point to prove that accused had the knife on his person while on the premises specifically described in the requested charge; the general charge not being sufficient under the circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]
    6. Criminal Law <©=>829(4) — Carrying on Person — Trial—Specific Instructions.
    In such case a paragraph of the instruction that, if defendant was on premises he had rented when arrested, and carried off the premises, he would not be unlawfully carrying a bowie knife, did not warrant refusal of his requested charge that, if accused had been arrested and forced to g'O from his rented premises along the public road and to a place where the deputy sheriff searched him and found the knife on him, it would not be unlawful for him to carry the knife along the road and to the place where searched, off his premises forcibly while under arrest; the instruction given not being sufficiently specific.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011.}
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Isidor Mireles was convicted of unlawfully carrying on his person a bowie knife, and appeals.
    Reversed and remanded.
    P. E. Campbell, of Seguin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully carrying on his person a bowie knife and assessed the lowest punishment. It is unnecessary to take up all of appellant’s assigned errors.

He contended that the knife with which he is charged with unlawfully carrying was not a bowie knife, hut was a butcher knife for cutting meat, bread, etc. We find with the record a certain knife in a scab-hard, the blade of which must be some nine inches in length with a handle four or five inches long, but it is in no way identified as the knife and scabbard which was found on appellant. Our statute (article 1027, P. C.) prescribes that a bowie knife means any knife intended to be worn upon the person which is capable of inflicting death, and not commonly known as a' pocket knife. The knife described by the witnesses, and certainly the knife with the record if it was the knife carried by appellant on his person, would certainly be embraced in the statutory definition of a bowie knife. In Hernandez v. State, 32 Tex. Cr. R. 272, 22 S. W. 972, where a party was indicted for an assault with intent to murder with a bowie knife, and the proof showed that the knife with which the offense in that instance was committed was a butcher knife, it was held to be in effect the same thing in the view of such statute. The testimony by appellant himself in this case shows that he carried this knife in a scabbard on his person a great deal in and about his own premises.

The law is that it is no offense for a man to carry such arms as this, or a pistol, about his person on his own premises. In view of the testimony, showing he so carried it on premises rented by him, the court should have so instructed the jury in this instance.

The testimony further showed, it seems without contradiction, that the fact that appellant was claimed to be unlawfully carrying said knife on his person was communicated to the sheriff, and the sheriff instructed one of the witnesses in effect to arrest the appellant and take him along a public road off of his own premises to the place of another party to which the officer was going. This witness thereupon arrested appellant on the premises of which he was the tenant, and while under this arrest forced him1 to leave his own premises, when he had this knife on his person in a scabbard, go along a public road, and to the place designated by the officer off of his premises. Hater the officer arrived there, searched the appellant, and found such a knife on his person in a scabbard stuck in his pants. The state was particular to make all this probf, not only by the officer, but by other witnesses as well, and it seems the state, because of the appellant’s carrying this knife on this occasion, sought his conviction. The appellant requested a charge to the effect that, if he had been arrested as stated and forced to go from his rented premises wherein he lived along the public road and to the other place designated by the sheriff, that that would not be an unlawful carrying of said knife under the law. This charge was refused. It clearly presents error. The charge should have been given. "

The testimony on another phase of the case, though disputed, showed in effect that appellant went from Ms own rented premises into the field of another party with this knife on his person, and there he and other persons had a fuss or fight, and that he had this knife on this occasion. The testimony is disputed as to whether or not the appellant was picking cotton under the employment of the owner of that field at the time. I-Ie claims, however, that he had the right to carry arms on his person off of his place to where he was at work for another person. This is not the law. If that were true, practically every person in Texas could lawfully carry prohibited arms on or a|)out his person.

For the errors above pointed out, the judgment is reversed, and the cause remanded.

MORROW, J., absent.

On Motion for Rehearing.

PRENDBRGAST, J.

Perhaps the court was not explicit enough in its original opinion herein, which occasions the criticism thereof by the state in its motion for rehearing. We will undertake to make the matter somewhat clearer.

