author: DAVIDSON, J.

text:
    DAUGHERTY v. STATE.
    (No. 3894.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Criminal Law <&wkey;1099 — Statement of Pacts — Late Filing — Diligence.
    Defendant, having prepared a statement of facts and early on the last day of the term presented it to the proper officers in time to have it disposed of on that day, was not wanting in diligence, and so was entitled to have it considered on appeal, though under a ruling of the judge, of no necessity, approved of by the county attorney, it, without an order granting time after adjournment, was not taken up and approved and filed till the following day.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. &wkey;j 1099.]
    2. Criminal Law <&wkey;535 — Confession—Corpus Delicti.
    An extrajudicial verbal confession by defendant is not enough for conviction, being insufficient to establish the corpus delicti.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1225, 1226; Dec. Dig. <&wkey;> 535.]
    3. Weapons <&wkey;17 — Carrying Pistol — Sufficiency of Evidence.
    That during a storm a noise was heard from the direction of defendant, which some of those hearing it thought was a pistol or gun, is in- ■ sufficient for a conviction of carrying a pistol; defendant and the only other person in a position to know testifying that he did not fire a pistol.
    [Ed. Note. — For other cases, see Weapons, Gent. Dig. §§ 20, 22-33; Dec. Dig. <&wkey;>17.]
    Appeal from Williamson County Court; Richard Gritz, Judge.
    A. J. Daugherty was convicted, and appeals.
    Reversed and remanded.
    Wilcox & Graves, of Georgetown, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of unlawfully carrying a pistol, his punishment being assessed at a fine of $100.

Motion is made to strike out the statement of facts because filed after adjournment of the term, without an order entered for that purpose. This motion of the Assistant Attorney General is met by affidavit, to the effect that on the last day of the term, which was the 30th of October, a. statement of facts prepared by appellant’s counsel was presented to the proper officers for approval, the county attorney and the judge. This may have been, and doubtless was, presented in ample time to have been read and disposed of, as the statement of facts is short. But this was not done, and after full free discussion among themselves, the county judge held it was not necessary, the county attorney agreeing with him, and one of the attorneys for appellant said he agreed with them on reading article 845, but was afraid of it, and preferred to have an order entered granting time. However, they all agreed finally that the law was so plain, as they expressed it, that it was not necessary to enter the order, and it was not entered. Appellant’s counsel rather insisted, however, that it should be entered. The last day of the term being Saturday, the statement of facts was not approved, but Monday, after going over the matter with the county attorney, ■ an agreement was reached, and the county judge approved the statement of facts, and it was filed on that day, which was the 1st day of November, court having adjourned the 30th of the preceding month. The question is, Was this sufficient diligence on the part of counsel to obtain a statement of facts, and was he by no fault on his part deprived of the same? We are of opinion that he was not wanting in diligence. He presented the statement of facts early enough on Saturday to have had it approved that day, and in view of the ruling of the county judge and the county attorney that it was not necessary to enter the order, they did not take up the matter and approve the statement of facts during term time. This should have been done, or proper order entered granting time after adjournment of court. Under this view of the case we believe appellant is entitled to have his statement of facts considered, or the case reversed because he was deprived of such statement of facts. Inasmuch as the statement of facts is before us, signed by both parties and approved by the judge, and filed as above stated, we are of opinion it is not necessary to reverse for that reason, but consider the evidence.

The facts show that some parties were going from Florence to Briggs in an auto at night. There came up a very heavy thunder storm and rain, which put their car out of commission, and they spent the night in the car on the road. The lightning and thunder was vivid and heavy, and the rain came down with considerable force and in great quantities. During the night a noise was heard on the left-hand side of the car at the front end. It was discussed among the occupants of the ear as to what created the noise. Some said it was a gun or pistol; others said it was lightning or obstruction of a nearby object, and thunder, etc. No one saw any pistol, and if appellant had a pistol, it was at this point. He sat on the right-hand side of the car and was driver. Another witness sat by his side in front of the car on the left. He says appellant did not have a pistol and did not fire one; that in order for him to have fired out of the left-hand side of the car he would have had to reach across the body of the witness and shoot out of the left-hand side of the car. This he says appellant did not do. This is the state’s case, except one witness, Sudduth, who had made threats to break up the defendant by prosecution, etc., on account of some difficulty they had about settling some financial matters; he testified that appellant stated to him he fired a pistol at this time and place. This may be said to be the sum and substance of the facts. No one saw the pistol; two heard a noise. The only witness who seems to have been in position to know said appellant did not fire a pistol and did not create the noise. Appellant himself testified' that he did not have a pistol, and did not own a pistol at the time, except an old broken one, which was at home, incapable of being shot. Under this state of case we are unwilling to affirm this judgment. The extrajudicial verbal confession of a defendant will not prove the case. It has always been held that extrajudicial confession alone is not sufficient to establish what we term the “corpus delicti.” This has specially been so held since Hill v. State, 11 Tex. App. 132. If appellant had a pistol and fired it, of course he would be guilty; at least he could be charged with having had the pistol at the time. This case is treated not as raising the question of appellant being a traveler, though the facts show he was going from Florence in Williamson county to Briggs in Burnet county. But the mere fact of a noise under the circumstances here detailed, and the thunder storm, with lightning and heavy rain, would not be sufficient of itself to show appellant had a pistol, or that the noise was made by a pistol. Then the state is relegated to the fact’that appellant stated to the witness Sudduth that he fired the pistol. It would hardly be sufficient to prove the case independent of some fact or circumstance that appellant had a pistol. Appellant denied this most strenuously, and stated he made no such statement to Sud-duth.

We are unwilling to affirm the judgment in this condition of the record; therefore it is ordered that the judgment be reversed, and the cause remanded.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    FURLOW v. STATE.
    (No. 3912.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    Husband and Wife <@=>304 — Desertion and N onsupport — Willfully—-Destitute.
    Defendant’s wife having a house and $300 in money when he left her, and the fact that she afterwards became destitute or in need, if she did, not being brought to his knowledge, he is not within Vernon’s Ann. Pen. Code, 1916, art. 640a, declaring a punishment for a husband who willfully deserts or fails to provide for his wife, in destitute or necessitous circumstances.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1102; Dec. Dig. <@=>304.]
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge.
    Webb Furlow was convicted, and appeals.
    Reversed and remanded.
    K. C. Barkley, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of deserting his wife in destitute and necessitous circumstances, and his punishment assessed at a fine of $100.

The statute under which appellant was indicted reads:

“That any husband who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, * * * shall be punished by a fine, etc.” Article 640a, Penal Code (Vernon’s 1916).

The law is not unconstitutional, and the information charges an offense under the law. As the record is presented, there is but one question that need be discussed. The law requires that the act of appellant shall be “willful,” and the wife must be in destitute and necessitous circumstances.

Appellant and his wife had parted several times. The testimony of both of them would convince any one that their marital relations were not pleasant. As to whose fault, this need not be discussed at this time. Appellant decided to quit his wife, and did so, remaining in the same town she lived in. Before quitting her he had deeded her one lot shown to be worth $700. After quitting her, he deeded her the home in which they were living, worth some $1,000 or $1,200. Against this were some notes for about $250 or $300. She and appellant both agree she had $300 in money when he quit her. She had been raised by appellant’s brother, who had married the aunt of appellant’s wife. After the separation, she went and lived with his brother again. While it is true that Mrs. Furlow testifies that she had spent the $300 and was in necessitous circumstances, yet it is apparent she was not quite destitute, because she had a place at which she could live — the place she lived before she married, with the brother of appellant. At least it does not appear that appellant had been put in possession of facts that would make known to him his wife was in either necessitous or destitute circumstances. He testifies that, while he had not given her any money since they parted, she admits she had never called on him for any. He testifies further, if she had, he would have given her money according to his ability.

The facts in this case, we think, do not make a case within the purview and meaning of the statute. There is no willful desertion of or failure to provide for a wife in necessitous and destitute circumstances. She was neither in need nor destitute at the time of the separation, and, if she became so after the separation, this fact must be brought to the knowledge of appellant, before he can be said to have willfully refused to provide.

