text:
    RHEA v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Criminal Law (§ 878) — Yerdict— Construction.
    - Where one of the counts submitted ■ attempted to charge a violation of the rules and regulations of the live stock sanitary commission, while the others charged violations of Pen. Code 1911, art. 1283, relative to permitting cattle affected with contagious and infectious diseases to run at large, or with other animals not so affected, and the verdict found accused guilty of “breaking the laws of the live stock sanitary commission,” the verdict could not, for the purpose of upholding a conviction, be applied to the counts charging a violation of article 1283, since, while a verdict general in its terms may be applied to any count submitted, a verdict.which makes a specific finding as to the count under which accused is found guilty cannot be so applied.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dee. Dig. § 878.]
    2. Animals (§ 36) — Contagious and Infectious Diseases — Criminal Prosecutions— Information.
    An information, charging that accused, after cattle owned by him had been duly quarantined by an inspector for the live stock sanitary commission, and after the inspector had ordered him to confine the cattle, which were affected with a contagious and infectious disease, and not to remove or permit them to be removed from the premises where they then were, knowingly and unlawfully drove and moved them and permitted them to go from such premises on other premises, in violation of the order and regulation of the inspector, did not charge an offense, since, while the law authorizes the commission to establish rules and regulations, to establish quarantine, etc., it does riot authorize an inspector to do so, and the information did not charge a violation of any rule or regulation of the commission, but merely a/violation of the order of the inspector.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 95, 96; Dec. Dig. § 36.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    S. S. Rhea was convicted of crime, and he appeals.
    Reversed and remanded.
    Mathes & Williams, of Plainview, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted under an information containing four counts.

The court submitted three counts. The verdict of the jury finds appellant guilty under the fourth count in the information, which reads; “(4) And the said S. S. Rhea did then and there unlawfully and knowingly after domestic animals, to wit, cattle, then and there owned by him and in his possession and on his premises, had been duly quarantined by I. E. Barr, inspector for the live stock sanitary commission of the state of Texas, and after the said I. E. Barr had ordered the said S. S. Rhea to confine said cattle, which were then and there quarantined by him, the said I. E. Barr, and ordered by the said I. E. Barr to confine sai'd cattle, which were then and there affected with the scabies, a contagious and infectious disease, and after the said I. E. Barr had ordered the said S. S. Rhea not to remove or permit said cattle so diseased to be removed from the said premises of the said S. S. Rhea, the place where the cattle were then and there situated and located, drive and move said cattle from said premises, and permit said cattle to go from said premises onto other premises, in violation of said order and regulation of the said I. E. Barr, aforesaid, and against the laws of this state in such cases provided, and against the peace and dignity of the state.” Where a verdict is general in its terms, it is true it may be applied to any count in the information submitted by the court; but such is not the rule where the verdict itself makes a specific finding as to the count under which it finds the defendant guilty. The verdict in this case reads: “We,' the jury in the case of the State v. S. S. Rhea, do hereby find him guilty of breaking the laws of the live stock sanitary commission, as charged in the information, and fine the said defendant the sum of $100.”

Counts i and 2 submitted by the court do not charge a violation of the rules and regulations of the live stock sanitary commission as promulgated by the proclamations of Governors Colquitt, Campbell, and Lan-ham, but charge a violation of that portion of article 1283 which prohibits one permitting cattle affected with contagious and infectious disease from running at large, and keeping animals known to be affected with contagious and infectious disease with other animals not so affected, and if appellant had been convicted under either of said counts the conviction should be upheld; and if by any construction the verdict could be applied to either of said counts then the verdict should be upheld. But the jury, having specifically stated that they found appellant guilty of “breaking the laws of the live stock sanitary commission,” and the 'first two counts not charging a violation of these rules and regulations, we are of the opinion that it must be applied to that count in the indictment in which it is sought to charge that offense — the fourth or last count here-inbefore copied.

And the question arises, Does this count charge an offense! In the count it is alleged that I. E. Barr, 'inspector for the live stock commission, had quarantined the cattle of appellant on account of their being infected by contagious and infectious disease. The law authorizes the commission to establish rules and regulations, establish quarantine, etc.; but it does not authorize an inspector to do so, and as the count contains no allegation that the live stock sanitary commission had passed any regulation in regard thereto, that the commission had declared any quarantine of the stock, or the commission had done any other act, we are inclined to think this count charges no offense against the law. The proclamations of Governors Colquitt, Campbell, and Lanham, promulgating the rules and regulations of the live stock sanitary commission, all contain a clause in regard to scabies, cattle mange, or itch, and declare it shall be an offense to ship, drive, transport, or move such cattle from or out of the pasture in which they are situate; but the count does not allege that the act was done in 'violation of this regulation of the commission, but alleges that it was done in violation of the order of the said I. E. Barr. This fourth count in the information being fatally defective, and the verdict showing that he was adjudged guilty thereunder, the case must be reversed and remanded.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Indictment and Information (§ 43) — Filing — Nunc Peo Tunc.
    On motion in arrest it was urged that the information did not charge that the crime was committed before presenting the information. The information, as well as the complaint, sworn to on October 2d, charged the offense to have been committed on September 28th. The information bore no file mark, but it was shown to have been in fact filed on the same day as the complaint. Held, that the court properly ordered the information to be filed. nunc pro tunc as of October 2d.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 154; Dee. Dig. § 43.*] .
    2. Indictment and Information (§ 133*) — Defects — Remedy.
    The defect in an information bearing no file mark, and not specifically charging that the offense was committed before presentation, cannot be taken advantage of by motion in arrest, but only by motion to quash.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. § 133.*]
    3. Cbiminal Law (§ 1099*) — Appeal—Statement oe Facts — Time fob Filing.
    Where defendant was convicted at a term of the county court which adjourned January 4th, his statement of facts filed February 3d was too late; the 30-day time for filing statements of facts not applying to the county court, but where an order of court allows any time after adjournment in which to file a statement of facts the limit of such time is 20 days.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Anderson County Court; Adam Cone, Judge.
    Roy Hall was convicted of violating the pistol- law, and he appeals.
    Affirmed.
    J. E. Rose and Jno. R. Moore, both of Palestine, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of violating the pistol law.

Motion was made in arrest of judgment, because the information does not specifically allege that the offense had been committed anterior to the presentment of the information; that it does not use the word “anterior,” or its equivalent, “heretofore.” The information alleges the offense to have been committed on 28th of September, 1912. The complaint alleges the same date. The complaint was sworn to on the 2d day of October, 1912. The information bore no file mark, but, upon motion in arrest of judgment, the facts show with reasonable certainty that it was filed the same day on which the complaint was filed, to wit, October 2d.