The state introduced the following witnesses: First, Mr. Fluitt, deputy sheriff, who testified that he saw appellant in Mr. Howell’s yard on September 14, 1916; that he searched him, and then and there found the knife in a scabbard on his person in his pants. Next, Mr. Roberts, who testified that he was present when the deputy sheriff searched the person of the appellant at Mr. Howell’s house and saw him take the knife off of his person. Next, Mr. Beicker, who testified on this point precisely as Mr. Roberts did. Next, Mr. Naro, who testified that on September 13th or 14th he was picking cotton for Mr. Howell in Howell’s field; that trouble arose between the appellant and himself, when appellant knocked him down and had a knife in his hand; that he had only one eye, and as appellant struck Mm in that eye he could not identify the said knife as the knife appellant had on that occasion. Herrera next testified that he was present at said cotton picking when said difficulty arose between appellant and Naro; that he then saw the appellant with the said knife; he had'it in his hand during the fight.

On cross-examination of Mr. Fluitt the appellant proved by him that he had a capias for the arrest of the appellant and his son, doubtless because of the said fight, and that he phoned to Mr. Roberts to arrest appellant and his son and take them to Mr. Howell’s, which place he would’ reach later, and that Mr. Roberts did take the appellant to Mr. Howell’s on the occasion when he searched and found said knife on him. By cross-examination of Mr. Roberts the áppellant proved that he rented 40 acres of tillable land from' Boberts that year, and that he lived on Roberts’ farm in one of his rent houses, and that he had the right to place his work team in Roberts’ pasture, which he did all the year; that on the morning of September 14th, when Fluitt phoned him to arrest appellant and his son and take them to Mr. Howell’s, he did so; that he found the appellant on that occasion in his pasture hunting for his mules to haul cotton to the gin; that he drew his pistol on him, arrested him, and took him along the public road to Mr. Howell’s house, where Fluitt searched him and found the knife.

The appellant him'self testified to living on Mr. Roberts’ place as his tenant; that he carried that knife a great deal when he was on the place where he lived, for the purpose of cutting burrs and grass for his team, and that while out in the pasture hunting for his mules Mr. Roberts came up on him, threw his pistol down on him, and took him to Mr. Howell’s. He denied that he carried the knife to Mr. Howell’s field on the occasion when said fight occurred between him and Naro.

It will be thus seen that appellant was shown to have carried said knife on his person at three separate and distinct times and places:- (1) On the place he had rented from Mr. Roberts and in the pasture where he kept his mules; (2) when he was arrested and forcibly taken off of Mr. Roberts’ place, along the public road over to Mr. Howell’s, where he was searched and this knife found upon him; and (3) in Mr. Howell’s field on the occasion when said fight occurred. Clearly, under the law and evidence, he was not guilty of violating the law in carrying said knife on either the forty acres of tillable land that he had rented from Mr. Roberts nor in Mr. Roberts’ pasture, where he kept his team, and had the right to go to get them as a part of his rented premises, nor when he was carried along the public road and taken to Mr. Howell’s, where he was searched and this knife found upon him. If the jury should believe the state’s testimony that he carried the pistol in Mr. Howell’s field on a previous occasion, at which time he had the fight with Naro, then he would be guilty of unlawfully earying it on that particular occasion only so far as the evidence in this case develops.

The court in charging the jury told them correctly that the statute provides that, if any person shall unlawfully carry ón or about his person any bowie knife, he shall be punished by fine, etc., then submitted the case to them in another paragraph and told them that, if they believed from the- evidence beyond a reasonable doubt that he did on or about September 14th have on or about his person a bowie knife, he would be guilty, and to so find and assess his punishment, etc. In a separate paragraph he did tell the jury:

“That it is not unlawful for a person to carry a bowie knife upon his own property or on property which he has rented or leased.”