Reversed and remanded.


author: PRENDERGAST, P. J.

text:
    LOOPER v. STATE.
    (No. 3890.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    Criminal Law <@=>1090 — Appeal—Questions Presented for Review.
    Where accused pleaded guilty to violating the local option law and received the lowest punishment, his appeal presents nothing for review, there being no statement of facts or bill of exceptions showing- the proceedings at trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=> 1090.]
    Ax>peal from Johnson County Court; B. Jay Jackson, Judge.
    Baylor Looper was convicted of a misdemeanor, and he appeals.
    Affirmed.
    C. C. McDonald, Asst Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant pleaded guilty, waiving a jury, to violating the prohibition law, which was in force in Johnson county as a misdemeanor. The judge assessed the lowest punishment. There is no statement of facts, if any testimony was introduced on the trial. Neither is there a bill of exceptions. There is nothing that can be reviewed. Evidently the appeal was for delay merely.

The judgment is affirmed.
      <S=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McGEE v. STATE.
    (No. 3889.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    On Motion for Rehearing, Feb. 2, 1916.)
    1. Criminal Law @=>1095, 1102 — Appeal— Statement oe Facts — Bills op Exceptions —Time foe Filing — Motion to Strike.
    A statement of facts and bills of exceptions not filed until more than 90 days after denial of new trial and sentencing of accused, notice of appeal being given at time of sentence, will be stricken on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. @=51095, 1102.]
    On Motion for Rehearing.
    2. Criminal Law @=>1092, 1099 —Appeal-Statement of Facts — Bill of Exceptions —Power to Approve.
    Where accused was tried by a judge other than the regular judge, the regular judge could not approve either the statement of facts or the bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283^-2861, 2866-2880, 2919; Dec. Dig. @=>1092, 1099; Judges, Cent. Dig. § 157-]
    3. Criminal Law @=>1095, 1102 —Appeal-Statement of Facts — Bill of Exceptions —Motion to Strike — Affidavit — Diligence.
    Where it appeared from the affidavit filed by appellant in opposition to a motion to strike out a statement of facts and bills of exceptions, which were not filed until more than 90 days after denial of new trial, sentencing of accused and the giving of notice of appeal, that the case was tried by a judge other than the regular judge, that accused waited until the return of the regular judge to the district and for some time thereafter before attempting to get him to act on the papers, and that not until after such judge had stated that he preferred the trial judge to pass on the papers did he attempt to see the trial judge in respect to the matter, such lack of diligence was shown as required that the motion bo sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. @=>1095, 1102.]
    Appeal from District Court, Tarrant County; W. J. Oxford, Judge.
    Tom McGee was convicted of assault with intent to murder, and appeals.
    Affirmed, and rehearing denied.
    Walter A. Nelson, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for an assault with intent to murder.

By law the term of court at which he was convicted could continue in session for more than eight weeks, and, as a matter of fact, as the record shows, was in session full three months. The court overruled his motion for a new trial on September 2, 1915, and then sentenced him, at which time he gave notice of appeal to this court; all of which was then duly entered. The statement of facts and bills of exceptions herein were not filed until more than 90 days after that time. Hence the Assistant Attorney General’s motion to strike out and not consider the bills of exceptions and statement of facts must be sustained. Demarco v. State, 178 S. W. 1024. This has been held many times. There is nothing in the absence of these which can be reviewed.

The judgment is therefore affirmed.

On Motion for Rehearing.

Appellant’s attorney files his affidavit accompanying his motion for rehearing, seeking to show diligence in having filed his statement of facts and bills of exceptions within the time allowed by law and the order of the court.

This affidavit, in substance, shows that Judge Oxford held one week of the term of Judge Swayne’s court in Ft. Worth, at which time this case was tried. It further shows that Judge Oxford left Ft. Worth and went to his home immediately after the overruling of his motion for a new trial and his notice of appeal, etc.; that within ten days thereafter he prepared his three bills of exception, and within a very short time thereafter ordered and requested the official stenographer to make out a statement of facts. The affidavit does not state when the statement of facts was made out. The statement of facts with the record contains not quite 36 pages in typewriting. Of course, we know, and every one knows, that such a statement of facts could have been made out within a very few days.

The afiidavit further shows that appellant awaited the return of Judge Swayne, showing that he was sick, out of the state, and absent for several weeks thereafter. It seems from the affidavit that appellant’s attorneys depended on getting his bills of exceptions and statement of facts approved by Judge Swayne; that, even after waiting these several weeks for Judge Swayne’s return, he did not see him to get him to pass on these documents for some time after his return. Under the law Judge Swayne, not having tried the ease, could have approved neither the statement of facts nor bills of exception, under both the statute and the decisions. Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517, and many other cases.

The affidavit further shows that it was not until some time after Judge Swayne’s return, the time not definitely stated, that he even saw Judge Swayne and was told by him that, as he had not tried the case, he preferred that Judge Oxford act on these papers; that he attempted to find Judge Oxford or get the papers to him. The whole affidavit shows such a lack of diligence that, under no authority, can we consider the statement of facts or bills of exception. There are a great many decisions of this court holding that, under such circumstances as shown herein, this court cannot, and will not, consider either the statement of facts or bills of exception. We cite only a comparatively few of them. Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Henderson v. State, 20 Tex. App. 304; Bryant v. State, 35 Tex. Cr. R. 395, 33 S. W. 978, 36 S. W. 79; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; George v. State, 25 Tex. App. 229, 8 S. W. 25; Monk v. State, 38 Tex. Cr. R. 602, 44 S. W. 158; Dennis v. State, 41 Tex. Cr. R. 160, 53 S. W. 111; Adams v. State, 60 S. W. 255; Shaffer v. State, 65 S. W. 1072; Ashman v. State, 74 S. W. 317; Murphy v. State, 45 S. W. 719; Bracy v. State, 49 S. W. 598; Farris v. State, 26 Tex. App. 107, 9 S. W. 487; Aistrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989; Jones v. State, 163 S. W. 75; Gowan v. State, 73 Tex. Cr. R. 227, 164 S. W. 6; Laws v. State, 73 Tex. Cr. R. 287, 164 S. W. 1015.

However, we will state that we have examined each of appellant’s three bills of exceptions and have read carefully the statement of facts. The evidence clearly establishes appellant’s guilt if we could consider the statement of facts. Neither of his bills of exceptions would present any error authorizing a reversal if we could consider them, so that in no event could this court have done otherwise than affirm this case. The motion is overruled.

DAVIDSON, J., not present at consultation.
      @»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 3923.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    Criminal Law <@=>1020 — Appeal — Amount of Pine.
    „ Under Code Or. Proc. 1911, art. 87, rf the punishment imposed in the county court on appeal be a fine not exceeding $100, its judgment is final, and further appeal will not lie.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2578-2586; Dec. Dig. <§=> 1020.]
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Ruth Smith was convicted, and appeals.
    Dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of vagrancy. The case arose in the justice court. On conviction in that court an appeal was xirosecuted to the county court, where the jury convicted and awarded appellant a fine of $100.

Motion is made here to dismiss the appeal on the ground that before the jurisdiction of this court will attach on appeal from the county court the punishment, if it be a fine, must be in excess of $100; that, unless it exceeds $100, the jurisdiction of the county court is final. This seems to be a correct proposition.. See article 87 of the Revised Code of Criminal Procedure, and numerous authorities collated in the note under that article.

The motion to dismiss the appeal for the reasons stated is granted, and the appeal is dismissed.


text:
    Ex parte LOPEZ.
    (No. 3902.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    Bail <@==>43 — Homicide—Evidence.
    Where relator was charged with murder, the homicide being committed in perpetration of a robbery, but the proof was not evident that relator was present or connected with the homicide, held, that relator was entitled to bail.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. <@=>43.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Proceedings by Lorenzo Lopez, Jr., for admission to bail.
    Application granted.
    Frank C. Pierce and Webster & Green, all of Brownsville, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator was arrested, charged with murder. The homicide was committed in the perpetration of robbery. If appellant participated in that killing and robbery, he would not be entitled to bail. This would be murder of the first degree under the prior statute, and if the facts are shown with sufficient cogency, it would still be a capital case, if the jury saw proper to so find. The serious question in the case is relator’s presence at the time and place. We are of opinion, without stating the facts, that the proof is not evident that he was present or connected with the homicide. It leaves our minds in such doubt that we are of opinion relator is entitled to bail, which is granted in the sum of $10,000. Upon the giving of this bond in the terms of the law, to be approved by the sheriff of Cameron county, relator will be discharged from custody.


text:
    LOFTON v. STATE.
    (No. 3893.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Forgery <@=>3íL-Mistake in Spelling— Variance.
    Under an indictment for forgery alleging that the false instrument purported to be the act of “Mariah Thorn,” which by copy showed that it was a bank cheek for $16 signed by “Ma-rih Thorn,” followed by the explanatory allegation that the name “Marih Thorn” was intended for and meant “Mariah Thorn,” there was no fatal variance between the purport clause and the spelling of the word “Mariah.”
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. <@=>34J