The court ordered that the information be filed nunc pro tune as of October 2d. The case was tried during the month of October. The court had the authority to order the filing nunc pro tune.

Further replying to this motion in arrest of judgment, it will be noticed under all the decisions that this matter cannot be taken advantage of by motion in arrest of judgment; that is, with reference to the filing. These matters must come on motion to quash. See Branch’s Criminal Law, § 888. We are of opinion that, in reference to these matters, there is no merit, and the law is against appellant’s contention.

It is also urged that the evidence is not sufficient to support the conviction. If the facts could be considered, there is substantial merit in this contention; but we are not authorized to consider the statement of facts because it was filed too late. Court adjourned on January 4, 1913, and the statement of facts was not filed until February 3, 1913. Under the law applicable to filing statement of facts in county court the 30-day time does not apply. Several decisions have recently so held. We cannot therefore review the evidence. It may be further stated there is no order in the record entered by the court allowing any time after adjournment of court in which to file statement of facts. It seems, under the statute, that if an order was entered, the limit would be 20 days1 after the adjournment of court It may be also stated, in this connection, that there is no showing made as to why the statement of facts was not filed in accordance with the statute.

As the record is presented to this court, it is considered that the judgment should be affirmed, and it is, accordingly, so ordered.


author: HARPER, J.

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Cbiminal Law (§ 429) — Evidence — Admissibility.
    Rev. Civ. St. 1911, art. 1748, authorizes clerks of the county court to appoint deputies, and requires such deputation to be recorded in the office of the clerk and deposited with the clerk of the district court; while articles 3687-3713 authorize such record, and copies thereof, to be introduced in evidence. Article 2287 declares that each justice of the peace shall be ex officio notary public; articles 9-14 authorizing such officials to administer oaths and take affidavits. Held1 that, where a county clerk testified that he had appointed another as deputy, but that the deputation had been mislaid, a record of such deputation, which was acknowledged before a justice of the peace, is admissible in evidence. ’
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. § 429.]
    2. Perjuby (§ 29) — Pbosecution—Evidence.
    Where an indictment for perjury averred that accused falsely testified on the trial of her husband that he did not strike her with a stick at a time named, evidence that she did so testify is admissible, but not evidence as to other matters occurring in the trial of the husband.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§-97-106; Dee. Dig. § 29.]
    3. Cbiminal Law (§ 1153) — Appeal—Separation of Witnesses — Discretion of Court.
    In the absence of anything showing an abuse of discretion, the refusal of the trial court to put some of the prosecuting witnesses under the rule will not be held erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153.]
    4. Criminal Law (§ 1119) — Appeai>-Bill of Exceptions.
    A bill of exceptions complaining of the refusal of the trial court to put some of the prosecuting witnesses under the rule presents no error, where it does not show what such witnesses testified to.
    [Ed. Note. — Bor other cases, see Criminal Law, Cent.Dig. §§ 2927-2930; Doc.Dig. § 1119.]
    5. Criminal Law (§ 412) — Evidence—Declarations.
    Where defendant was accused of falsely testifying on the trial of her husband that he did not strike her at a given, time, evidence as to declarations by accused upon being examined by a physician, and of her statements to the county judge, tending, to .show that she was beaten, is admissible to' show that she falsely •testified.
    , [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.]
    6. Indictment and Information (§ 81) — Validity — Name.
    " An indictment, which named accused in numerous places, is not invalid because in one place the wrong surname was used;. it appearing that that portion could he disregarded as surplusage, and that in all .other respects the indictment was certain and could not have” misled accused.
    [Ed. Note. — For other cases; see Indictment and Information, Cent. Dig. §§' 216-224; Dec. Dig. § 81.]
    7. Criminal Law (§ 1090) — Appeal—Bills of Exceptions.
    In the absence of bills of exceptions, objections to the admission and rejection of evi-. dence cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, -2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]'
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    ■ Bettie Smith was convicted of perjury, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and' convicted of, perjury. In the trial of her husband appellant appeared and testified-, being sworn by Clifton Wells, who it is alleged was deputy clerk of the county court of Nacogdoches county. The county •clerk, Mr. 0.: F. Baxter, appeared and testified that he had appointed Clifton Wells his deputy; that the deputation'had been mislaid, but he thought it was in his office, and probably could be found, although he had looked and failed to find same. He produced the record of deputation, wherein was recorded the deputation of Mr. Wells, which was introduced in evidence. • It appeared therefrom that the deputation had been acknowledged by Mr. Baxter before J. F. Per-ritt, justice of the peace and ex officio notary public. The oath was administered to Mr. Wells also by this officer. All this testimony was objected to by appellant on various grounds, all of which are stated in the bills of exception. Article -1748 of the Revised Statutes authorizes clerks of the county -court to appoint deputies, and requires such, deputation to be recorded in his office .and deposited with the clerk of the district court, and chapter 4 of title 53 of the Rev. Stats, authorizes this record, and copies thereof, to be introduced .in evidence. Chapter I of title 41 provides for election and qualification of justices of the peace, and article 2287 provides that each justice of the peace shall be commissioned as an ex officio notary public. Title 2 of the Revised Statutes authorizes justices of the peace to administer oaths, affidavits, and affirmances; consequently none of these bills present error, and the court did not err in admitting the record of the deputation,in evidence, and it sufficiently established that Mr. Wells had been legally appointed a deputy county clerk, and the oath administered by him was binding. The deputation, while not expressed in the best language, yet was sufficient, in law.

The indictment in this case alleged that appellant had sworn on the trial of her husband that he (Walker Smith) did not strike her with a stick at the time named, which said statement was material to the issue involved In said trial, when in truth and in fact said Walker Smith did strike the appellant with a stick, which fact' she well knew. All testimony which would go to show that she did' or' not so testify on the trial of Walker Smith would be admissible, but the testimony of witnesses as to other matters testified about on that trial would be irrelevant and immaterial, and the court did not err in so holding and excluding such evidence. The issue in this case was, Did she so testify, and was it true or false? and these othe'r matters sought to be inquired about would shed no light on that issue, but would only tend to mystify and becloud the real issues in' the case.

It appears that the Honorable F. P. Marshall, county judge, J. L. Burrows, constable, and O. F. Baxter, county clerk, were used by the state as witnesses- in the case, and although' the rule had been demanded these witnesses were by the court excused .from the rule. This is a matter within thé sound discretion of the trial judge, and in the absence of anything showing that his action in this instance was an abuse of this discretion these bills present no error. In addition to this, in neither of these bills is it shown what either of the witnesses testified to; so it is not presented in a way which would authorize us to review the matter, or judge whether or not the court did abuse his discretion.