On this point appellant requested a special charge, which the court refused, to the effect that if they believed that the appellant carried the knife, but that at the time he carried it he was on the premises of Mr. Roberts, and that he was at the time iiving on Mr. Roberts’ premises, then he had the right to carry it there. As the state had made it a point to prove that appellant had the knife on his person while on Mr. Roberts’ place, his rented premises, we think the court should have specifically instructed the jury as requested by the appellant, and that the said general charge just above quoted was not sufficient under the circumstances.

In another separate and distinct paragraph he told the jury:

“That, if defendant was on premises which 'he had rented when arrested and carried off of the premises, in that instance he would not be unlawfully carrying a bowie knife.”

To us this would limit his right to carry it on his rented premises only. As shown above on this point, appellant requested, as stated in the original opinion, a charge to the effect that if he had been arrested and forced to go from his rented premises along the public road and to Mr. I-Iowell’s, where the deputy sheriff searched him and found the knife upon him, it would not be unlawful for him to carry the knife along the road and to Howell’s, off of his premises forcibly while under arrest. We think the separate paragraph of the court’s charge last above quoted was not sufficient on this point, and, as we held in the original opinion, the jury should have been specifically told that appellant was guilty of no offense by having the knife upon his person when he was forced to go from Mr. Roberts’ premises along the public road and to Mr. Howell's.

The motion is overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    PECHT v. STATE.
    (No. 4233.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    State’s Rehearing Denied Feb. 28, 1917.)
    1. Criminal Law <@==>364(1) — Evidence—Res Gestas.
    In a prosecution for violating the pistol law, evidence as to the details of the difficulty in which the state claimed the pistol was exhibited by defendant was admissible as part of the res gestee.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 808-812.]
    2. Criminal Law <©=>804(3) — Trial — In-' structions — Necessity of Writing. >
    A verbal charge on objection to the argu-. ment of the county attorney to disregard the' portion of the argument complained of is viola--tive of Vernon’s Ann. Code, Cr. Proc. 1916, art. 750, prohibiting verbal charges in misdemeanor cases except by consent of the parties.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1951.]
    3. Criminad Law <§^1171(6) — TbIAD—Argument OE COUNSEI^EVIDENCE.
    The statement by the county attorney in argument that the reputation of a witness for truth and veracity is good, and that some of the jurors know that it is good, in the absence of evidence as to his reputation, is improper and prejudicial, where the witness referred to is the only unimpeached witness for the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127.]
    Prendergast, P. J., dissenting.
    Appeal from Williamson County Court; Richard Critz, Judge.
    B. F. Pecht was convicted of violating the pistol law, and appeals.
    Reversed and remanded.
    Melasky & Moody, of Taylor, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is an appeal from a conviction for violating the pistol law.

The evidence, briefly stated, is that appellant left his home, a few miles from Taylor, in Williamson county, expecting to go to Ft. Worth and thence west to secure work in grain fields. After reaching Taylor he went out a few miles to bid some friends farewell. Returning to Taylor, he stopped at a little store to get something to eat. While there the witnesses Tom Avery and Jim Kuyken-dall entered the store. Avery and appellant engaged in a conversation which seems to have involved some ladies. This conversation was not heard by anybody except Avery and appellant. The fact that the conversation was carried on was known, but the language employed was not heard by any one, except a remark by appellant that Avery was a damn liar. That brought up a difficulty. Among other things, the witness Kuykendall threw a soda water bottle at appellant, and then drew his knife, telling Avery to strike or beat appellant with an axe handle. Appellant cursed Kuykendall, and invited him outside for a fight. The owner of the store testified that appellant came to the store first, the other two witnesses coming in subsequently. While there are some discrepancies in their testimony as to the difficulty, it is not of a very material character. Kuy-kendall and Avery testified to seeing appellant pull what they say was a pistol. They saw the butt of a pistol, cylinder, and part of the barrel. The owner of the store testified he did not see any pistol. This pistol was drawn after Kuykendall threw the bottle, drew his knife, and told Avery to beat appellant with an axe handle. Appellant testified he had no pistol then, and had not owned one for years. Avery, when used as a witness, was impeached by quite a number of witnesses. This testimony left the ease in this attitude. Avery and Kuykendall testified to seeing the pistol; the storekeeper testified he did not see it. Appellant testified he did not have a pistol, and had not owned or carried one for years. Avery was impeached; Kuykendall was not, and there was no attempt to impeach him, so far as this record is concerned. Appellant was an interested witness, being the defendant in the case. Of course, his interest in the case would be considered by the jury from that viewpoint. Kuykendall testified he had nothing against the defendant, but was not friendly with him. He did say, however, that he had stated that he believed defendant ought to be put in jail on account of this matter, and then seemed to be of that opinion. This is the case substantially.