      2. Forgery <@=37 — Evidence—Check — Mistake in Spelling.
    In a prosecution for forgery of an instrument purporting to be the act of “Mariah Thorn,” the forged check, which had been copied in the indictment, and appeared to be signed by “Marih Thorn,” was admissible.
    [Ed. Note. — For other cases, see- Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. <@=37.]
    3. Forgery <@=37 — Admissibility oe Evidence.
    In a prosecution for forgery under an indictment alleging that a check for $16, purported to be the act of “Mariah Thorn,” evidence of a bank clerk that on the date of the forged check defendant presented it to him for payment as a cheek on that bank purporting to be signed by “Mariah Thorn,” that he told defendant that “Mariah Thorn” had no account at that bank, but might have an account at another hank, and that defendant on the same day presented to another witness a check for $13 on such other bank, purporting to be signed by “Etta Thorn,” and told witness that, if he would cash the check, he would pay him $3 on an account due witness, that witness telephoned to such bank to learn if the check was good, that he told defendant that “Etta Thorn” had no money in such bank, but that “Mariah Thorn” did have, that defendant told him that “Mariah Thorn” sometimes signed her name “Etta,” and that defendant took the $13 check away, and shortly returned with a $16 forged check and requested witness to cash it, was material and admissible.
    [Ed. Note. — For other eases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. <@= 37.]
    Appeal from District Oourt, Nacogdoches County; L. D. Guinn, Judge.
    Esmus Lofton was convicted of forgery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State
   PRENDERGAST, P. J.

Appellant was convicted of forgery. The indictment is in the standard approved form therefor. It alleges that the false instrument purported to be the act of “Mariah Thorn”; then alleged it was to the tenor as follows; then copied the instrument, which is a bank check for $16; and the name signed thereto is copied as “Marih Thorn.” This is followed by the explanatory allegation that the name “Marih Thorn” signed to the check was intended for and meant “Mariah Thorn.” Appellant contends that there is a fatal difference between the purport and tenor clause in the variation of the spelling of the word “Mariah” as shown above. His contention is untenable. Feeny v. State, 62 Tex. Cr. R. 588, 138 S. W. 135; Pye v. State, 71 Tex. Cr. R. 98, 154 S. W. 222; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

The uncontroverted testimony clearly shows appellant’s guilt. He neither testified nor offered any testimony. The appellant objected to the forged check when offered in evidence, because of the misspelling of the word “Mariah,” as explained above. The check was literally the same as copied in the indictment, and was properly admitted in evidence.

The court correctly admitted the testimony of John Thomas over appellant’s objection to the effect that on May 29, 1915, the date of the forged check, appellant presented to him, as a clerk of the Stone Fort National Bank, for payment, a check on that bank purporting to be signed by Mariah Thorn, that he stated to appellant at the time that Mariah Thorn had no account at that bank, but that, knowing said old negro woman, Mariah Thorn, to be a good woman, he told appellant that she likely had an account at the Commercial Guaranty State Bank, the next door. Nor did the court commit any error in admitting in evidence the testimony of S. L. Miller to the effect that on the same day appellant presented to him a check for $13 purporting to be signed by Etta Thorn on said State Bank, appellant telling Miller at the time that, if he would cash the check for him, he would pay him $3 of the amount on an account appellant was due him; this witness further testifying that he at once telephoned to said bank to learn if the check would be good. He was not permitted to tell what the bank answered him over the phone, but he testified that he at once told appellant that Etta Thorn had no'money to her credit at said bank, but Mariah Thorn did have; that appellant thereupon told him that Mariah Thorn sometimes signed her name “Etta” as well as “Mariah”; that he took that $13 cheek, left his store, was gone about an hour, and returned with a $16 forged check, as stated, and presented that to him requesting him to cash it, and stating that, if he would cash it, he would pay him $6 on his account. It was admitted by both sides that neither Mariah Thorn, nor any of her people, signed the said purported forged check, nor made it, nor authorized or consented for any person to sign or make the check. All of said testimony of said Thomas and Miller was material, pertinent, and clearly admissible testimony.

There is no error in the record, and the judgment will be affirmed.
      <§=»Eor other eases see same topio.and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 3891.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Cbiminal Law <@=666% — Teial—Permit-ting Witness to Consult Attorney.
    In a prosecution for cattle theft, the action of the court in permitting a witness under indictment for the same offense to talk with his attorney after being placed on the witness stand and before testifying was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1576; Dec. Dig. <@=666%.]
    2. Criminal Law <@=508 — Evidence—Code-eendant Under Indictment.
    That a witness is a codefendant of the defendant on trial and under indictment for the same offense does not prevent him from being used as a witness by the state if he sees proper to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dee. Dig. <@=> 508; Witnesses, Cent. Dig. §§ 244-248.]
    3. Criminal Law ®=>508 — Evidence—Code-fendant of Accused — Promise of Immunity.
    That a witness, who is a codefendant of accused and under indictment for the same offense, has been promised immunity, does not make him incompetent as a witness for the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. <@=> 508; Witnesses,. Cent. Dig. §§ 24A-248.]
    4. Criminal Law <@=>510 — Cattle Theft-Testimony of Accomplice — Corroboration.
    In a prosecution for cattle theft, it was essential to a conviction that the testimony of a witness, who was a codefendant of accused and under indictment for the same offense, should be corroborated by testimony tending to connect accused with the original taking.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ Ü24-112G; Dec. Dig. <@=o 510.]
    Appeal from District Court, Leon County; S. AV. Dean, Judge.
    Jule Smith was convicted of cattle theft, and appeals.
    Affirmed.
    J. M. Chatham, of Centerville, for appellant. C. C. McDonald, Asst.- Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at three years’ confinement in the penitentiary.

In a bill of exceptions it is contended the court erred in permitting Mattison to testify for the state, because he was a principal and codefendant in two indictments for theft of cattle in the district court of Loon county, for one of which defendant was then upon trial; that Mattison was directly or indirectly promised immunity from punishment in case he testified against the defendant; that Mat-tison was placed upon the stand as a witness, and refused to make any statement unless he was permitted to talk to his attorney and to the district attorney. The court permitted the witness to leave the witness stand and the courtroom to talk with his attorney and the district attorney, notwithstanding the witness was sworn with the other witnesses and was under the rule at the time lie last talked to his attorney and the district attorney. Shortly afterwards Mattison returned into court and gave very damaging testimony against the defendant, to wit: That he was induced by this defendant to steal and dispose of the cattle charged in the indictment; that they both left Center-ville together, got the cattle off the range in the evening, driving them to the home of witness; that the next morning, a short distance from witness’ house, appellant joined them, and they drove the cattle and put them in a pen for delivery to Mr; Melver, and did' deliver the cattle into a herd being driven by Melver and carried into Madison county, and there sold the cattle to Melver; that same was done without the knowledge or consent of the owner of the cattle.

Another clause in the bill of exceptions recites that the court erred in not compelling the attendance of Wm. Watson as witness for defendant for the reasons set up in defendant’s motion for a new trial; that said witness had been duly summoned and failed to appear, and the defendant applied to the court for an attachment for said witness to compel his attendance, but the court refused to have attachment issued for said witness, who was then in town not over 500 yards distant from the courthouse. The court approves this bill with the explanation that process was served on William Watson, an attorney, during the progress of the trial, for the purpose of showing that Mattison had been promised immunity. Watson was sick in bed and unable to attend, and assured the court that Mattison had not been promised immunity, and Mattison said he had not been promised immunity and pleaded guilty to the charge, and is now serving his sentence. There is on file an affidavit of Watson to the facts above stated, and that the proof required by defendant could not have been made by him, and was not. the truth, and no postponement was requested.

As to the action of the court in permitting the witness to talk with his attorney, the court states witness was placed on the stand, and, being under indictment for the same offense, stated to the court that before testifying he would like to ask Mr. Watson, his attorney, a question, and this was permitted to be done by the court. He retired from the courtroom, went to Watson’s office, and almost immediately returned with the announcement that he was then ready to testify. We are of opinion there was no error committed by the court in this ruling. Although a codefendant and under indictment for the same offense, Mattison could be used as a witness by the state if Mattison saw proper to take the stand and testify. Witness had legal right to consult his attorney before testifying. This rule would not apply if Mattison was sought to be used by the defendant. This is the rule provided by legislative enactment. He could turn state’s evidence and testify, with or without promise of immunity, if he saw proper so to do. We are of opinion that, even if the witness had been promised immunity, it would not render him incompetent as a witness for the state under the statute. The court’s qualification excludes the idea of any promise of immunity, because he also states the witness had pleaded guilty and was serving a sentence under the plea of guilty.