That Dr. Loekey examined appellant on the day it was alleged her husband struck her, and what she then told him, would clearly be admissible in this case when she was on trial. Appellant’s objections might be sound if Walker Smith was on trial; but in this case Bettie Smith was on trial, and her statements, when not under arrest, would certainly be admissible against her. It was also proper to permit Judge Marshall to testify what appellant told him, as it all tended to show that she had sworn falsely on the trial of Walker Smith, when she testified he did not strike her.

The court did not err in overruling the motion in arrest of judgment. The fact that the words “Bettie Miles” are used at one place in the indictment where it was intended to say “Bettie Smith” does not render the indictment uncertain; nor could it have misled the appellant. The indictment had alleged that the offense was committed by appellant, naming her, by testifying to certain facts on the trial of Walker Smith, which said statements were false, and after naming her as Bettie Smith at least a dozen times in the indictment to, at near the close of the indictment, inadvertently call her “Bettie Miles,” but following it with an allegation again giving her her correct name, does not vitiate the indictment; especially is this true when the sentence containing the incorrect name can be treated as surplusage, and sufficient still remains to charge the offense. Wampler v. State, 28 Tex. App. 353, 13 S. W. 144; Musquez v. State, 41 Tex. 228; Bartley v. State, 47 Tex. Cr. R. 41, 83 S. W. 190; Chessley v. State, 74 S. W. 548; Eddison v. State, 73 S. W. 397.

There are several matters complained of in the motion in regard to admitting and rejecting testimony to which no bills of exception were reserved, at least the record before us contains no such bills; consequently the matters ar.e not presented in a way we can review them.

No special charges were requested, and we have carefully reviewed those grounds in the motion complaining of the charge of the court, and none of them present error.

The judgment is affirmed.


text:
    MALDONADO et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Homicide (§ 304) — Assault with Intent to Kill — Accident—Instructions.
    Evidence, on a trial for assault- with intent to kill, held, to require the submission of the question whether the discharge of a pistol was accidental, and hence the refusal to submit such question was reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 636; Dee. Dig. § 304.]
    2. Criminal Law (§ 779) — Instructions as .to Codeeendants — Assault with Intent to Kill.
    An instruction that if defendants, or either of them, assaulted the prosecuting witness with intent to kill and murder him, to find them, or either of them, guilty of assault with intent to murder, was erroneous; since it authorized a conviction of both, if either made an assault with such intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1858; Dec. Dig. § 779.]
    3. Homicide (§ 174) — Assault with Intent to Kill — Evidence.
    On a trial for assaulting the foreman of the ranch on which defendants were employed, with intent to kill, evidence that defendants’ cousin, who-was also employed-on'jsuch, ranch, immediately after the assault disappeared, and that two of the ranch owner’s horses disappeared at the same time, should have been -excluded, where it was not sought to connect defendants with such matter.
    [Ed. Note. — For other cases, see -Homicide, Cent. Dig. §§ 359-371; Dec. Dig. §'174.]
    4. Homicide ■(§ 166) — Assault with Intent to Kill — Evidence.
    On a trial for assaulting the foreman of the ranch where defendants were employed with intent to kill, the testimony of the cook on such ranch that, a few daws before the alleged assault, one of defendants wanted to borrow some money which she had, and which she declined to lend, telling him that it belonged to the foreman and not to her, presumably introduced on the theory of motive, should have been excluded, where the matter was not shown to have entered into the trouble.
    [Ed. Note. — For -other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    . Appeal from District Court, Brooks County; Wl B. Hopkins, Judge.
    Jose Garcia Maldonado and another were convicted of assault with intent to murder, and they appeal.
    Reversed and remanded.
    J. T. Canales, of Brownsville, and E. C. Gaines, of Austin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellants were convicted of murder in the second degree; their punishment being assessed at two years’ confinement- each in the penitentiary.

On the 5th of May appellants Jose Garcia Maldonado and Pedro Garcia Maldonado were working as hands on the ranch of J. P. Reed. On the same ranch and at the same time Victoriano Garcia Maldonado, Jesus Lopez, Ramon Estrada, and a - Mexican .woman, Antonia Ramirez, were also employed on the ranch; the woman' being the cook. She had a son with her ten years of age. These are' all of the persons who were on the ranch at the time of. the difficulty out of which grew this prosecution. The two defendants are brothers; Jose Garcia being older than Pedro. Victoriano Garcia Maldonado was brother of the two defendants, and Lopez their cousin. Ramon Estrada had been working upon the ranch for eleven years, and in the absence of Mr. Reed acted as foreman. Antonia Ramirez had been cook, residing on the ranch about two years. . The two defendants and Victoriano Garcia Maldonado and Lopez had been upon the ranch about six months. Estrada is the alleged assaulted party. His testimony is to the effect that on Sunday evening about 4 o’clock Pedro returned from the Rendado. Estrada had loaned Pedro a horse to ride to the Rendado. Pedro upon -his return inquired if there was anything in the house to eat. Estrada answered in the affirmative, and as they were going in-the house, Jose Garcia, one of the defendants, remarked to Estrada he was a scoundrel, and that he (Jose) was going.to kill a Mexican or American before be left there. There was a pistol lying on the sewing machine. Jose picked up the pistol and later fired at Estrada. The ball entered his hand and came out at or near the elbow. He further testified at the time the pistol was pointed at him Pedro caught his arm from behind and held him, and immediately after the shot the cook came in. This witness testified, also, that these Mexican boys had been working at the ranch together and that no friction or ill feeling or unkind words had occurred between himself and any of them. To use his express words, he says: “X had no trouble with them and do not know why Jose did the way he did. I had no conversation and no difficulty with him before. The day before I did not use any abusive language to him and he had used no abusive language to me before that.” This is substantially the state’s case. Pedro, Jose, and Victoriano Garcia Maldonado, the only other witnesses who were present at the time of the trouble, also testified that no ill will had ever existed between any of them and Ramon Estrada. That on Sunday evening they were all leaving their meal with Jose in front; Victoriano next, then came Estrada with Pedro behind. A pistol belonging to Mr. Reed, the owner of the ranch, was lying on the end of a sewing machine standing in the door of a side room just off from the door where they were going out. Jose, the boy who had the pistol in his hand when it was fired, had seen a pistol but had never handled one, and out of curiosity picked this one up and was handling it, letting the hammer up and down, when the others came out with Victoriano in front, Ramon Estrada, the injured party, immediately behind him, Pedro bringing up the rear. When Pedro, the elder of the boys, saw Jose with the pistol, he told him to put it back; but Jose kept handling it, and in a moment it fired. The ball passed sufficiently close to Victoriano to scorch his clothes and powder burn' his face; passing through the arm of Estrada, it struck Pedro in the face. When this occurred Victoriano took the pistol out of Jose’s hand and put it up. Nothing was said by Jose at the time. Jose, testifying, said: “I was with my face towards the others, but I don’t remember just exactly how I held the pistol then. The pistol then went off when I was examining it. I had never seen the pistol before. I had never owned or seen a^istol before. Before this I had been living on the Sabinas river near the city of Guerrero in Mexico. After the shot was fired I placed the pistol back where it had been. At the time I saw that my brother had been powder burned in the breast, and I noticed that Ramon Estrada was wounded; I didn’t know just where he was wounded, but I saw that he was groaning and saw from that that he was wounded, and I also saw my brother with his hand up to his chin and apparently wounded. Nothing was said before this shot was fired. My brother, who is also my compadre, told me to let the pistol alone, that a shot might go off. That was as soon as he saw me with the pistol, and at that moment the shot was fired. The woman cook came and took Ramon away. * * * Just as I reached for the gun my brother Pedro told me to let that gun alone lest a shot might go off. Vic-toriano was a little behind from me, but was really nearer to me than Pedro was. I picked up the gun' nevertheless. X was handling the pistol and turned around. I cocked the pistol and lowered it two or three times. I cocked it with my thumb and let down the trigger with my forefinger two or three times. Before that time I had never seen a pistol. I had seen them some time, but I had never handled one.” He says, “It is not true that when I pulled that gun and cocked it and threw it down on Ramon that he threw up his left hand and that my brother .Pedro grabbed him from behind. That is not true.” There are other facts tending to show accident.