There are no exceptions to the court’s charge, and therefore nothing to review from that viewpoint. Appellant interposed objection to the testimony of the witnesses as to the details of the difficulty at the store in which the state claimed the pistol was exhibited. We are of opinion that this testimony was admissible. It would be difficult to separate the pistol from the difficulty; it was all part of the res gestae, occurring at the same time, and, if he had the pistol, explanatory of why he drew it. The court charged the jury with reference to his right to have the pistol if any danger to him was threatening and imminent, so that he could not have the parties arrested. Of course, if he had a right to have the pistol at the time, there was no time for arresting the parties who were attacking him. It all occurred evidently in a very brief space of time, and there were no officers to whom he could appeal. The court also charged with reference to appellant’s right to carry a pistol as a traveler, curtailing that with the proposition that if he deflected from his route and went to the country and engaged in other matters, etc., he would not be entitled to the defense of being a traveler. As before stated, no exceptions were properly reserved, and therefore those matters will not be reviewed. We think the evidence with regard to the transaction and what brought up the trouble and caused the exhibition of the pistol was admissible.

There is a bill of exceptions, however, which we think presents reversible error. The county attorney in his speech to the jury said:

“The defendant has sought to impeach the reputation of one of the witnesses, but there stands before you a witness whose reputation for truth and veracity has not been impeached. He also testifies that the defendant had a pistol. This witness is Jim Kuykendall. Jim Kuyken-dall bears a good reputation for truth and veracity in the community in which he resides. He is honest, he is truthful, and will not lie; he is exacting; he wants what is his own, but he will not lie. No man has a better reputation for truth and veracity than Jim Kuykendall, and the young attorneys for the defendant will. not deny this for all of Williamson county. Some of you jurymen know this man. You know his reputation for truth and veracity. You know his reputation for truth and veracity. You know that it is good. You know that what I state is the truth, and you know that Jim Kuykendall would not lie.”

Objection was interposed and sustained by the court, the court remarking at the time to the jury that they would disregard this part of the county attorney’s argument. The appellant requested, further, that the jury be instructed in regard to this matter. It is recited in the bill:

“In view of the fact that the witness Kuyken-dall’s reputation for truth and veracity is not in testimony or evidence, and in view of the fact that the county attorney has just reminded the jury that there are some of them personally acquainted with the witness and know his reputation for truth and veracity, and know that he will not tell a lie, the defendant moves and asks the court to instruct the jury that in determining the weight and credit to be given the testimony of the witness Kuykendall, they will not consider any private knowledge that they may have of this witness’ truthfulness or of his reputation for truth and veracity, and that in considering the weight and credit to be given his testimony they will consider no private knowledge that they may have of his truthfulness, but that they will consider in determining the issue the facts that he swore to and his demeanor while on the witness stand alone.
“Court: Well, a juror could hardly lay that aside.”

The court qualifies this bill by stating that when the objection was made to the argument he promptly sustained it, and instructed the jury to disregard all of this argument, and only consider testimony that had been admitted before them by the court, and not to consider the argument used in the bill for any purpose. Then the court states that appellant’s attorney asked the instruction practically as above set out, and that the court replied in the presence of the jury:

“The instruction will he refused; the jury has been instructed to disregard the argument entirely, and only consider testimony admitted before them by the court.”