There is another ground stated in the exception; that is, the court erred in overruling defendant’s motion for a new trial, especially because the verdict of the jury was contrary to the law and the evidence. The motion further narrates the fact that Mattison was not corroborated, so as to make out the case. Of course, Mattison would have to be corroborated by testimony which tended to connect the defendant with the original taking. If this was not done, the state had failed to prove its case. The statute requires the accomplice shall be corroborated by testimony which tends to connect the defendant with the case for which he is being tried. We are of opinion from reading the testimony that Mattison was sufficiently corroborated in several ways, and especially by the witness Mclver. It occurs to us there is no necessity for detailing the testimony, but we find that the corroboration is sufficient.

The judgment, therefore, will be affirmed.
      <g=^For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes


text:
    Ex parte DUNCAN.
    (No. 3899.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Contempt &wkey;>2 — Constructive Contempt —Wiiat Constitutes.
    Where language contained in a brief for writ of error which was filed in the district court in vacation was improper and intemperate, the contempt was constructive only.
    [Ed. Note. — For other eases, see Contempt, Cent. Dig. §§ 1-3, 5, 7, 8; Dec. Dig. <S=^2.]
    2. Contempt &wkey;>54 — Punishment — Constructive Contempt — Procedure.
    Whore relator used improper language in a brief for writ of error, a copy of which was filed in the district court in vacation, the district court is not entitled to summarily punish relator on an order to show cause why he should not be adjudged guilty of contempt, made upon unverified petition of opposing counsel calling the court’s attention to the language and without affidavit filed.
    [Ed. Note. — For other eases, see Contempt, Cent. Dig. §§ 143-149; Dee. Dig. &wkey;?54.]
    Original application by John T. Duncan for a writ of habeas corpus.
    Writ issued, and relator discharged.
    Dickens & Dickens, of Austin, and A. Burleson, of Smithville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was adjudged guilty of contempt of court by Hon. Frank S. Roberts, judge of the district court of the Twenty-Second judicial district, and his punishment assessed at a fine of $50 and one day’s imprisonment in the county jail.

Relator made application to this court for a writ of habeas corpus, but inasmuch as the petition showed that the alleged contempt was certain statements contained in a brief in a civil cause on appeal, we first declined to issue the writ until it was presented to our Supreme Court, deeming it probable that that court had jurisdiction under article 1529 of the Revised Civil Statutes, as the alleged contempt grew out of proceedings had in a civil case. However, upon consideration, one of the justices of the Supreme Court indorsed on the application that the Supreme Court declined to issue the writ for lack of jurisdiction, and as there could be no doubt that this court had jurisdiction under the Constitution to issue the writ, after the Supreme Court had held it was without jurisdiction, we ordered the writ to issue, returnable on January 5, 1916. On that day the cause was heard, and it was made to appear that in the ease of Isolda Zapp v. Y. F. Mossop, in the district court of Fayette county, the said Hon. Frank S. Roberts, as judge of that court, on the 18th day of December, 1914, entered a certain judgment in favor of plaintiff. Notice of appeal was given, but no appeal perfected. However, in September, 1915, the defendant X. F. Mossop sued out a writ of error to the First Court of Civil Appeals at Galveston, and filed a brief in said cause on September 23, 1915, and also filed a copy of the brief with the clerk of the district court, in Fayette county, as he was required by law to do. It is a portion of the language used in this brief by relator, as attorney for Mossop, that is held to improperly reflect on the trial court, and for the use of which language he was held to be in contempt of court.

It is agreed that the district court of Fayette county was not in session when the brief was filed, and that the language was not used in the presence and hearing of the court; but, if the language was improper, it constituted what in law is termed constructive contempt. Relator earnestly insists that the language used was in no wise intended to reflect on the trial judge, but was intended to be but an earnest plea for his client. As Hon. Frank S. Roberts has held said language to be contemptuous, we will not discuss that question, but only inquire into whether or not the necessary and proper steps were taken to confer jurisdiction on the judge of the Twenty-Second judicial district to adjudge relator guilty. If the proper steps were not taken to confer jurisdiction on that court, relator is entitled to be discharged.

After the brief had been filed, Mr. C. D. Krause, an attorney of the Fayette county bar, having his attention called to the brief (it also using language that he contended improperly reflected on him), addressed a petition to the judge, calling his attention to the language used in the brief. Upon the filing of this petition, Judge Roberts ordered process to issue summoning relator to appear before him and show cause why he should not be adjudged to be guilty of contempt for making use of such language. On the day named relator appeared, and filed an answer, first pleading that the court had no J jurisdiction, in that the petition filed was not sworn to by Mr. Krause, nor any other person. We are of the opinion this plea should have been sustained, and this court so held in Ex parte Foster, 44 Tex. Cr. R. 425, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866, and Ex parte Landry, 144 S. W. 962. In this latter case Judge Davidson exhaustively reviewed the authorities and held:

“If the acts or conduct occur in the presence or hearing of the court, it may deal summarily with the contemnor without a written statement charging the contempt; but, where the contempt does not occur in its presence and hearing, the better practice is to present the contempt by written charges, which should bo sworn to, unless presented in writing by the district attorney in his official capacity.”

State’s counsel contends that we were wrong in so holding, in an able brief, and that those decisions should not be followed. In deference to the earnest insistence, we have again investigated this question, and we think the great weight of authority is with the holding of the court. In Rapalje on Contempt, § 93, it is said:

“In the United States the almost universal practice in this matter is to present to the court an affidavit setting forth the facts and circumstances constituting the alleged contempt, sworn to by some person who witnessed or had knowledge of the offense. Unless such an affidavit be presented, process will not be granted. The issuing of process without the filing of the proper affidavit is erroneous, and the error is not cured by the subsequent filing thereof.”

Of course, this rule only applies when the language used, or conduct complained of, was not in the presence and hearing of the court; for where the contemptuous acts or conduct are committed in the presence of the court, he may inflict summary and immediate punishment.

In State v. Blackwell, 10 S. C. 35, it was held: It is a fatal objection to a rule to show cause why a party should be attached for contempt for an offense not committed in the presence of the court that it was issued without an affidavit setting forth the facts. In Ency. of Pleading & Practice, vol. 4, page 779, the rule is stated:

“The almost universal method by which contempt proceedings are begun is by an affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court’s immediate presence an affidavit is essential.”

In the case of Wyatt v. People, 17 Colo. 261, 28 Pac. 964, the Supreme Court of Colorado says: *

“Constructive contempts — those not committed in the presence of the court — must of course in some regular and legitimate way be brought to the court’s knowledge; until this is done the process of attachment will not issue. And in Gandy v. State, 13 Neb. 445 (14 N. W. 143], it is said that such proceedings must be commenced by a sworn information. But the practice generally recognized throughout the United States, and according to Blaekstone frequently followed in England, is for some proper official or interested party to set forth by affidavit the material facts relied on. A little contrariety of opinion exists as to whether the warrant of commitment or the order of court must recite the jurisdictional facts. But the overwhelming weight of authority in this country sustains the proposition that the affidavit upon which the proceeding for a constructive contempt is based must state facts which, if established, would constitute the offense, and that, if the allegations of the affidavit are not sufficient in this respect, the court is without jurisdiction to proceed.”

The Supreme Court of California, in Batchelder v. Moore, 42 Cal. 412, says:

“When the alleged contempt is not committed in the presence of the court, an affidavit of the facts constituting the contempt must be presented, in order to set the power of the court in motion.”

In Whittem v. State, 36 Ind. 213, it is held:

“The proceeding against a party for a constructive contempt must be commenced by either a rule to show cause, or by an attachment, and such rule should not be made or attachment issued, unless upon affidavit specifically making the charge.”

In the case of State v. Henthorn, 46 Kan. 616, 26 Pac. 937, it is held:

“A careful examination of the authorities satisfies us that in all cases of constructive contempt, whether the process * * * issues in the first instance, or a rule to show cause is served, a preliminary affidavit or information must be filed in the court before the process can issue.”

In the case of In re Wood, 82 Mich. 82, 45 N. W. 1116, it is said:

“Those contempts not committed in its immediate view and presence must be brought before the court by affidavit of the persons who witnessed them, or have knowledge of them; and a rule is made, based upon such affidavit, either that an attachment issue, or that the accused show cause at a certain time and place why he should not be punished for the alleged contempt” — citing 4 Black. Com. 286; 2 Hawk. P. C. 222; 1 Tidd, Prac. (4th Am. Ed.) 88, 478, 479; In re Judson, 3 Blatchf. 148, Fed. Cas. No. 7,563; 6 Dane, Abr. page 528, c. 193, art. 27; Com. v. Dandridge, 2 Va. Cas. 408; State v. Matthews, 37 N. H. 450; Crow v. State, 24 Tex. 12.