The court submitted the theory of the state, but did not submit the theory of the defendants; that is, the pistol went off accidentally and the shooting was unintentional. It is deemed unnecessary to review the facts further in this connection. This evidence called for a charge on accidental discharge of the pistol. This matter was preserved in the trial court and is properly presented here for revision. This was error. The court should have charged this theory of the case. Calhoun v. State, 71 S. W. 279; McCray v. State, 68 Tex. Cr. R. 522, 140 S. W. 442; Hodge v. State, 60 Tex. Cr. R. 157, 131 S. W. 577.

The court gave this charge: “If from the evidence you are satisfied beyond a reasonable doubt that the defendants Jose Garcia Maldonado and Pedro Garcia Maldonado, or either of them, on or about the time charged in the indictment, in the county of Brooks and state of Texas, with a deadly weapon, and with malice aforethought, did assault the said Ramon Estrada with intent then and there to kill and murder him, by the means charged in the indictment, then you will find the defendants or either of them guilty of an assault with intent to murder, and so say by your verdict,” etc. Exception was reserved in the trial court to this and again presented -to this court as error. This charge is not correct. Under this charge the jury was authorized to convict both defendants if they should find that either made the assault upon Estrada with intent to kill him. This charge is, without discussion, erroneous. Tittle v. State, 30 Tex. App. 527, 17 S. W. 1118; Hays & Trent et al. v. State, 30 Tex. App. 472, 17 S. W. 1063.

Jesus Lopez, when the shot was fired, immediately left the ranch and had not been heard of or located at the time of the trial, which occurred some time subsequent to the trouble at the ranch. There is no evidence connecting Lopez with the shooting in any manner. He was present at the time, and when the pistol fired he fled, and so far as the record is concerned has not ceased his flight. The next day it was discovered that two of Mr. Reed’s horses were gone. The disappearance of Lopez and the fact that the horses were ascertained to be gone the next day seems to have been relied on by the state to show that Lopez committed theft of the horses. Whether this be true or not, this evidence, we think, was not admissible against- appellants. That occurred after the shooting. Appellants were in no way connected with it, nor was it sought to connect them with it. This matter, while excepted to in the statement of facts, was not brought forward in the bill of exceptions, and is so presented perhaps under the decisions it is doubtful if it is reviewable. Be that as it may, as the ease has to be tried again, we call attention to the fact that this testimony was not admissible, and appellant’s exception ought to have been sustained.

There is another proposition in the case submitted for reversal. The woman Antonia Ramirez was permitted to testify that she had $130 in her stocking which she kept in her room, and that one of the defendants had seen this money prior to the homicide and wanted to borrow $15 of it, which she declined to lend him, stating that it did not belong to her, but that it did belong to Ramon Estrada. This was a few days prior to the shooting. This matter is presented about as that with reference to the flight of Lopez and the disappearance of the horses. This had no connection with the shooting. We suppose this was introduced on the theory of motive, it is not shown to have entered into the trouble, if, as a matter of fact, the shooting was intentional. We mention this also so that upon another trial this error may not get into the case.

The judgment is reversed, and the cause is remanded.


text:
    KINCH v. STATE.
    (Court of Criminal Appeal of Texas.
    April 2, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1. Criminal Law (§ 1036) — Competency ox Witnesses — Rulings—Review.
    Where prosecutrix was tested as to her competency, and the court decided that she was competent, and her testimony went before the jury, accused, reserving no exception, could not complain of the ruling.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2634-2641; Dec. Dig. § 1036.]
    2. Jury (§ 110) — Selection—Objections.
    Where accused tried at one term accepted, without objection, the jury selected at the prior term, he could not after trial complain of the time of the selection of the jury.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 502-513, 515-523; Dec. Dig. § 110.]
    3. Rape (§ 6) — Elements oe Offense — Force.
    Force is not an element of rape on a female under the age of consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 6; Dec. Dig. § 6.]
    On Motion for Rehearing.
    4. Criminal Law (§ 951) — Motion eor New Trial — Time oe Filing.
    A motion for new trial filed after the term at which the conviction occurred comes too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358; Dec. Dig. § 951.]
    5. Criminal Law (§ 1099) — Statement oe Facts — Time oe Filing.
    A statement of facts filed after sentence, entered nunc pro tunc at a term subsequent to that at which conviction was had, cannot be considered on appeal; for a statement of facts must be filed at the term at which the jury returned the verdict and judgment entered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    6. Criminal Law (§ 1172) — Harmless Error-Erroneous Instructions.
    Where, on a trial for rape on a female under the age of consent, prosecutrix testified that accused had intercourse with her, and physicians examining her declared that she had been penetrated, an instruction that it was necessary that the evidence showed penetration, but beyond that the jury need not go, though erroneous, was not ground for reversal; the indictment not alleging that the offense was accomplished by force, threats, or fraud.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172; Rape, Cent. Dig. § 104.)
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Russell Kinch was convicted of rape on a female under the age of consent, and he appeals.
    Affirmed.
    See, also, 150 S. W. 610.
    Beard & Davidson, of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

This is a conviction for rape; the punishment being assessed at 10 years.