This is a misdemeanor case. The court’s charge or instruction to the jury, if it be considered as such, was verbal and not in writing. The statute prohibits verbal charges given the jury in misdemeanor cases except by consent of the parties. So we may consider the court’s verbal instruction as not in accordance with the statute. The statute has been held to be mandatory.. Quite a number of decisions will be found collated in Vernon’s Annotated Criminal Procedure under article 740, on page 500. There are a greht many eases there cited sustaining the statement that this statutory provision is mandatory. The statute reads as follows:

“No verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties.”

Another article of the Code of Criminal Procedure with reference to charges requires that all charges shall be in writing, submitting the law of the case. The jury was only partially instructed as to the law regarding the illegal argument. That the argument of the county attorney is without warrant or fact will not be questioned under this record. He not only testified himself in his speech, without being sworn and taking the witness stand, as to the high character and standing of the witness Kuykendall for 'truth and veracity, but he made the further statement that the jurors knew all this, and yet none of them were placed on the stand; in fact, Kuykendall’s testimony was not attacked in regard to his veracity. This particular argument was| more than usually harmful. Of the four witnesses who testified, appellant denied having the pistol, the storekeeper did not see, it, Avery was impeached, and Kuykendall alone remained un-impeaehed. So of all the witnesses who testified against him Kuykendall was the most important and dangerous witness, because of the fact he was not impeached. The appellant did not offer any testimony to impeach Kuykendall. While it is true he undertook to prove by his own testimony while testifying in his own behalf that he had no pistol, this was not an impeachment of Kuykendall, but a conflict in their testimony as to the fact. Here stood defendant, witness in. his own case, with whatever impediment to his case this might have been. A conviction meant to him punishment. Kuykendall testified to seeing the pistol, and was unimpeached. So he stood as the only unimpeached witness in the case, unless we include the defendant, who knew or could testify differently with reference to the fact of the pistol being on him; the county attorney lending his official status to the case, testifying before the jury unsworn, without taking the stand as a witness, and calling the jury’s attention to the fact they' knew Kuykendall was an unimpeachable witness. Tbis may have caused the jury to find the verdict they did. If appellant told the truth, he had no pistol. If Kuykendall told the truth, he did have a pistol. It was a sharp issue and to the point. The county attorney’s' statements may have turned the scale. It was material and very material on this phase of the case. It may have determined the jury in their belief as to the credibility of the witness and weight to he given the testimony.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J.

(dissenting). The statute requiring charges to be in writing means, and has always been held' to mean, the main charge in the submission of the case to the jury for a finding, not some mere side issue or incidental matter arising during the' trial. Moreover, appellant in no way, either in the court below, or this, excepted or complained that the court did not put in writing what he told the jury when he objected to the county attorney’s speech, as follows:

“When the objection was made to the argument used, the ■ court promptly sustained the same and instructed the jury; to disregard all of this argument and only consider testimony that had been admitted before them by the court, and not to consider the argument used in the bill for any purpose.”

What be then and now complains of was that the court did not give a further charge. I think the further charge was clearly covered in what the court had already given. Heretofore this court has always held, in such incidental matters, or side issues, as the question of said argument was, it is incumbent on the accused to ask in writing his charge, and, if he does not do so, no reversible error is shown. In no event did the argument of the county attorney after the instruction by the judge present reversible error.

The case should be affirmed, not reversed.
      <g=3Tor other cases see same topic and KEY-NUMBER }n all Key-Numbered Digests and Indexes .

      cg=s>For otter cases see same tapie and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    LIMON v. STATE.
    (No. 4360.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1917.)
    1. Criminal Law <§=>1095 — Appeal — Bills op Exception — Time for Piling.
    Under the statute allowing, when the court under the law can continue longer than 8 weeks, only 30 days to file bills of exception without an order, and authorizing the court by order duly entered to grant a longer time, bills not filed within the 30 days allowed by law or within the additional time allowed by the court must be stricken and cannot be considered.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2847.]
    2. Criminal Law <@=^1144(18)-Appea3>-Re-view — Presumptions — Pacts not Shown ,by the Record — New Trial.
    Where the record does not show what the evidence was which the trial court heard and on which it denied accused’s motion for new ti-ial based on alleged misconduct of the jury, it will be presumed that the evidence was amply sufficient to sustain the court’s action.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Mariano Limón was convicted of manslaughter and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Upon a trial under an indictment charging murder appellant was convicted of manslaughter.