In the case of State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584, it is held:

“A court has no authority to proceed against a party for contempt on account of acts not committed in the immediate view and presence of the court, unless the facts constituting the contempt are shown by an affidavit presented to the court.”

See, also, In re Nickell, 47 Kan. 734, 28 Pac. 1076, 27 Am. St. Rep. 318; Flannery v. People, 225 Ill. 69, 80 N. E. 60; Thomas v. People, 14 Colo. 256, 23 Pac. 326, 9 L. R. A. 569; Hurley v. Commonwealth, 188 Mass. 447, 74 N. E. 677, 3 Ann. Cas. 757; and cases cited in those authorities.

As no affidavit, nor petition sworn to, was filed in this case, the jurisdiction of the court was not properly invoked, and therefore the relator is entitled to be discharged; and it is so ordered. We do not deem it necessary to discuss the other questions presented.

Relator is discharged.
      <S=^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    VENN v. STATE.
    (No. 3897.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Intoxicating Liquors <@=>239 — 'Violation on Local Option Law — Alibi — Instructions — Evidence.
    Where, in a prosecution for violating the local option law, the state’s principal witness testified that he bought whisky from defendant at a certain time and place, and several witnesses for defendant testified that he was at a different place at that time, the refusal of requested instructions on alibi was error.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. <@=> 239.]
    2. Witnesses <@=541-L-Corroboration — Testimony op Grand Juror.
    In a prosecution for violating the local option law, the testimony of a witness that he was foreman of the grand jury which indicted accused, that the state’s purchasing witness testified before that body after being confined in jail for refusal to testify, and that his testimony that he bought whisky from accused was a surprise to the witness, and not the result of being forced or led by the grand jurors, was improperly admitted; it not being proper to corroborate the testimony of the purchasing witness in this manner.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dee. Dig. <@=>414.]
    3. Cbiminal Law <@=>1137 — Evidence—Mat-tees Fibst Adduced by Accused.
    In a prosecution for violating the local option law, accused could not predicate error on the admission of testimony that there was much drinking and drunkenness at the time and place of the alleged sale, where he had adduced testimony as to the same matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. <@=> 1137.]
    4. Criminal Law <@=>1137 — Evidence—Matters First Adduced by Accused.
    Where accused elicited testimony that the prosecuting witness had run off and forfeited his attachment bond as a witness, it was not error to permit the county attorney to prove by the witness why he had forfeited such bond.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. <§=> 1137.)
    5. Criminal Law <@=51137 — Evidence—Matters First Adduced by Accused.
    Permitting the sheriff to testify that, when he arrested defendant, he had had in his possession for about two years a warrant for defendant’s arrest in a felony case, and that he had been unable to arrest defendant because he was constantly on the dodge, was not error, where evidence as to such matter was first introduced by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. <@=> 1137.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Willie Venn was convicted of violating the local option law, and appeals.
    Reversed and remanded.
    Sanders & Florence, of Gilmer, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law ; his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

He introduced testimony showing clearly an alibi. The state’s evidence was made by a witness who stated that he had bought whisky from appellant, at Union Grove about 8:30 or 9 o’clock in the morning. Appellant proved by several witnesses that at that time he was at another place several miles distant, some of whom went with him from his home to the point designated, and by other witnesses who were on the ground at that point. There seems to have been picnic occasions at both points; these places being three or four miles apart. Appellant’s alibi covers practically from 8 o’clock in the morning until 4 o’clock in the evening. The matter was properly presented, and special requested instructions presenting the alibi were refused. The matter is timely and properly reserved and presented. This was error. This was his main defense. Of course, the other matter was in the record that he did not sell because of the fact he was not at the place where the sale is said to have occurred. This charge should have been given.

A bill of exceptions was reserved to the remarks of the county attorney in his closing argument. This should not have occurred, and will not, we suppose, upon another trial, and is therefore not discussed.

Another bill recites that while Ferrell was testifying he stated that he was foreman of the grand jury, and that Weaver, the state’s purchasing witness, testified before that body; that the grand jury was trying to induce him to tell about buying whisky from bootleggers and if he had bought from certain parties. Witness first stated he did not remember. Finally, after being pressed, he said he bought whisky, but would not tell from whom. The witness was then carried before the district judge and finally sent to jail. After spending two days and nights in jail, he was brought before the grand jury, and then told of several instances where he had 'bought whisky. These sales were by several different persons, one of - which was the quart he bought from appellant at Union Grove. The witness says:

“We did not force him or lead him to tell it. In fact, I was surprised when I learned he had bought whisky from the defendant. We were not inquiring or him of sales made by the defendant.”

Various and sundry objections were urged to all this. This testimony, we think, was not admissible. This witness could not be corroborated in this manner. This question was suggested by the bill of exceptions. Upon another trial this testimony should not be permitted to go to the jury.

Another 'bill recites Mr. Bennett testified there was a great deal of drinking and drunkenness in and around Union Grove that day, meaning the .time and place of the alleged sale. Various objections were urged to this. The court approves this with the explanation that the testimony of Ben White with reference to the same matter had been adduced by defendant as well as defendant in direct examination of the witness Bennett, and all this matter should not have gone before the jury, but, inasmuch as the defendant first introduced the matter, we are of opinion that the bill does not show reversible error.

Another bill recites that the prosecuting witness Weaver was asked toy defendant if he did not run off and forfeit his attachment bond in a district court case growing out of some cases “turned in by him” before the grand jury, whereupon the county attorney asked this question: “Why did you run off and forfeit your attachment bond as a witness?” Witness answered: “Because I was afraid of some of the characters I was dealing with.” Under the decisions it seems that this testimony, having been brought out by the defendant, or the fact rather that he ran away and forfeited his attachment bond in regard to a district court case, would justify the county attorney in inquiring into the reasons why he forfeited such attachment bond. It seems it did not apply to this case, but the defendant elicited the fact that witness had forfeited this attachment bond. We are under the impression that under such circumstances the county attorney would be entitled to prove by him why he forfeited the bond. The matter had nothing to do with, this case in any way, tout, inasmuch as the' defendant brought out the matter, it became the subject of cross-examination by the state.

Another bill recites that by the witness Buie, sheriff of Upshur county, the state was permitted, over the objection of appellant, to show that at the time he arrested appellant in this case he had in his possession a warrant for the defendant for about two years in a felony case against him; that he also had the warrant in the felony case at the time the county attorney and others shot at Venn when he ran from the officers, but he was constantly on the dodge was the reason he had not arrested him. The court explains this bill by stating that this evidence was first introduced by defendant, and the testimony here complained of was admitted on redirect examination. It would seem that under this statement there was no error. Where one party brings out a fact, whether legitimate or illegitimate, and it is permitted to go before the jury, the other side may break the force of that as best he may. Much of this testimony was inadmissible, but, as presented by the bill of exceptions and explained by the court, it seems not to present reversible error.

It occurs to the writer that the testimony is hardly sufficient to convict, but he does not care to enter into a discussion of the matter or state the evidence. ■ Appellant, if the various witnesses can be believed, was not at Union Grove gathering at the time indicated by the state’s witness Weaver. If he had been at Union Grove at that time, some one ought to have seen him besides this witness. There are several witnesses who testify positively that he was not at Union Grove, and had gone from his home to Mineral Springs and spent the day, arriving there about 8:30 in the morning, or about that time, and was seen toy various parties there during the day and as late as 4 o’clock in the evening in swimming. Those witnesses who accompanied him from his home to Mineral Springs testify that he had no whisky; they were horseback, and they saw no evidence of his having any whisky, and none was exhibited by him during the day. They exclude the fact that he was at Union Grove. This is the opinion of the writer.