1. There are no bills of exceptions incorporated in the record. Appellant urges two grounds for reversal, which cannot be considered in the absence of bills of exceptions. The first is to the competency of the witness Emma Grandberry, the prosecutrix, and the second is to the fact that the petit jury who tried appellant had been drawn at the May term for the November term of the court. With reference to the competency of the testimony of the girl, it is sufficient to say that she was tested as to her competency, and the court decided adversely to appellant, and her testimony went before the jury. Appellant reserved no exception, and therefore cannot be heard to complain. In regard to the second question, the record shows an agreement in the statement of facts that the jurors who tried appellant were selected at the May term of the court, and that he was tried at the following November term. Appellant went to trial without objection, accepted the jury, reserving no exception. There was no challenge to the array; nor was there an exception reserved to any juror who sat upon the trial. This does not come within the rule laid down in the case of Woolen v. State, 150 S. W. 1165, and Mayfield v. State, 151 S. W. 303, and Whiten v. State, 151 S. W. 1182, three cases decided at the present term of court. The three cases mentioned were from Harrison county, as is this case. Those cases discussed the legality of the indictment, because it was returned by grand jurors selected as the petit jurors were selected in this case, but timely objection was urged, and the indictment was held vicious under the authorities and line of reasoning set forth in those cases, Under the circumstances of this case, we are of opinion those cases are not applicable. If appellant had objected to these jurors, or to the array, before the selection of the jury, his. case would have presented a very different proposition. We therefore hold that, even had the matter been presented by bill of exception, we could not reverse, inasmuch as appellant accepted the jury without objection and only suggests it, after trial, in the agreed statement in the statement of facts.

2. The court gave the following charge: “Penetration only is necessary to be proved by the state upon a trial for rápe, but it is necessary that the evidence show beyond a reasonable doubt that there was penetration; that is to say, that the private parts, the female organ of the female alleged to have been raped, was penetrated or entered into by the male member or organ of the accused. Beyond the mere fact of penetration you are not required to go, as to ascertain how deep or how far the penetration- or entry extended," or whether or not there was emission of semen.” This charge trenches closely upon forbidden ground, and had the indictment alleged either force, threats, or fraud it would have been fatal to this conviction. The indictment, however, alleges the rape upon a girl under 15 years of age, and does not allege that this was accomplished by either force, threats, or fraud. Therefore the case does not come within the rule laid down in the McAvoy Case, 41 Tex. Cr. R. 56, 51 S. W. 928, and cited by appellant, nor within the rule laid down in the Cromeans Case, 59 Tex. Cr. R. 611, 129 S. W. 1129. These cases are cited in support of this proposition. In this case the evidence is clear on the part of the prosecu-trix that appellant had actual intercourse with her and penetrated her, she says, a distance the length of her finger. Two physicians examined her and declared that she had been penetrated. We are of opinion that this charge, while erroneous; is not sufficiently so in this ease to require a reversal of the judgment.

3. It is contended that the court erred in presenting the issue of rape to the jury, and that he nowhere defined and told the jury the meaning of the term “assault,” and did not define and give the meaning of the word “force” in connection with rape. The court did give the definition of assault, but did not define force. It is contended that the court erred in not defining force. This is not correct in this character of ease. The girl was under 15 years of age, and the element of force does not enter into the case. We are cited to the McAdoo Case, 35 Tex. Cr. R. 603, 34 S. W. 955, 60 Am. St. Rep. 61. In the McAdoo Case it was necessary to give the definition of force. That was under a' different article and alleged an attempt to commit rape. All of the decisions, as well as the statutes, recognize and keep separate a distinction between assault to rape and an attempt to rape.

■ 4. In the other questions suggested we find nothing of sufficient importance to discuss. The judgment is affirmed.

On Motion for Rehearing.

The judgment herein was affirmed recently. Motion for rehearing is filed, suggesting that the court was in error in affirming the judgment. We have reviewed the questions and are still of the opinion, as this record presents the matter, that the motion for rehearing should be overruled.

A little statement may .be necessary or proper here. • The first, appeal or attempted appeal was dismissed because of a want .of sentence.' Subsequently a sentence was entered, and an appeal prosecuted following sentence. After the trial court entered sentence, appellant filed a motion for a new trial. A motion for new trial comes too late, as we understand our statutory enactments, if filed after the term at which the conviction occurred.

Appellant also filed á statement of facts after the sentence was entered nunc pro tunc at the subsequent term. This cannot be considered under the statute. The statement of facts must be filed in connection with the term of court at which the conviction occurred; that is, at the terra at which the jury returned the verdict and judgment entered. The statement of facts filed after the sentence is included in this transcript, instead of the original statement of facts filed after the term at' which the conviction occurred. Realizing the condition of the record, the writer wrote the opinion affirming the judgment as if the statement of facts was timely filed, because these matters might- be- Cured by -certiorari in bringing up-the first statement of facts, inasmuch as it was filed within time. To prevent this delay the writer, perhaps not in exact accord with the law, considered the facts. This is mentioned in order to -call attention to one proposition urged by appellant.

His contention is that the opinion affirming the judgment states the testimony of the two doctors a little strongly for the state. In stating the evidence the record was not copied, but a substantial conclusion from the facts was stated. We have reviewed this testimony in the light of the criticism and still thinls that the conclusion reached, if erroneous, was not sufficiently so to amount to anything. We stated in the original opinion, in substance, that the two doctors examined the girl and found she had been penetrated. One of them did; the other stated that in examining the girl he found indications showing the girl had been penetrated. It is unnecessary, we think, to go into a detailed statement. It is evident from any fair reading of the testimony of these two doctors that the girl, from their evidence, had been penetrated. • The testimony of one is little stronger than-the other; the second one claiming from indications which he discovered about the private parts of the girl that she had been penetrated. But even if the conclusion of that doctor-may have been a little strong, or may have not fully indicated that the girl had been penetrated by the male member, yet that would be corroborative or cumulative of the testimony of the other doctor and of the prosecutrix. The state made out a case, so far as the assault and penetration were concerned, which if the jury believed would justify their conclusion. So the matter as presented, we think, does not amount to anything serious, and is not of sufficient importance for serious discussion.

In regard to the other questions, we are of opinion we were correct. The court charged upon the law of and defined assault. It was not necessary to repeat this, we think, in connection with submitting the issue of rape. The court was not charging rape by force. It was not in nor of the case. The girl was under 15 years of age. Force was not an issue, and the court did not submit it upon that theory. There was evidence adduced sufficient to constitute rape upon a girl under 15. The writer has not been in accord with many of the authorities in this state with reference to what it takes to constitute assault to rape upon a girl under 15 years, but his views have not obtained as being the law; but if rape was committed in this case the assault was complete under any view of the law. The writer would have taken a different view if these alleged errors, if errors they be, would probably have brought a more favorable verdict to the defendant. The writer is of the opinion that if an error is committed in the trial court, but for which the verdict would have been more favorable to the accused, then that error would be fatal to the conviction. But in this case the errors, the writer thinks, are not of that character.