Under the law, and as a matter of fact, the Court in which the conviction was had continued, more than eight weeks. Appellant’s motion for a new trial was overruled, he was duly sentenced, and he gave notice of appeal on Oct. 7, 1916, all of which was then and there entered in the minutes of the court. In the order overruling his motion for a new trial the judgment, among other things, is that appellant “asked for and was granted sixty (60) days from and after this day, Oct. 7, 1916, in which to have approved and filed his bills of exception.” This is the only order in the record pertaining to when the bills of exception were authorized to be filed.

The statute allows only 30 days after these proceedings when the court under the law can continue longer than 8 weeks, to file bills of exceptions without an order. But authorizes the court by order duly entered to grant a longer time. In this instance, as only 60 days were allowed, and the bills were not filed until long after the expiration of that time, the Assistant Attorney General’s motion to strike out the bills, and for this court not to consider them, must be, and is therefore sustained. The statute, as stated, and the many decisions of this court thereunder have been uniform to the effect that when the bills are not filed within the 30 days allowed by law, or within the additional time allowed by the judgment of the court, they must be struck out, and cannot be considered.

Among other grounds in his motion for a new trial appellant alleged misconduct of the jury. The state duly contested this. The record shows that the court heard testimony on it, and found against him. The record in no way shows what this evidence was which the court heard and acted upon on this issue. Therefore we must conclude, and do, that the evidence was amply sufficient to sustain the action of the court. This has also all the time been held by this court. See Guerra v. State, 189 S. W. 953, where some of the cases are collated.

There is no other question we can review in the absence of bills of exception. The judgment must therefore be, and is, affirmed.


text:
    MARSHBANKS v. STATE.
    (No. 4337.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.
    Rehearing Denied Feb. 28, 1917.)
    1. Homicide <®=j39 — Manslaughter — Ade- ' quate Cause.
    To constitute manslaughter under Pen. Code 1911, arts. 1128, 1137, there must be adequate cause producing such passion as to render mind incapable of cool reflection.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 59-61.]
    2. Homicide <S==>309(5) — Instructions—Manslaughter.
    Where question raised by evidence is that of either murder or perfect self-defense, it is not error to fail to instruct on subject of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 654.]
    3. Homicide <@^>216 — Dying Declaration— Proper1 Predicate.
    In prosecution for murder, held, that proper predicate to introduction of dying declarations that decedent was then sane, conscious of approaching death, and without hope of recovery was shown, and hence that court could have so held without submitting question to jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 457.]

      4. Homicide ©=^218 — Dying Declaration — Practice.
    Practice of submitting' to jury, Question of whether proper predicate was laid for introduction of dying declaration, after proper instructions as to requisites, and that these must be proven beyond reasonable doubt, held, proper.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 458, 459.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    A. Marshbanks was convicted of murder, and appeals.
    Affirmed.
    L. P. Bonner and John A. Storey, both of Vernon, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at ten years in the penitentiary.

We have carefully read and studied the whole of the testimony. We see no necessity of now reciting it. The testimony by the state, and as a whole, clearly raised the issue of murder, which the court submitted and the jury found him guilty of. His self-defense was his defense. His testimony raised that issue, which was fully submitted by the court to the jury in a correct charge. His testimony, if believed, would probably have made self-defense. However, that of the state disproved that the killing by appellant was in self-defense.

Appellant complains that the court erred in not submitting manslaughter. We have carefully considered all the testimony with reference to this issue, and have concluded that the testimony did not raise manslaughter, and that therefore the court did not err in not submitting that question.

Our statutes on the subject of manslaughter are clearly and distinctly to the effect that, in order to constitute manslaughter, there must be adequate cause, and that that cause must have produced such degree of passion as to render the mind incapable of cool reflection in order to reduce an unlawful killing from murder to manslaughter. Our decisions are to' the same effect.

In Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 546, this court, through Judge Davidson, said:

“It may be laid down as an uneontroverted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.”

This court, through Presiding Judge White, in McKinney v. State, 8 Tex. App. 626, said:

“A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such .killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, art. 1137. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (Penal Code, art. 1131), and manslaughter cannot be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause (Penal Code, art. 1128).”

See, also, Wilson v. State, 71 Tex. Cr. R. 403, 160 S. W. 83; Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670; Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304; Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983. A great many other decisions to the same effect could be collated, but we deem it unnecessary.

A careful study of the testimony has convinced us that there was no adequate cause in this case, even if the testimony would justify a conclusion of any sudden passion, which is doubtful, in order to raise the issue of manslaughter and require the court to submit such an issue.

In a great many decisions this court has uniformly held that, if the case is either murder or perfect self-defense, it is not error to fail to charge on manslaughter. 2 Branch’s Ann. P. C. § 2014, where he collates a large number of decisions. We think the testimony in this case presented those two issues alone — murder on the state’s side, and perfect self-defense for the appellant according to his testimony alone.

Appellant has two bills which show that he objected to the testimony of two witnesses wherein they testified to dying declarations of the deceased. His objections along this score were that no sufficient predicate had been laid to make such declarations dying declarations, that it was not shown that he was sane, conscious of approaching death, and had no hope of recovery, and that the declarations were in reply to questions propounded to him. These were his objections, not verified by the court as facts. Upon a consideration of the testimony, we think the proper predicate was laid, and that the court could, without submitting the question to the jury, properly have so held, but it seems the court, instead of deciding the question himself, submitted it to the jury, and in effect instructed them of all the requisites that the state had to prove to make the testimony admissible as dying declarations, and that they could not consider the said proposed testimony along that line unless the jury believed beyond a reasonable doubt all of the said requisites had been shown by the testimony. This practice has been approved by this court. 2 Branch’s Ann. P. C. § 1870; Taylor v. State, 38 Tex. Cr. R. 567, 43 S. W. 1019; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80; Jackson v. State, 55 Tex. Cr. R. 84, 115 S. W. 262, 131 Am. St. Rep. 792; Hunter v. State, 59 Tex. Cr. R. 454, 129 S. W. 125; Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 277.

The court correctly submitted every issue raised in a proper and apt charge. There is no necessity for further discussion of any of appellant’s claimed errors.

The judgment will be affirmed.

MORROW, J., absent.
      igsaFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.

      <§z=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WINDHAM v. STATE.
    (No. 4363.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1917.)
    Husband and Wife &wkey;>313 — Wife Desertion — Elements of Offense.
    Under Vernon’s Ann. Pen. Code 1916, art. 640a, to prove the offense of wife desertion as therein defined, the state must show that accused, not only willfully and without justification deserted his wife and refused to support her, but must also show that she was in destitute and necessitous circumstances.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110.]
    Appeal from Nacogdoches County Court; Jno. F. Perritte, Judge.
    Willis Windham was convicted of wife desertion under Vernon’s Ann. Pen. Code 1916, art. 640a, and he appeals.
    Reversed and remanded.
    Harris & Harris, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted under article 640a, Vernon’s Ann. P. 0., for willful desertion, etc., of his wife without justification and failure to support and maintain her; she being in destitute or necessitous circumstances.

Appellant has assigned several matters which he claims were errors against him on the trial. One of them presents reversible error, which, is that the evidence was insufficient to sustain the conviction. We have carefully read the evidence. Without specifically so holding, in view of another trial, the evidence may be sufficient to show a willful desertion of her, and a' refusal or failure to support and maintain her, but the evidence, we think, is wholly lacking to prove that she was in destitute or necessitous circumstances. Under this statute he must not only wilh fully and without justification desert his wife and neglect or refuse to support and maintain her, but the state must go further and prove that she was in destitute or necessitous circumstances as well. As the evidence, in our opinion, fails to show that she was in destitute or necessitous circumstances, the conviction cannot be sustained.

The judgment is reversed, and the cause remanded.