The judgment is reversed, and the cause remanded.
      <S=>For other eases see same topic and KEY^NUMBER in all Key-Numbered Digests and Indexes

      (g=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHULTZ v. STATE.
    (No. 3908.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Homicide <&=o310 — Instructions—Aggravated Assault — Evidence.
    Where the evidence showed that A. resisted the attack of defendant with his fists, but at no time sought to use any weapon upon defendant, that defendant then tried to get A. to come out of a saloon and renew the difficulty, that A. declined, that defendant left saying that he was going to get his gun and shoot him, that he waylaid A. on Ms way home with others, reminded him that he was going to shoot him, and shot away his hand and put out his eye while he was dodging behind his horse, there was no error in refusing to submit the issue of aggravated assault.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. <®^310.]
    2. Homicide @==>230 — Assault to Murder-Intent — Sueficiency oe Evidence.
    Evidence held to show that defendant, when he shot and injured another, had a specific intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 478; Dec. Dig. @¿>230.]
    3. I-Iomioide <S^>90 — Nature oe Instrument Used — “Deadly Weapon.”
    A gun used as a firearm within carrying distance and at such range that it shot off a hand of the prosecuting witness and put out one of his eyes, was a “deadly weapon.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. @=>90.]
    Appeal from District Court, Goliad County; John M. Green, Judge.
    Fred Schultz was convicted of assault to murder, and he appeals.
    Affirmed.
    G. E. Pope and Fowler & Fowler, all of Goliad, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

The evidence would show that appellant, Frank Zaiontz, D. C. O’Neil, Oliver Magrew, Arthur Hardt, 'Hugo .Speiss, and appellant’s brother, Albert ’Schultz, all met at the saloon of Henry Dobsky, at Dobskyville, in Goliad county. Hugo Speiss called Frank Zaiontz a “rabbit.” Words followed, when appellant offered to loan Speiss a knife, saying he had two knives. Words then ensued between appellant and Zaiontz, and appellant started towards Zaiontz, and Zaiontz knocked him down. They were separated, the saloon keeper telling them they could not fight in the saloon. Appellant went out in front of the saloon and dared Zaiontz to come out there. Zaiontz did not go, when appellant left, and in leaving said to Zaiontz he had better go on home as he, appellant, was going home and get his gun and shoot him, or kill him. About an hour after this O’Neil, Magrew, Albert Schultz, and the prosecuting witness, Zaiontz, started home; O’Neil and Magrew being in a buggy, while Albert Schultz and Zaiontz were horseback. While on their way home they came across appellant, who stepped from behind a tree and said to Zaiontz, “Frank, did I not tell you I was going to shoot you?” Zaiontz got off his horse and endeavored to keep his horse between him and appellant; appellant endeavoring to get in position to shoot. He finally shot, over the horse, and shot off the right hand of Zaiontz; some shot striking him in the face and putting out one of his eyes.

Appellant, on cross-examination of the state’s witnesses, endeavored to prove that Zaiontz undertook to use an axe handle, but all the witnesses say that the axe handle was tied to Zaiontz’s saddle, and he made no effort to use it.

Appellant introduced no evidence, except to show a good reputation, and that he had not theretofore been convicted of a 'felony, in an effort to secure a suspension of the sentence.

No exceptions were reserved to the introduction of testimony, but appellant excepted to the court’s charge because he failed to submit aggravated assault, and because the court refused to give appellant’s special charge presenting that issue.

Appellant having brought on the difficulty between himself and Zaiontz, some saying with a stick drawn, at the time Zaiontz knocked him down, it would be very doubtful if aggravated assault would have been raised if he at that time shot Zaiontz. A man cannot himself raise a difficulty and then have the offense reduced to manslaughter because of the state of his mind, unless he is driven to the extremity of killing to save his own life. Certainly all Zaiontz did in this instance was to resist the attack of appellant with his fists, and at no time sought to use any weapon upon appellant. Appellant tried to get him to come out of the saloon and renew the difficulty. Zaiontz .declines, and appellant leaves, telling him he is going to get his gun and shoot him. He waylays Zaiontz, and while Zaiontz is on his way home with others shoots him at a time when all Zaiontz is doing is dodging behind his horse.

The facts do not raise the issue that if Zaiontz had .been killed appellant might not have been guilty of any higher grade of offense than manslaughter, and the court did not err in refusing to submit the issue of aggravated assault. Cole v. State, 35 Tex. Cr. R. 385, 33 S. W. 968. There is no evidence raising the issue that appellant did not intend to kill, but the evidence and circumstances attendant upon the shooting show a specific intent to kill.

Neither was there error in the court instructing the jury, “A gun used as a firearm within carrying distance is a deadly weapon,” under the facts in this case. Mr. Branch, in his work on Criminal Law, correctly states the rule to be:

“Not error to define a deadly weapon as a gun used ’within carrying distance, if proof shows that defendant shot the injured party at close range.” Juley v. State, 45 Tex. Cr. R. 391, 76 S. W. 468; Kosmoroski v. State, 59 Tex. Cr. R. 296, 127 S. W. 1056.

The judgment is affirmed.
      <S=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOLAN v. STATE.
    (No. 3887.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Witnesses <@=348—Competenox—Convic-tion of Misdemeanob.
    A conviction for a misdemeanor did not render the convict incompetent as a witness for the state in a criminal ease.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. <@=348.]
    2. Witnesses <@=349— Competency—Conviction oe Felony—Pabdon.
    The granting of a pardon eight years after a witness for the state had served his full term on conviction for a felony, on the state’s request and to relieve him of disabilities so that he might testify for the state, was a matter for the Governor, over which the Court of Criminal Appeals had no control, so that it could not hold, on defendant’s objection, that such witness was incompetent.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 116-118; Dec. Dig. <@=349.]
    3. Ceiminal Law <@=31120—Appeal—Exclu-sion oe Evidence — Setting out Testimony.
    In a prosecution for robbery, where a bill of exceptions showed that a witness was an officer, that he had arrested the prosecuting witness and another on a charge of intoxication on the night before the alleged robbery, that the prosecuting witness had spent the night in the city jail, that, after such witness had testified that they had been searched before being locked up, and about $5 and a quantity of liquor found on prosecuting witness, that they always searched prisoners, defendant attempted to prove by such witness that if the prosecuting witness had some $55 on him when arrested it would have been found, that objection thereto was sustained, but did not show the object of such testimony, nor the evidence that the witness would have given thereon, the court could not determine whether its exclusion was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. &wkey; 1120.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Pat Solan, alias Bert Williams, was convicted of robbery, and he appeals.
    Affirmed.
    Ralph P. Mathis, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of robbery, his punishment being assessed at five years’ confinement in the penitentiary.

There are two bills of exception incorporated in the record. Charles Johnson was the alleged injured party and witness on the trial. The bill of exceptions recites that he was permitted to testify in regard to the robbery over appellant’s objection because Johnson’s testimony shows he was in jail at the time of the trial on a misdemean- or charge of swindling, and had pleaded guilty, tie testified that he was an ex-convict, and that he had served two years in the penitentiary, and that he had not been pardoned until eight years after he had served his full term, and then only for the purpose of being permitted to testify against defendant; and, further, that the pardon of this witness did not reach the county of trial, nor was it filed with the papers in this ease until the 2d day of September, one day after this cause was set for trial; and that the pardon was issued not for good behavior of the witness, and not to restore the witness’ rights, but because the state had so requested such pardon in order that he might be permitted to testify against defendant, and that because the state had so requested such pardon, and had secured such pardon, he, Charles Johnson, was biased in his testimony in favor of the state and against the defendant. These matters did not render Johnson incompetent. The misdemeanor conviction did not render him incompetent as a witness. The granting of the pardon to Johnson in the felony for the purpose of relieving him of disabilities so that he might testify in the case was a matter for the Governor, over which this court has no control. This question was decided in Martin v. State, 21 Tex. App. 1, 17 S. W. 430. The matter is thoroughly discussed in the Martin Case. It is unnecessary to go into a further discussion of it.

There is another bill of exceptions which shows that the witness Roll was an officer of the city of Wichita Falls, and that he and another officer arrested Johnson, the prosecuting witness, and one of his friends, on charges of drunkenness, and after the defendant had proved that this arrest was made the night before the alleged robbery, and after the defendant had proved that said Charles Johnson spent .that night in the city “cooler,” and was not given his liberty until the morning of the alleged robbery, and after the witness Roll had testified that these men had been searched before they were locked up, and had found only about $5 and a quart of booze on Johnson, and after he had testified that they always search the prisoners, “then it was that the defendant attempted to prove by this witness if the said Charles Johnson had some $55 on him at the time he was arrested would he have found it; then it was that the state objected, and the court sustained the objection.” The object and purpose of this testimony is not stated, nor is the evidence that Roll would have given in regard to the matter stated. What the witness Rtoll would ¡have testified as to whether he would have found the money or not if it had been on him should have been stated, or something to show that he would have been in position to have found the money on the party, if it was on him, at the time they searched him as well as the purpose for which it was introduced and the connection shown so as to make it material in order that this court might decide the question as to whether there was error or not.