Believing there is no substantial merit in the motion for rehearing, and there is no question raised that would have been of assistance before the jury to the defendant, the motion for rehearing is overruled.


text:
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1. Homicide (§ 146) — 1Trial—Instructions.
    Malice as a predicate for murder in the second degree may be implied, but not merely from an unlawful killing; so that where there was evidence of manslaughter, negligent homicide, and self-defense, an instruction that implied malice would be presumed from an unlawful homicide is erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 265-271; ' Dec. Dig. § 146.]
    2. Homicide (§ 340) — Appeal—Reversible Error.
    In a homicide case, where there was evidence of manslaughter, negligent homicide, and self-defense, a charge that malice is an ingredient of the offense of murder in the second degree, which may be implied from the fact of an unlawful killing, is reversible error, where coupled with other charges differentiating murder in the first and second degree and informing the jury that, where an instrument reasonably calculated to produce death is used and does produce it, malice aforethought will be implied when the killing is not done in self-defense. .
    [Ed. Note. — For other cases, see . Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    3. -CRIMINAL Law -(§ 475) — Evidence—Expert Evidence.
    In a prosecution for homicide with a pistol, opinion evidence by an expert as to where the balls entered and left the body of deceased is inadmissible, where it is shown that the expert did not view the body until a day after the killing during which time cotton had been stuffed into the wounds thus enlarging them.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1063; Dec. Dig. § 475.]
    4. Criminal Law (§ 338) — Evidence—Admissibility.
    In a prosecution for homicide, evidence that there had be'en a good deal of gambling among negroes and Mexicans in the vicinity in which accused lived some time prior to the killing was irrelevant and improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753. 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Witnesses (§ 386) — Impeachment—Con- . tradiction — Predicate.
    A witness in a homicide ease, who testified that deceased threatened accused, and that he communicated those threats to accused, cannot be impeached by proof that, while talking- to the county attorney and others on the night previous to testifying, he did not inform them of the threats; there being no predicate for such impeachment, and it not being shown that the witness was examined as to all the occurrences of which he was cognizant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1226, 1227; Dec. Dig § 386.]
    On Motion for Rehearing.
    6. Criminal Daw (§ 1093) — Appeal—Bill of Exceptions — Sufficiency.
    In a prosecution for homicide with a pistol, a bill of exceptions, reciting that while the witness was upon the stand, after it had developed that he had not seen the body of deceased until the day after the homicide, and there had been no evidence introduced that the condition of the wounds was then the same as immediately subsequent to the shooting, he was permitted to testify over accused’s objection as to the manner in which the balls entered and left the body of deceased, and that an opinion based on such condition Vas immaterial and prejudicial, sufficiently presents for review the question of the competency of such evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    7. Homicide (§ 338) — Appeal—Prejudicial Error.
    In a prosecution for homicide, the admission of evidence as to gambling and crime among the negroes and 'Mexicans in accused’s vicinity about a year before the offense is prejudicial error, even though the testimony did not connect accused with such lawlessness.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Jim Roberts was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Collins, Cummings & Shurtliff, of Hills-boro, and Williams & Williams, of Waco, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

       Por other cases see game .topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

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

   DAVIDSON, P. J.

The court submitted the case to the jury upon the issues of murder in the first degree, second degree, manslaughter, and self-defense. The jury acquitted of murder in the first degree -and convicted of murder in the second degree.

With reference to malice, among other things, the court gave this charge: “Malice is always a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing.” Applying the law to the case, the court thus instructed the jury: “Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense, did shoot and- thereby kill the said Rufus C. Weiss, as charged in the indictment, you will find him guilty of murder in the second degree and assess his punishment at confinement in the penitentiary,” etc. Objections were urged to both charges with reference to the matter of malice and the constituent elements under the charges as given as to-murder in the second degree. It is not a correct proposition that murder in the second degree will be implied from the fact of an unlawful killing. It may be implied; but, in order to constitute murder in the second degree, malice will not be implied as a matter of law from an unlawful killing. Implied malice may exist, or will be the subject of implication or conclusion where murder in the first degree is not shown to exist, and where the facts do not mitigate, excuse, or extenuate or justify the homicide. Malice as a predicate for murder in the second degree may be implied, and the jury might be justified in arriving at the conclusion that the killing was upon implied malice, where manslaughter, negligent homicide, and self-defense are not part and parcel of the evidence or of the case. Manslaughter is an unlawful killing; negligent homicide is also an unlawful killing, and under some circumstances accidental homicide may be an unlawful killing. Therefore it is not correct to charge the jury that in murder in the second degree malice will be implied from the fact of an unlawful killing.

Following this definition, the court intensified this error by informing the jury that implied malice aforethought is where the killing occurred with an instrument reasonably calculated to produce death and does produce it in the manner and mode of its use-when this killing is not done in self-defense. This, taken in connection with the previous-charge of the court that malice will be implied from an unlawful killing, would justify and authorize the jury to find the killing upon implied malice aforethought, even though the facts should show it was manslaughter, or any other inferior degree of a culpable killing. Under the definition given, the jury was -justified in convicting appellant of murder in the second degree upon implied malice if they should find that the killing was unlawful from any standpoint, and in the application of the law to the facts this matter is not correctly presented, but the jury is left to conclude that although the killing might have been manslaughter or otherwise unlawful, yet it would be implied malice because it was unlawful, this being intensified, by the court only qualifying malice aforethought when the homicide was justified in self-defense. Appellant was given 40 years in- the penitentiary for murder in the second degree. What effect this may have had upon the jury is conjectural, but the verdict of the jury is not in any sense conjectural. This charge may have tended to enhance the punishment above the minimum of five years. This error is of sufficient- importance to require a reversal of this judgment.

Another question is suggested by a bill of exceptions, which recites, in substance, that while Dr. Mahaffy was testifying for the state, and after it had been developed that he had not seen the body of deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased’s body was the same at the time said witness saw same as they were shortly after they were inflicted, the witness was permitted to testify, in substance, that the wounds indicated that the bullets entered from the rear. It is also recited in the bill, in this connection, that inasmuch as a day’s time had elapsed between the killing and the examination of the deceased by the witness, and that the witness had no evidence that the wounds were in the same condition at the time of the examination as when inflicted, and further that it had been shown, and would be more fully shown during the trial, that cotton had been stuffed ih the wounds which had changed their condition and which had enlarged the same so that the wounds in front appeared larger than the wounds in the back of the body. This bill does not present the matter as clearly from the facts as should have been. If the wounds had been enlarged in front by treatment of any sort, either by insertion of cotton or by a surgical operation, we are inclined to hold that the testimony of Dr. "Mahaffy, so far as this phase of the case is concerned, would not be permissible. If. wounds have been in any way tampered with before the expert or other witness undertakes to testify as to the condition of the wound, then it would be improper for the witness to testify or give his opinion as to whether the shots entered from the front or rear. It is permissible to elicit evidence that the ball entered from the rear and passed out in front, or in front and passed out at the rear; but this would not be so where, after the infliction of the wound and before the witness undertakes to describe it, said wound had been so tampered with as to change its original appearance or condition. It seems to be generally thought, and stated as a general rule, that the exit of the wound is larger than its entrance, yet this does not seem to be the invariable rule, but where the wound made by the supposed exit of the ball has been tampered with and enlarged by that means, then such testimony ought not to be permitted to go to the jury.