The evidence, we think, is sufficient to sustain the verdict of the jury, and for this reason it will not be disturbed.

The judgment will be affirmed.


author: PB.ENDEiR.GAST, P. J.

text:
    EITEL v. STATE.
    (No. 3896.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    1. Criminal Law <®^1099 — Appeal—Statement op Facts — Approval and Filing. •
    Where within the 20 days after adjournment allowed by the court for filing statement of facts appellant and the county attorney, being unable to agree, the judge undertook to prepare and file one, and one was filed, though it was not specifically certified or approved by the judge till later, it will be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <@=> 1099.]
    2. Assault and Battery <&wkey;>64 — Guardian and Ward — Emancipation.
    A guardian having for a long time had no care or custody of his ward, but having emancipated her, as concerns care, custody, and control of her, cannot justify an assault and battery on her, on the ground of the relationship and the right to punish.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 90-92; Dec. Dig. &wkey;> 64.]
    3. Assault and Battery <&wkey;66 — Verbal Provocation.
    By express provision of Pen. Code 1911, art. 1016, verbal provocation does not justify an assault and battery, but can be considered only in mitigation of punishment.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 94, 95; Dec. Dig. <&wkey;> 66.]

      4. Ceiminax, Law <&wkey;364, 368 — Res Gestae.
    What defendant, and his wife in his presence, said immediately after his assault was res gestee thereof, and admissible as original testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 806, 808-810, 812-818, 821; Dec. Dig. &wkey;364, 368.]
    Appeal from County Court, Upshur County; W. H.'McClelland, Judge.
    W. M. Eitel was convicted, and appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PB.ENDEiR.GAST, P. J.

Appellant, an adult male, was indicted and convicted of an aggravated assault and battery upon Katie Lee Carrington, a female, and Ms punishment assessed at the lowest allowed by law, a fine of $25 only.

The case was tried at the May term of the county court, which adjourned on May 29th. The court by proper order allowed 20 days after adjournment to file the statement of facts and bills of exceptions. The bills were filed within that time.

The statement of facts is in the record. The appellant has made a motion in this court to strike out and not consider it and then reverse the case because he was deprived of it. His attorney made an affidavit in the court below, which is contained in the_ transcript, and also makes substantially the' same affidavit in this court, as a part of his said motion. Without reciting the full contents, it shows this state of fact: That in about ten days after the court adjourned he prepared a statement of facts in duplicate and sought the county attorney for the purpose of getting an agreement thereto. There was some delay in seeing the county attorney, and after he did see Mm there was some other delay caused by the county attorney desiring time to consider Ms statement. However, within the 20 days he and the county attorney went over the statement of facts he had prepared and did not agree thereto. The county attorney within the 20 days took the copy left with him and made erasures and interlineations therein to conform to Ms contention of what the testimony was. The county judge was informed by appellant that he and the county attorney could not agree upon a statement of facts, and thereupon requested Mm to prepare such statement and file it within the time. It seems the judge undertook to do that, and we gather that he took as a basis for his statement of facts that which the county attorney had prepared. Either he or the county attorney — perhaps the county attorney— filed that statement with the clerk, who placed Ms file mark thereon within said 20 days. At the time it was filed the county judge had not certified nor approved the same. He did so specifically, however, some weeks later, all of which appears in the transcript.

Under these circumstances, this court cannot strike out the statement of facts and reverse the ease, because appellant was deprived thereof, but will consider it. It has been the uMform holding of this court in a great many cases that, under such circumstances as detailed, this court will consider the statement of facts. Gibbs v. State, 70 Tex. Cr. R. 278, 156 S. W. 687; Jones v. State, 147 S. W. 587; Villa v. State, 63 Tex. Cr. R. 537, 141 S. W. 104; Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591; Johnson v. State, 71 Tex. Cr. R. 392, 159 S. W. 848; Solis v. State, 174 S. W. 343. See, also, section 41, Branch’s Crim. Law, where a considerable number of other and earlier cases which are in point are cited. Also see note 20, p. 837, of Vernon’s Ann. C. C. P., for a large number of other earlier cases in point.

This rule is not in conflict with the statute and the other large number of decisions by this court where statements of facts or bills of exceptions are filed too late through the negligence of the appellant or Ms attorneys. The two rules are equally applicable to the given state of facts to which .they apply. ■

We think it necessary to give the substance of the material testimony. Some of the facts are established by uncontroverted testimony. Other of the material facts are sharply disputed. Miss Katie Lee Carring-ton and her young brother, Troy, were left orphans when she was 6 years of age. For several years she lived with, and was taken care of by, her grandparents. When she was about 15 years old, her uncle Lark Carring-ton was appomted guardian for both the persons and estates of herself and brother. This uncle soon afterwards died. Thereupon appellant, another untie, by marriage, was appointed guardian of their persons and estates. She was sent off to school by her respective guardians until about June, 1911, when she went to appellant’s to live with him and his wife. Appellant and his wife both, in substance, testified that Miss Car-rington was hard to get along with, and they both soon saw that they could not get along with her. Appellant thereupon told her brother Troy that he thought it was Ms duty to take her and try to get along with her. Thereupon both of them left Ms house and lived together, housekeeping, and made a crop for themselves. Appellant refused to longer keep her. He claimed she and her brother soon fell out and could not get along together; that her brother went off and got a job and stayed until he got sick, when he returned to appellant’s, where he remained sick until he died; that Miss Carrington, when she and her brother separated, went oft to herself and got a job. The uncontra-dicted testimony shows that thereafter she looked out for herself exclusively, appellant having nothing to do either with her control, maintenance or support, and that she never at any time after she left his house about a year and a half before-the alleged assault therein and never thereafter lived with him at all. When appellant and his wife realized that Troy was very sick and would doubtless soon die, his wife telephoned to Miss Car-rington at Terrell, where she was then working for herself and making her own living, the condition of her brother, and that, if she wanted to see him before he died, to come and do so. Miss Carrington thereupon accepted this invitation, went to appellant’s as a visitor to her sick brother, and remained with him for a few days until he died and was buried. Appellant was not at his home, but was at work away therefrom, when she reached his home, which was Thursday before her brother died the following Wednesday. Appellant did not reach his home after she arrived there until Saturday evening, about night.

The case was tried May, 19, 1915. Miss Carrington testified, and this was not disputed, that she was 21 years of age in February before. This would make her nearly 19 years of age when the alleged assault and battery was committed upon her. She testified that for the 2 years prior to this trial she had taught school. Some time before her brother died .appellant wrote her a letter when she was at Terrell, telling her, in substance, that the doctor advised him to send her brother to a sanitarium for tubercular patients. She answered this letter at the time, and said to him therein, in substance, that, if her brother had not been beaten out of his property by appellant, he would have had plenty of money to have gone to a higher altitude or to some other place for his health, and not have been a charge upon the state in a tubercular sanitarium. After supper the night of the assault appellant went to a lodge meeting, and did not return home until 10 o’clock that night. Miss Carrington testified that he was drinking. She and others said they smelt whisky on his breath. Mr. Petty, who was at the lodge hall with him, testified that appellant was drinking; that he smelt his breath, and on going back home he staggered. Appellant and his wife denied that he was drunk. His wife testified that she fixed him a whisky toddy before he went to the lodge, and that he drank no more. Miss Carrington said: That, after he returned from the lodge, she, his wife, and he were sitting in the room across the hall from where her brother Troy was, engaged in conversation. That he asked her why she had written him such an insulting letter. She replied that he might be all right, but she had no confidence in her aunt, his wife, and would not believe anything she would say. He thereupon caught her by the arm, pulled her out of the chair, and slapped her. That she then screamed, ran out of the house, and went to a neighbor’s about a quarter of a mile away. That in running out of the room to escape him she ran over a chair or something. All the testimony by appellant and his wife, as well as all the watchers with the sick man, shows, in substance, that appellant and his wife pursued Miss Carrington and attempted to find and catch her. Mr. Howell testified: That he was in the room with the sick man, and, when he heard the racket, went out into the hall and met appellant and his wife and inquired of them what was the matter. Mrs. Eitel said to him: “This is my business. Go on back in the room and wait on the sick.” That she also then said appellant slapped Katie, and, if he had caught her, he would have stamped her through the floor. That they all then went out into the yard looking for Miss Carrington, and that appellant then said that, if he could find her, he would “kick her damned ass over tire fence.” Mr. Moore, another one of the watchers with the sick man, said that, when he heard the racket, he went out to see what was the matter, and, while appellant and several of the others were out in the yard looking for Katie Lee, appellant stated, if he could find her, he would “kick her damned ass off of the place.” Mr. Petty, another one of the watchers, who also went out at the time, said: That, when he got to the door of the hall, appellant said to him: “This is not your affair. Go back and attend to the sick.” That, while out in the yard, appellant said, if he could find her, he would “stamp' the fatal sh-1 out of her.” Appellant and his wife denied that he slapped Katie, and his wife denied that she told Howell that, if appellant caught her, he would stamp her through the floor, she claiming that she told him appellant and Katie had had a spat, and she denied telling Mr. Moore that appellant said he would stamp her through the floor. Appellant himself testified that he must have lost his head and guessed he used some language that was improper. He admitted he got mad, but did not think he used the language the witnesses said he used, but he was mad when she ran out and screamed without any cause. The testimony further shows that, when all this occurred, her brother was agitated and cried about it and sent some of the friends to the neighbor’s for Katie and induced her to return, saying that he would protect her as long as he lived.