Another bill recites that, while appellant was testifying in his own behalf on cross-examination, the county attorney was permitted to elicit from him that there were quite a number of Mexicans and negroes in his section of the country during the fall of 1911, the year before the homicide,- and that there was a good deal of gambling going on in that neighborhood at that time. It would not be relevant testimony that a year prior to this homicide there had been a good deal of gambling in that country among negroes and Mexicans. This may have been and doubtless was prejudicial to appellant’s case before the jury. He ought not to have been held responsible in this homicide case for such gambling transactions among negroes and Mexicans.

Another bill recites that Edgar Johnson testified for the defendant, among other things, that the deceased had made threats against, the life of defendant, which he (witness) had communicated to the defendant. While this witness was on the stand, the county attorney asked him if, while talking to the witness Frazier and other counsel on the night previous to his testifying, he had told either of those gentlemen about any threats which he had heard deceased make concerning the defendant. Various objections were urged, but they were overruled, and the witness was required to testify that on the previous night the county attorney had talked with him and during that conversation said Johnson had not informed him and the other counsel about any threats he had heard deceased make concerning defendant. This testimony was illegal and improperly admitted in the case of Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764, this question was before the court, and it was held that where a witness did not state at a former trial or on former occasions the same fact that he states at the pending trial, it is not a contradiction when there is no inconsistency between his statements on the two occasions, or when his attention was not called on the prior occasion to the new matter about which he speaks at the pending one. In support of this cases were cited, among others, Lewis v. State, 15 Tex. App. 647. In order to contradict a witness in regard to this matter, it should or ought to be shown in some way that the matter was called to his attention. The mere fact that the witness fails to tell everything connected with a matter about which he testifies at the pending trial does not afford grounds for impeachment, unless brought within the rules above announced. A mere failure to state all of the facts is not necessarily a contradiction. As was said in the Hyden Case, supra: “The strongest light in which the matter can be regarded in favor of the prosecution is that Mrs. Hy-den omitted to state on the examining trial the facts inquired about in the predicate laid for her impeachment. Her testimony on the final trial and the evidence - omitted on the examining trial are entirely harmonious, and are in no way contradictory. On the examining trial she was not questioned with reference to the evidence inquired about in relation to which she was sought to be impeached on the final trial. Had she, on such examining trial, been interrogated in relation thereto', and failed or refused to testify in regard to it, or had then denied it, or had been cautioned to tell all she knew in. reference to the matters then under investigation, and had failed or refused to do so, the impeachment would have been permissible. But, on the other hand, if she had on such examining trial testified as she did on the final trial, and at the time of the proposed impeachment, or if she had not on such examining trial been interrogated in reference to that matter, and had not been requested specially to state all the facts within her knowledge touching such matters, she could not be so impeached.” The Hyden Oase lays down the correct rule, and has not been questioned by any subsequent decision in this state. In fact, it seems to have been followed wherever the question has been before the court. The rule is a correct one, whether it had ever been decided or not.

There are some other .matters presented for revision, among them the refusal to continue the case and newly discovered evidence. These questions involve quite a lengthy part of the record; but, as they will not arise upon another trial as here presented, we deem it unnecessary to discuss them.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

At a former day of the term .the judgment herein was reversed. Messrs. Wear &. Frazier, counsel for private, prosecution for the state, have filed a motion for rehearing attacking the opinion of the court in several respects.

It is contended the court was wrong in holding that the testimony of Dr. Mahaffy was objectionable; among other things, it is stated the bill of exceptions does not show, at the time the objection was made, any evidence had been offered in reference to a change in the condition of the wound by cotton having been stuffed into it, etc. The bill is as follows: “While the witness Dr. H. A. Mahaffy was upon the witness stand as a witness for the state, and after it had been developed that he had not seen the body of the deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased’s body was the sáme at the time said witness saw same as they were shortly after they were inflicted, the said Dr. PI. A. Mahaffy was permitted to testify as follows,” etc. After setting out his testimony in the bill in regard to the matter, the bill further recites that “appellant objected to the questions and answers so made by the said witness, as above set forth, on the ground that it had been developed that a day’s time had elapsed between the killing and the examination, of the deceased by the said witness and said witness had no proof that said wounds were in the same .condition .at. the time.of such examination as they were when inflicted, and on. the further ground that it had been shown, and .would be shown, and it was thereafter testified that the condition of said ■ wounds had been changed, that is, that cotton had been stuffed in his .wound and had changed the condition of the same and had enlarged, the same, and the said witness based his opinion in part upon the fact that the wounds in front appeared larger to him than the wounds in the back of said body, and that an opinion-based upon such condition rVas immaterial and prejudicial,” etc. We are of opinion that this bill of exceptions does show and recite, as a matter of fact, that Dr. Mahaffy had •not seen the body of the deceased until the day after the homicide, and it does recite there had been no evidence introduced that the condition of the wound on the body of the deceased was the same at the time witness saw it as it was shortly after the wound was inflicted, and it does recite as a fact that it was testified that the condition of the wound had been changed; that is, that cotton had been stuffed in the wound and had changed the condition of it and enlarged-it, etc. We quote the record to show the real condition of the bill of exceptions. We are of opinion this sufficiently presents this question, and if upon another trial the matter is again thus presented, that part of Dr. Mahaffy’s testimony with reference to his opinion based on the condition of the wounds as set forth in the bill should not be permitted to go to the jury. Experiments, as originally stated, are permissible, but the experiment must indicate the condition' of the things at the time the experiment is made as conformable to the conditions at the time the thing happened about which the experiment is made.

It is contended the court’s opinion was wrong in holding the trial court erred in permitting testimony in regard to the fact that there was a considerable amount of gambling in appellant’s neighborhood among the negroes and Mexicans a year before this homicide. It is further claimed in the motion, if the testimony is not admissible, that “it was a matter so utterly immaterial, to wit, that there were Mexicans and negroes in the country that it could not prejudice or in any. way affect appellant’s rights.” The evidence introduced over objection'was that there was a great deal of gambling going on among the negroes and Mexicans in that country a year before the homicide. What appellant had to do with this, or why it should have been introduced against him, we do not understand. If it was utterly immaterial as contended by. counsel, then it may be asked, why was it introduced? It was put in for some purpose, arid unless appellant was in some way connected with it or it entered into his action with reference to this homicide, if immaterial so far as he was concerned, it was prejudicial; at least, .it was intended. to. operate in some, way against him or else the state would not have put it before the jury. It was. prejudicial. Lawless-nesses not immaterial when urged against an dccuse'd. It does affect him advéi’sely.

Another question is suggested in which it is contended the court was wrong in reference to the evidence of the witness Frazier. It is true that the opinion does not state the matter exactly as it should have been stated, for upon reading the opinion it seems there was some confusion as to which witness testified to certain facts, whether it was Johnson or Frazier. To remedy this matter and put it as the bill of exceptions shows, the following will be noted from the bill: “A. M. Ftazier, county attorney, while on the witness stand as a witness for the state, was ashed, ‘If Edgar Johnson, a witness who had testified for defendant, while talking to the witness Frazier, Judge W. 0. Morrow and Judge W. C. Wear, on the previous night, had told either of them anything about any threat that he had heard the deceased make concerning the defendant?’ Be it further remembered that the witness 'Edgar Johnson, a witness who had testified for the'defendant, testified that deceased had made threats against the life of defendant, and that he had communicated same to the defendant; that thereupon counsel for defendant objected to said question. propounded to the witness Frazier, and the answer sought to be elicited thereby, on the ground that no predicate was laid for that character of impeachment and that said testimony was hearsay, irrelevant, and immaterial, which objections were overruled by the court, and the witness was permitted to testify and did testify that the witness Edgar Johnson, on the previous night, while talking to said parties, had not told them a word about any threat he had heard the deceased make concerning the defendant.” Without taking up the exceptions, etc., and going further into this matter, this statement is- simply made to correct the original opinion, as it does not show clearly how the matter occurred. What we said before we adhere to in regard to this matter, so far as the legal conclusion is concerned. If it is sought to contradict Johnson by' Frazier, it was necessary that the matter be called to Johnson’s attention, under the rule in the Hyden Case, 31 Tex. Cr. R. 401, 20 S. W. 764. That decision lays down the correct rule. This is noticed simply to make the original opinion conform more correctly to the bill of exceptions, and state the matter exactly as it occurred, and to remove any doubt as to the position of the two witnesses Frazier and Johnson in their testimony.

Another contention in the motion is that the opinion reversing the judgment is erroneous in holding the charge of the court on murder in the second degree deficient. We again repeat the criticised charge as follows : “Malice is always a necessary ingredient of the offense of murder in the second degree,- The distinguishing feature, however, so- far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in. murder in the second degree malice will be, implied from the fact of an unlawful killing.” This is not the law. Malice will not he necessarily implied from an unlawful hilling. Manslaughter is an unlawful killing, and an intentional one, yet malice is not implied. Negligent homicide is an unlawful killing, but malice, is not implied. Murder in the second degree has been frequently defined, and it is unnecessary to review the authorities. While it is true in another portion of the charge the court drew the distinction between murder in the first and second degrees, and, among other things, stated that express, malice constituting murder in the first degree must be proved, and where the facts do not show mitigation or extenuation or justification, a homicide will be murder in the second degree. But when the court comes to apply the law to the case and instruct the jury as to their guidance upon this subject, the charge uses the following language: “Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt- that the defendant,, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense, did shoot and thereby Mil the. said Rufus O. Weiss, as charged in th.e indictment, you will find him guilty of murder in the second degree,” etc. Looking at the definition in the face of this application of the law, this charge is not sufficient. The court had charged the jury that malice necessary to constitute murder in the second degree loill he implied from an unlawful hilling.

In another portion of the charge drawing or seeking to draw the distinction between the two degrees of murder, the court informed the jury that murder in the second degree would be constituted where there were no mitigating or extenuating circumstances or justification. Now applying the law, he leaves the matter before the jury that a killing-under any circumstances'except in justification or self-defense would constitute murder in .the second degree. ■ The charge would have been in much better condition, where the law is applied to the case, had the court left off the expression “and not self-defense” did shoot, etc. Having given this part of the charge, the jury should also have been instructed with reference to the other matters that might reduce the killing below murder in the second degree. The court having instructed the jury that malice aforethought, under "the'foregoing instructions, applied of necessity to the definitions given, would include manslaughter in his idea of malice aforethought. This is emphasized by the exception in the application of the law to the .case wherein the jury was instructed that if he killed in self-defense it would not be murder in the second degree. But it leaves the jury to conclude that if he killed under any other circumstances than self-defense under the foregoing instructions he would be guilty of murder in the second degree. Manslaughter is not included in the foregoing definition, but was in fact in the case. Now, if defendant killed under circumstances which would constitute manslaughter, it would not be murder in the second degree, and could not be malice aforethought. The court having charged the jury that malice will be implied from the fact of an unlawful killing, and then in applying the law to the case told them that under the foregoing instructions if he killed that it would be upon malice aforethought unless he killed in self-defense. Having submitted this matter in this manner to the jury, it was evidently erroneous. We refer to the Best Case, wherein Judge Ramsey laid down the correct and proper form. It is unnecessary here to quote from that opinion. See Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 909. This matter was so thoroughly elucidated by Judge Hurt in Miles v. State, 18 Tex. App. 156, it is deemed unnecessary to discuss that question further. Judge Hurt, in his usual, able, and exhaustive manner, reviewed this question in that case. The writer does not care to add or try to add to or supplement his reasoning; in fact, it is .seldom the case, when Judge Hurt had given careful attention to a proposition and wrote upon it, that it would need further illustration or discussion. See, also, Branch’s Crim. Law, § 426, and cases as well cited in Branch’s Crim. Law, § 428. It has been held so often it is unnecessary to repeat it, that a charge is error which authorizes a conviction for murder in the second degree on a state of facts which would constitute only manslaughter. Miles v. State, supra, and Ray v. State, 46 Tex. Cr. R. 511, 81 S. W. 737. Again it is said, stating the circumstances, the absence of which authorizes the inference of implied malice, a charge should not ignore circumstances which mitigate or extenuate a homicide. Ellison v. State, 12 Tex. App. 581; Neyland v. State, 13 Tex. App. 549; Turner v. State, 16 Tex. App. 391; Wheeler v. State, 56 Tex. Cr. R. 550, 121 S. W. 166.

A review of these cases convinces us that appellant was correct and is entitled to a reversal of his judgment, and there is no substantial reason set out in the motion for rehearing why the former opinion should be set aside or the judgment affirmed.

The motion for rehearing is therefore overruled.