The court’s charge was in no way objected to at any time by the appellant so far as this record shows. After charging what an assault and battery' was in substantially the language of the statute, and, which is usual in such cases, further told the jury that an assault and battery becomes aggravated when committed by an adult male upon the person of a female. Then gave this paragraph:

“Violence used to the person does not amount to an assault or battery in the following cases: When committed in the moderate restraint of parent upon a child, guardian upon the ward, or teacher upon the pupil. Whether the punishment is moderate or excessive must necessarily depend upon the age, sex, condition, and disposition of the child or ward, taken in connection with all the attending and surrounding circumstances, as well as the intent of the one inflicting the punishment.”

Next told, the jury the punishment for an aggravated assault and battery, and then submitted the case to them, requiring that, if they believed from the evidence beyond a rasonable doubt that appellant at the time alleged committed an aggravated assault and battery upon Miss Carrington, to find him guilty and assess the proper punishment. He also told the jury the burden of proof was on the state, and that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt,, and that, if they had a reasonable doubt, to acquit him.

Appellant complains that the court erred in refusing to give two special charges requested by him. In one of these he would have told the jury that the proof showed that at the time of the assault appellant was the legal guardian of Miss Carrington; that violence used to the person of another does not amount to an assault and battery in the exercise of the right of moderate restraint or correction of the parent over the child and the guardian over the ward; that a guardian has the same right of restraint or correction over the ward as the parent over his child; then that, if appellant took hold of or slapped Miss Carrington, yet, if they find he did so in the exercise of his right of moderate restraint or correction, to acquit him, or, if they had a reasonable doubt whether he did so in the exercise of his right of moderate restraint or correction, to acquit him, and, in determining this issue, that appellant is not presumed to be guilty from the commission of the offense, but the law presumed that he had the right to inflict the punish-, ment, and they would judge of his guilt by his acts, conduct, and statements made at the time, taking into consideration the acts, and conduct of Miss Carrington, and that his guilt is not measured alone by the severity of the punishment, but by his intention in inflicting it, and, although they find the punishment was more severe than it should have been, yet, if done in good faith by him, without intention to injure, but to compel respect for his rightful authority as guardian, then they must acquit him. The other of his requested charges would have told the jury that an aggravated assault and battery committed in the moderate restraint of a parent upon a child, guardian upon the ward, or teacher upon the pupil is no offense; then, if they believed from the facts that the appellant at the time he pulled Miss Carrington from the chair and slapped her, if he did slap her, was the legally appointed guardian, and if they further believed, viewing the facts and circumstances from his standpoint at the time, his restraint or correction of Miss Carrington was moderate, or if they had a reasonable doubt that it was moderate, and that he used no more force or violence than was necessary to subject her to submission or chastisement for disobedience, if any, that said chastisement or slapping would not be a violation of the law and acquit'him; further, that in this class of cases his intention is the principal ingredient of the offense, and, if he had no intention of using more restraint or punishment than was necessary viewed from his standpoint, or if they had a reasonable doubt that he used no more restraint than was necessary, to acquit him. In our opinion, neither of these charges was the law of this case nor applicable thereto, and neither of them should have been given.

The Revised Civil Statutes (arts. 4122, 4123) prescribe that the guardian of the person is entitled to the charge and control of the person of his ward and the care of his support and education, “and his duties shall correspond with his rights”; that it is the duty of the guardian to take care of the person of such minor and “to treat him humanely.” The converse of this is equally true, that, where the guardian does not have charge and control of the person of his ward, he has no right of moderate restraint or correction of his ward. Mr. Bishop, in section 885, vol. 1, of his Criminal Law, says:

“Not every guardian has the custody of the ward, and no reason appears why one without it should have the right to chastise.”

Mr. Wharton, in his Criminal Law, vol. 2, § 828, in treating of the right of even a parent to chastise his child, says:

“The same doctrine applies to persons standing in loco parentis. But a ‘child’ in this sense is not merely a minor, but must be a minor under tutelage. A minor mho is emancipated cannot thus he brought into subjection." (Italics ours.)

Judge Moore, in Gorman v. State, 42 Tex. 222, said:

“If the minor children of the wife are recognized and treated as members of the family of their stepfather, and are supported and maintained by him, there can be no doubt that he stands to them in loco parentis, and may exercise the control and authority of a parent over them.”

Chief Justice Roberts, in Stanfield v. State, 43 Tex. 168, in discussing an aggravated assault of an adult male upon a child, of the right of moderate correction said:

“If it was not moderate, but excessive, he was guilty as charged of an aggravated assault and battery by having exceeded the boundary of his legal right as guardian under the law, and placed himself in the attitude of a stranger, and not a parent to the child.”

Judge Roberts also, in State v. Stephenson, 20 Tex. 153, said:

“It has ever been held that it is incumbent on the parent, guardian., and master of an apprentice to show the circumstances and relations which would justify an act of violence. And from this it would necessarily follow that they need not be negatived by averments in the indictment.”

Our Statute (article 1009, P. C. 1911) on the subject of assault and. battery says:

“When an injury is caused by violence to the person, the intent to injure is presumed; and it rests upon the person inflicting the injury to show the accident or innocent intention.”

In Inglen v. State, 36 Tex. Cr. R. 473, 37 S. W. 861, it was shown that Inglen got drunk, went to his house, and at night drove therefrom his stepdaughter, 13 years óf age, and other members of his family. This child, thus driven from home, went to a grocery store about 150 feet away and was standing on the steps of the store, when Inglen approached her and ordered her to return home. She refused. 1-Ie thereupon slapped her in the face with his open hand. The girl testified he did not slap her down. Others saw it. One testified that he did slap her down. 1-Ie and others also testified that the lick caused blood to flow from the child’s mouth. The jury convicted him, and assessed his punishment at a fine of $500 and 15 months’ confinement in the county jail. He attacked the verdict as excessive and claimed under the statute he had the right to correct and punish her as a parent. Judge Hurt said:

“While defendant may have had the right to order her home, under the circumstances of the case, he had no right to assault her because she did not obey him, for, by his own conduct, he justified a refusal on the part of the girl to go home.”

And further:

“Appellant was guilty of an unprovoked, violent assault and battery upon the girl. It was unnecessary, and, in fact, conceding that he had a right to chastise her, it was clearly and unquestionably more severe than the law would permit.”

And he affirmed the case.

The unquestioned testimony by appellant, his wife, Miss Carrington, and others all show appellant had no care nor custody whatever of Miss Carrington at the time of the assault and battery, nor for more than a year and a half continuously prior thereto, that, in fact, he had emancipated her so far as his care, custody, and control of her was concerned, and that she was looking out for herself, making her own living and support, was not in his household as a member of his family at the time, and under the facts and circumstances of this case he had no right whatever as her guardian or otherwise, to punish her. The statute (article 1016, P. C. 1911) says:

“No verbal provocation justifies an assault and battery, but insulting and abusive words may be given in evidence in mitigation of the punishment affixed to the offense.”

The jury assessed the lowest punishment possible.

The court committed no error in refusing appellant’s special charge restricting their consideration of the testimony of some of the witnesses to what Mrs. Eitel said in appellant’s presence, as shown by the statement of the testimony above, nor his requested charge limiting the testimony of the several witnesses as to what appellant at the time said of what he would do to Miss Car-rington if he caught her, as shown by the statement above. Clearly all this testimony was res gestee of the assault and battery, and all admissible as original testimony, and it would have been improper for the court to have limited it as requested by appellant’s said special charges.

The judgment is affirmed.
      <¡&wkey;For other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes

      @=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes