text:
    NOODLEMAN v. STATE.
    (No. 3215.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Indictment and Information (§ 203)— Aider by Verdict.
    Though only one count of the information charged an offense, the verdict being general, it will be applied to the good count, and the conviction upheld.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 651-656; Dec. Dig. § 203.]
    2. Parent and Child (§ 17) — Duty to Support — Crimes.
    Act July 1, 1913 (Acts 33d Leg. c. 101), making it an offense for a husband to willfully refuse to provide for and support his children under 16 years of age, provides that an offense under the act shall be held., to have been committed in the county in which the children shall have resided for six months next preceding the filing of the information. Accused, before the passage of the act, deserted his wife and minor children while they were living in another state; but the wife and children thereafter came within the state, and resided for over six months in the county in which prosecution was instituted. Held, that where accused, though knowing of the destitute condition of his children, willfully refused to support them, he was guilty of the offense denounced by the act, and the courts of the county where the children resided had jurisdiction.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec.’ Dig. § 17.]
    3. Parent and Child (§ 17) — Duty to Support— Offenses — Evidence.
    While accused could not be punished for failure to support his children before the law went into effect, evidence that such children were in a destitute condition for a long time before the lgw went into effect, and that such condition continued up to the time of the prosecution, is admissible.
    [Ed. Note. — For other cases, see Parent anR Child, Cent. Dig. §§ 176-181; Dec. Dig. § 17.]
    4. Parent and Child (§ 17) — Duty to Support — Offenses—Evidence.
    Evidence showing when accused abandoned his wife and family is also admissible, although it cannot be considered, except as tending to show the condition of the wife and children.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. § 17.]
    5. Criminal Law (§ 825) — Trial—Instructions.
    In a misdemeanor case, where the court charged the jury as to the purpose for which evidence could be considered, accused, if desirous of more explicit instructions, should request them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    6. Criminal Law (§ 1174) — Appeal—Harmless Error.
    In a prosecution for refusing to support his destitute minor children, the act of some of the jurors, who had the day previous sat on a jury which convicted another of wife desertion, in stating that the penalty imposed in' this case should not be as severe as the first, does not warrant reversal, where some of the jurors denied that the matter had any effect tipon them, and accused was not given as severe a penalty as was imposed upon the wife deserter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    7. Criminal Law (§ 1090) — Appeal—Questions Presented for Review — Bills of Exceptions — Necessity.
    Where alleged improper argument of the prosecutor was not verified by a bill of exceptions, it cannot be considered on appeal.
    [Ed. Note. — For other cases,, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 294S, 3204; Dec. Dig. § 1090.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Jacob Noodleman was convicted of crime, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, 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

   HARPER, J.

Appellant was tried under an information containing two counts; one charging him with deserting his wife, and the second charging him with refusing to provide for and support his two minor children, Arthur and Lillie Noodleman, both of whom were under 16 years of age.

The evidence would clearly show that appellant had abandoned his wife before he came to Texas. His testimony and the testimony of his wife clearly show that fact, although they differ in many other material particulars. The abandonment of the wife having occurred in a foreign state, we doubt very much if a verdict could be sustained under that count in the information; but as the verdict is general it can be applied to the second count in the information, if the evidence will sustain a verdict under that count. It is the clear intention of the law that although the abandonment or desertion 'may have taken place at one place, yet if the wife and children reside in another county for six months, during which time the husband willfully refuses to support his children, and knowingly and voluntarily leaves them in destitute and necessitous circumstances, he may be prosecuted and convicted in the county in which the children and their mother have their residence, for the law provides:

“An offense under this act shall be held to have been committed in the county in which such wife, child or children may have been at the time such abandonment occurred, or in the county in which such wife, child or children shall have resided for six months next preceding the filing of the * * * information.”

' Appellant and his wife and children had all resided in Houston, Harris county, more than six months prior to the filing of the information in this case; therefore that county would have jurisdiction, even though the actual abandonment had taken place elsewhere, in so far as refusal to provide for the support and maintenance of his two minor children is concerned. In this case it appears that appellant had been residing in Harris county for several years, that his wife and children came to Harris county in the fall of 1912, and it is doubtless just such cases as this that induced the Legislature to make It a crime to refuse to support the abandoned children.

It is true that appellant could not be punished for failure to do so up to the time this law went into effect, July 1, 1913; but the prosecution was not begun until long after that date, and the evidence clearly shows that appellant, though able to do so, had contributed nothing to the support and maintenance of the children from and after July 1, 1913, up to the time of the institution of this prosecution. If it had not been for Mrs. Ella Love, Eabbi Wilner, and the Social Service Confederation, they would have perhaps been left to starve. The fact that they were found by these people in needy and destitute condition prior to July 1st did not render such fact inadmissible, as contended by appellant, when it is shown by both the testimony of Mrs. Love and Rabbi Wilner that such condition continued to exist from July 1, 1913, continuously to the date of the filing of this information, and that, but for the payment of house rent and furnishing of groceries by these good people, appellant’s children would have had no cover for their heads 'and insufficient food to sustain life. While the record would suggest that such condition was known to appellant, yet, if not actually known, he is placed in position where by the exercise of the slightest effort he could and would have known of their destitute condition. He often met his little boy on the street selling papers, in an effort to aid in the support of his mother and baby sister; but this did not move appellant to take steps looking towards their welfare, and he left them to be cared for by the charitable people of Houston.

It was permissible to show when the abandonment took place, even though it was prior to the time the law became effective; for, while he could not be punished for an offense that took, place prior to the enactment of the law — that is, the act of abandonment — yet under the terms of the law he could be punished for failure to provide for the support and maintenance of his children under 16 years of age in destitute circumstances, after the law became effective, and the court in his charge instructed the jury that they “could not consider any fact or circumstance occurring prior to July 1, 1913, for any purpose in this case, except as a circumstance tending to show or not to show (according as you find the fact to be)” the condition of the wife and children subsequent to July 1,1913. Thus it is seen that the court rendered it certain that the jury could not convict appellant for anything done prior to the time this law became effective. If appellant desired fuller instructions in regard to this matter, this being a misdemean- or, he should have requested such instructions, and not relied upon his objections to the testimony being wholly inadmissible, for the testimony was properly admitted as showing their destitute condition on July 1st, and subsequent to that date; and' especially is this true where the testimony shows that, although it was prior to July 1st when Mrs. Love and Rabbi Wilner found them in destitute circumstances and they began their contributions, yet this condition continued up to and inclusive of the date of filing the information herein.

By another bill it was shown that three of the jurymen who tried appellant had also been members of the jury who had convicted one Scardino of wife desertion on a prior day of the term, and after the jury in this case had agreed that appellant was guilty and they were discussing the punishment, some being for a graver punishment than the others, one of those who had served in the Scardino case said- they ought not to assess as high a punishment as in the Scardino case, as it was a worse case than this case, and in fact the jury in this case did not assess against this appellant as heavy punishment as assessed in the Scardino case. That was not receiving any additional testimony bearing on appellant’s guilt or innocence, and if it had any effect (which all six of the jurymen deny) it appears it caused them to assess a less penalty, and is not such misconduct as would authorize a reversal of the case.

If the prosecuting attorney made use of the language complained of in the motion for new trial, it is not verified by bill of exceptions, and under such circumstances we cannot review this ground of the motion.

There being no reversible errors pointed out, the judgment is affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    GOMEZ v. STATE.
    (No. 3250.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.
    On Motion for Rehearing, Nov. 11, 1914.)
    1. Criminal Law (§ 101) — Venue—Locality or O SITENSE — CREATION OF NEW COUNTY.
    Where after an indictment was returned a new county was created which included the scene of the crime, the indictment was properly transferred to such new county.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig'. §§ 199-205; Dec. Dig. § 101.]
    2. Ceiminal Law (§ 126) — Venue—Change or Court’s Own Motion.
    Under Code Cr. Proc. 1911, art. 626, providing that whenever in .any case of felony the presiding judge sháll be satisfied that a trial, fair and impartial to accused and the state, ean-not be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own or an adjoining district, where an indictment found before the creation of a new county, including the scene of the crime, was transferred to such new county, the trial judge was authorized, when the district court of such new county convened to change the venue to another county, if in his opinion the facts connected with the offense had gained such wide notoriety that a fair and impartial trial could not be had.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 243; Dee. Dig. § 126.]

      3. Crimin-ai. Law (§ 1099) — Appeal— Statement of Pacts — Necessity of Approval by Trial Judge.
    A statement of facts never presented to the trial judge for approval, or at least not approved by him, cannot be considered on appeal in a criminal case.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Criminal Law (§ 363) — Evidence—Res Gestas — Events Preceding Crime.
    On a trial for homicide, a witness was properly permitted to detail the events leading up to the tragedy; this being res geste of the transaction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    5. Homicide (§ 175) — Evidence — Admissibility.
    On a trial for homicide, evidence that deceased was in perfect health, and that she died in 14 hours after being shot in the abdomen by accused, was clearly admissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 375-378; Dec. Dig. § 175.]
    6. Criminal Law (§ 1169) — Appeal—Harmless Error — Admission of Evidence.
    On a trial for homicide, where it was accused’s contention that he was intoxicated and that deceased was shot accidentally, and a witness testified that deceased was in perfect health, and that she died in 14 hours after being shot in the abdomen by accused, her further testimony that deceased’s death was caused by the shot was harmless.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. §, 1169.]
    7. Witnesses (§ 286) — Impeachment—Redirect Examination.
    Where on cross-examination of a witness who had testified to material facts for the state, it was sought to discredit him by showing that he had testified at the examining trial, and that he had been induced by another to testify as he did on the trial, it was not error to permit him to state on redirect examination that his testimony at the trial was the truth; this not “bolstering up” his testimony, as this statement would add no strength to his testimony if discredited by the cross-examination.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 930, 994 — 999; Dec. Dig. § 286.]
    8. Criminal Law (§§ 366, 368) — Evidence-Res Gestae — Declarations Following Homicide.
    Statements made by deceased and by another person a few minutes after the shooting, and evidently amounting to the event speaking, were properly admitted as res geste of the transaction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 812, 814, 815, 819-821; Dec. Dig. §§ 366, 368.]
    9. Jury (§ 50) — Qualifications of Jurors —‘ ‘ Householder. ’ ’
    A single man, living with his parents though paying board or renting a room from the occupant of a house, is not a “householder” so as to be a qualified juror.
    [Ed. Note. — For other eases, See Jury, Cent. Dig. § 256; Dec. Dig. § 50.

    For other definitions, see Words'and Phrases, First and Second Series, Householder.]
    10. Criminal Law (§ 1166%) — Appeal — Harmless Error — Challenges to Jurors.
    There .was no error in overruling a challenge to a juror for cause where accused peremptorily challenged the juror and no objectionable juror was forced on him.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    11. Criminal Law (§ 721%) — Argument of Prosecuting Attorney — Reference to Failure to Call Witness.
    Where accused’s wife, who was present at a homicide and in attendance on court at the trial, was not called by accused as a witness, it was permissible for the district attorney in his argument to refer to accused’s failure to call her, as the state could not introduce her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    12. Criminal Law (§ 1144) — Appeal—Presumptions in Support of Judgment.
    Where no exceptions were taken to the charge before it was read to the jury and there is no statement of facts, it must be presumed that the judge fully presented all the issues made by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771,2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    13. Homicide (§ 354) — Punishment—Death Penalty.
    The infliction of the death penalty for homicide is authorized under the existing law.
    [Ed. Note. — For- other cases, see Homicide, Cent. Dig. § 731; Dee. Dig. § 354.]
    On Motion for Rehearing.
    14. Criminal Law (§ 1099) — Appeal — Statement of Facts — Failure to Obtain Approval.
    Where in a case tried in May accused relied on the court stenographer to. present the statement of facts to the district judge for approval, but thz-ough an oversight the statement was filed without being presented for approval, and no effort to cure this defect was made until October when the district judge wrote the Court of Criminal Appeals., stating that he would have approved it, the judgment could not be reversed because accused was deprived of a statement of facts, as it was the duty of his attorney to place the statement of facts in.the hands of the trial judge, with a request that he either approve it or prepare and file a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    15. Homicide (§ 250) — Evidence — Weight and Sufficiency.
    On a trial for homicide, in which accused claimed that he was intoxicated and that deceased was shot accidentally, evidence held sufficient to support a conviction for murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Federico Gomez was convicted of murder, • and he appeals.
    Affirmed.
    John C. North, of Falfurrias, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at death.

March 29, 1913, appellant shot and killed Santos Mora at the Randado ranch in what was then Brooks county. The Legislature subsequently created a new county, Jim Hogg, and the place where the killing took place was included in the territorial limits of that county. When that county was organized the district judge of Brooks county transferred the indictment to Jim Hogg county. Appellant complains of this action of the court, and says he should have been tried in Brooks county. Mr. Bishop says:

“By the common law crimes are local, to he prosecuted in the county of their commission; only in such county can the grand jury inquire into them. Even where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the state; the trial is in the new county.”

This is the correct rule, and one followed by our courts. Hernandez v. State, 19 Tex. App. 408; Weller v. State, 16 Tex. App. 200; Nelson v. State, 1 Tex. App. 45. The offense having been committed March 29th, the indictment returned May 27th, and the law creating Jim Hogg county July 1st, it was not only proper, but incumbent on the court, to transfer the ease to Jim Hogg county, as that county would have jurisdiction of the offense. And when the district court of Jim Hogg county convened, if in the opinion of the trial judge that the facts connected’ with the commission of the offense had gained such wide notoriety that a trial alike fair and impartial to the accused and the state could not be had in that county, he was authorized to change the venue to Webb county. Article 626 of Code of Criminal Procedure.

The death penalty having been assessed in this case, we cannot understand the negligence manifested in the preparation of this record. The statement of facts bears no evidence that it was ever presented to the trial judge for his approval—at least, in the record before us the statement of facts has not been approved by him—and is not verified in a way that would authorize us to consider it. Lawrence v. State, 7 Tex. App. 192; Bennett v. State, 16 Tex. App. 236; Johnson v. State, 29 Tex. 492; and note 1169 White’s Ann. Code of Criminal Procedure, and authorities there cited.

Mrs. Juana Chapa de Mora was permitted to detail the conversation she had and events that led up to the tragedy. This was res gestae of the transaction, and properly admitted in evidence.

Carmen Mora was permitted to testify that prior to the shooting her sister, Santos Mora was in perfect health, and that her sister died in 14 hours after being shot in the abdomen by appellant, and that her death was caused by this shot. The bill shows that all this testimony was objected to. Certainly all of it was admissible, unless it be that portion of it in which she stated her sister’s death was caused by this shot, and in our opinion, under the circumstances of this case, the court did not err in permitting the witness to testify to that fact.

Federico Gonzales had testified to material facts for the state, and the defendant, in cross-examination, had sought to discredit the witness by showing that he had testified at the examining trial, and attempted to show that he had been induced by another to testify as he had on this trial. On redirect examination he was permitted to say that what he had testified to on this trial was the truth. Appellant contends that was “bolstering up” the testimony of the witness. We hardly think the contention sound under the recitals of the bill, for if by the cross-examination of the witness the defendant had cast a cloud on the truth of the testimony of the witness, the witness stating it was the truth would add no strength to it.

The statements made by Santos Mora and Andres Salinas were admissible both as dying declarations and as res geste of the transaction. The statements were made only a few minutes after the shooting, and it is evident it was but the event speaking.

Neither McClelland, Vasquez, nor Spra-gue were qualified jurors, and the court did not err in so holding. They were neither freeholders nor householders within contemplation of the law. A single man who remains with his father and mother, even though he pays them board, does not, because of that fact become a householder. And neither is a single man a householder who merely rents a room from an occupant of the^ house

As to Mr. Eistetter, if the court erred in refusing to sustain appellant’s challenge for cause, he peremptorily challenged the jur- or, and as no objectionable juror was forced on appellant, this bill would present no error.

Appellant’s wife was in attendance on' court. The record shows she was present at the time of the homicide, but she was not called as a witness by appellant. The state could not introduce her, and the bill shows that in his argument the district attorney referred to the fact that she had not been introduced as a witness. This was permissible, and the bill presents no error.

No exceptions were taken to the charge of the court before it was read to the jury, and in the absence of a statement of facts we must presume that it fully presents all the issues made by the evidence had on the trial. The contention that there is now no law authorizing the infliction of the death penalty cannot be sustained.

The judgment is affirmed.

On Motion for Rehearing.

The statement of facts was not presented to the trial judge for his signature, nor signed by him. The attorney of appellant has filed an affidavit stating that he relied on the court stenographer to present' it to the district judge for his approval. The court stenographer has filed an affidavit in which he states he intended to do so, but it was filed by oversight, without being presented to tlie judge for his approval. Judge Mullally writes to the court and says:

“It was never my intention not to approve the statement of facts, and it must have been filed inadvertently without my approval, and without it being presented to me. Had I seen it, I would have approved it, as it was agreed to by Mr. North and the district attorney.”

This case was tried last May, and no effort made to cure this defect in the record until we received the letter of Judge Mullally dated October 30th. We are not authorized to reverse the case because appellant has been deprived of a statement of facts. His attorney must be diligent, and his diligence does not end until the statement of facts is placed in the hands of the trial judge, with request either to approve it, or if he will not do so, to prepare and file a statement of facts. This requisite of the law was not complied with, but appellant’s counsel relied on the promise of the stenographer reporting the ease to do so for him, and through oversight the stenographer failed to keep his promise to appellant’s counsel.

But the death penalty being assessed, although the statement of facts did not bear the approval of the trial judge, we have read it. Appellant married Pilar Mora, they separated, and she returned to her father’s house, who lived on the Randado ranch. Appellant, after his wife’s return to her father’s home, also went to this ranch and stayed around there several days. One morning he went to this house when only the women folks were present, and forced an entrance. After conversing with them awhile, he shot at his wife and her mother. Santos Mora, the deceased, standing near appellant, caught him as he fired these two shots and undertook to shove him out of the house. As she did so he' turned the pistol on her and shot her in the abdomen, inflicting the wound that caused her death. Another girl, Carmen Mora, fled the house, calling for help, and he fired two shot at this fleeing girl. This is the state’s case, and amply supports the verdict rendered by the jury.

Appellant’s contention is: That he went to the Randado ranch about six days before the shooting, and that he was drunk while ther.e. That he got the intoxicants from Juan Mora, the mother. That he sent two children of Damiana Villarreal to the house after the beer and mezcal. Neither one of these children were introduced as witnesses, and neither does the record disclose that any process had ever been issued for them. He says on the morning of the tragedy he decided to go after the mezcal himself, and went to the house for this purpose, and did purchase two glasses of mezcal from Mrs. Mora, and claims not to recollect very Well what took place subsequently to taking these two drinks. That he wanted more mezcal, and they would not let him have it, and he pulled his pistol, and it was accidentally fired. The deceased caught hold of him and he fell, when in the scuffle the pistol was fired three more times, unintentionally and accidentally. He offered no testimony except his own that he had secured any intoxicants from Mrs. Mora, and this the state’s evidence would authorize a finding that it was not true. The court in his charge presented defendant’s theory of the case, and instructed them:

“Among the defenses in this ease the defendant raises the issue of an accidental killing, and on this issue you are instructed that if the defendant did not intend to shoot Santos Mora, or to kill her, and if he and she were struggling with the pistol, and if it was discharged while they were so struggling without an intent on the part of the defendant that it should be discharged, and the shot entered Santos Mora and caused her death, then the defendant is not guilty of the offense charged, and if you have a reasonable doubt as to this issue, you must give the defendant the benefit of the doubt and acquit him.”

So if we consider the evidence, this case should be affirmed. There is nothing in the record suggesting that the shot fired was intended for another. The state’s case is that appellant deliberately turned the pistol on the girl and shot her in the abdomen. His theory is that he fell and the pistol was fired unintentionally.

The motion for rehearing is overruled.


text:
    BROWN v. STATE.
    (No. 3290.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Criminal Law (§§ 1095, 1102) — Appeal-Statement op Facts — Bill op Exceptions —Filing—Time.
    Where, in a prosecution for impersonating an officer, neither the statement of facts nor the bills of exceptions were filed within the time allowed by law in misdemeanor cases, they would be stricken on motion.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dee. Dig. §§ 1095, 1102.]
    2. Criminal Law (§ 730) — Trial—Cueing Error.
    Improper remarks of counsel for. the state in his closing argument are not ground for reversal, where the court instructed the jury not to consider them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693 ; Dee. Dig. § 730.]
    3. Criminal Law (§ 1144) — Appeal—Statement op Facts — FtLiNG-^-TiME — Presumptions.
    Where the statement of facts was filed too late to be considered, it will be presumed on appeal that the venue was properly proved.
    [Ed. Notei — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.}
    4. Criminal Law (§ 564) — Venue—Proop op Venue.
    Where, in a prosecution for impersonating an officer, a witness testified that she and her brother were camping near the house of M., in Sylvester, on the night of November 20th, when defendant attempted to arrest her, and that Sylvester was in F. county, the venue was sufficiently proved; there being no claim that the offense was committed at any other or different place.
    [Bd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1-277-1284; Dec. Dig. § 564.]
    5. Criminal Law (§§ 763, 764) — Trial—Instructions — Weight of Evidence.
    An instruction that if defendant did unlawfully and falsely assume and pretend to be a deputy sheriff of F. county, and then and there take on himself to act as such officer, and as such did try to arrest and did demand the arrest of M., and, while pretending to be such deputy sheriff, did demand that M. submit to arrest by him while falsely pretending to be such a deputy sheriff, and that in truth he was not a deputy sheriff, and was not authorized to make such arrest, and knew that he was not a deputy sheriff, then the jury should find him guilty, etc., was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    6. False Personation (§ 2) — Elements oe OREENSE — WlLLEULLNESS.
    Pen. Code 1911, art. 424, having defined the offense of false personation without using the term “willful,” the court, in a prosecution for violating such section, need not require that defendant’s act should have been willfully done, nor define “willful,” though criminal intent and guilty knowledge were elements of the offense.
    [Ed. Note. — For other cases, see False Per- ■ sonation, Cent. Dig. § 1; Dec. Dig. § 2.]
    7. Indictment and Information (§ 122)— Sufficiency — Elements of Offense — Variance.
    Since, under Pen. Code 1911, art. 424, making it an offense for any person to falsely assume or pretend to be a deputy sheriff, it is not essential to charge that the act was willfully done, the fact that the complaint charged that defendant “unlawfully, willfully, and falsely assumed and pretended,” etc., to be a deputy sheriff, while the information only charged that he “unlawfully and falsely assumed and pretended,” etc., was not a fatal variance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 321-325; Dec. Dig. § 122.]
    Appeal from Fisher County Court; L. C. Miller, Judge.
    R. A. Brown was convicted of falsely pretending to be a deputy sheriff and attempting to arrest another, and he appeals.
    Affirmed.
    L. B. Allen and L. H. McCrea, both of Roby, 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

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

   HARPER, J.

Appellant was convicted of falsely assuming and pretending to be a deputy sheriff, and did try to arrest and demand that Mrs. Eoline Myler submit to arrest, etc., and his punishment assessed at six months’ confinement in the county jail.

The term of court at which appellant was tried adjourned July 25th. The statement of facts was not filed within the time allowed by law in misdemeanor cases, and the motion of the -Assistant Attorney General to strike it from the record must be sustained. Durham v. State, 155 S. W. 222. ’

The bills of exception are in the same condition, except the one complaining of the remarks of counsel for the state in his closing argument. As the court instructed the jury not to consider such remarks, they were not of that character to call for a reversal of the ease. As before stated, the other two bills were not filed in time to authorize the court to consider them, but, if we did do so, they would present no error. In one it is urged that the court should have instructed a verdict for defendant on the ground that the state had not proved the offense to have been committed in Fisher county, if committed as alleged.

The statement of facts having been filed too late to be considered, we must presume that venue was proven. But, even though the statement of facts was not filed in proper time, we have read it, and Mrs. Myler testified that:

“She and her brother were camped near the house of Mr. McNiel in Sylvester on the night of November 20th, when the attempt to' arrest her was made and the indignities heaped upon her-by appellant; that Sylvester was in Fisher county.”

This clearly proved the venue of the offense, and no question is raised in the testimony that the place the offense is alleged to have taken place at was at any other or different place.

The next bill complains that the court-did not define the meaning of the words “impersonation of an officer.” The court did not use those terms in his charge. The court, in submitting the issue, instructed the jury:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant in Fisher county, Tex., did on or about the 20th day of November, A. D. 1913, and within two years next before the filing of the information herein, did unlawfully and falsely assume and pretend to be a deputy sheriff of Fisher county, and did then and there take upon himself to act as such officer, and as such officer did try to arrest, and did demand the arrest of, Mrs. Eoline Myler, and, while pretending to be such deputy sheriff, did demand that Mrs. Eoline Myler submit to arrest by him (the said R. A. Brown), while falsely pretending to be such deputy sheriff, and that in truth and in fact the said R. A. Brown, at the time alleged, was not a deputy sheriff, and that he was not authorized to do and perform and do said acts and things, and that the said R. A. Brown knew that he was not such deputy sheriff as he pretended to be, you will find the defendant guilty and assess his punishment at any term in the county jail not exceeding six months, or you may, in your discretion, assess his punishment by a fine in any sum not exceeding $500.”

No words were used that any person of common understanding could or would be misled as to their plain meaning.

The appellant, in his only remaining bill, complains that the above copied paragraph of the charge is upon the weight to be given the testimony. A cursory reading of it, we think, shows this complaint to be without merit.

He also complains that in this paragraph of the charge the court omits the word “willfully,” and does not require the jury to find that the acts were willfully done. While the word “willful” is not used, yet the facts required to be found, beyond a reasonable doubt, before the jury would be authorized to convict necessitate a finding that the act was done willfully, and, as that term is not used in the statute defining the offense (article 424, Penal Code), it was not necessary for the court to do so in his charge, nor define the meaning of the word. While criminal intent and guilty knowledge are constituent elements of this offense, yet the charge, as submitted by the court, required a finding as to these matters before authorizing a conviction.

These are all the bills in the record. However, in the record we find a motion in .arrest of judgment, calling the attention of the court to a variance in the complaint and the information. In the complaint it is alleged that, appellant did “unlawfully, willfully, and falsely assume and pretend,” etc., while in the information it is only alleged that appellant did “unlawfully and falsely assume and pretend,” etc.; that the omission of the word “willfully” in the information, it being in the complaint, creates a fatal variance, for which the judgment should be arrested. As before stated, article 424 of the Penal Code makes it an offense for “any person to falsely assume or pretend to be a deputy sheriff”; therefore it was not necessary for the complaint or information to charge that the act was willfully done, and the information charged the offense under the law. Both charge the same offense in exactly the same way, with the exception of the omission of this word in the information, and, as it charged the offense alleged with the word omitted, this presented no variance for which the information should have been quashed, and the court did not err in overruling the motion in arrest of judgment. State v. Elliott, 41 Tex. 225.

If the statement of facts was in condition that we could consider it, the evidence amply supports the verdict, and the judgment is affirmed.


text:
    BROWN v. STATE.
    (No. 3251.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Intoxicating Liquob (§ 236) — Unlawful Sale — Evidence.
    In a prosecution for selling intoxicating liquor in prohibition territory, testimony that witness purchased a bottle of whisky from defendant and paid $1 for it would authorize a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.] •
    2. Criminal Law (§ 598) — Continuance-Absent Witness.
    Where all the witnesses named in defendant’s application for a postponement attended court, except one who lived in another state, and no effort was made to take her deposition, there was no error in overruling the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    3. Indictment and Information (§ 34)— Signature — Foreman of Grand Jury.
    Where_ the foreman of the grand jury signed the indictment, the fact that his signature was not indorsed or signed on the back thereof below the words “A true bill” did not .vitiate the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 138-143; Dec. Dig. § 34.]
    4. Criminal Law (§ 324) — Presumption— Innocence.
    The presumption of innocence is not a substantial right of defendant, equal to a witness in his behalf.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. § 719; Dec. Dig. § 324.]
    Appeal from District Court, Clay County; R. H. Buck, Special Judge.
    Link Brown was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Chas. E. Davis, of Ryan, Okl., for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year’s confinement in the state penitentiary.

Will Tolbert testified he purchased a bottle of whisky from appellant and paid him $1 for it; therefore this would authorize the conviction of appellant.

He first complains of the action of the court in overruling his application for a postponement of the case on account of the absence of four witnesses. By the qualification of the court to the bill it is shown that all the witnesses named in the application attended court except one — appellant’s daughter. She lived in Oklahoma; consequently the issuance of a subpoena would not be diligence. No effort was made to take her depositions, and under such circumstances the court did not err in overruling the application.

The foreman of the grand jury signed the indictment, but his name was not indorsed or signed on the back thereof below the words “A true bill.” This did not vitiate the indictment, and the court did not err in so holding.

Appellant requested the court to instruct the jury:

That the “defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt is not a mere fiction of the law, but is a substantial right of the defendant equal to a witness in his behalf.”

This is not the law, and the court did not err in refusing the requested instructions. He gave the usual and customary instruction as to presumption oí innocence and reasonable doubt, and this was all that was necessary.

The judgment is affirmed.


author: DAVIDS'ON, J.

text:
    GUITERREZ v. STATE.
    (No. 3298.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1. Criminal Law (§ 841)—'Tbiai^-Instruc-tions—Objections—Presentation to Juey -Time-
    Objections to the charge and to the court’s refusal to charge, not made and exceptions taken thereto before the charge is read to the jury, are too late.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2022; Dee. Dig. § 841.]
    2. Criminal Law (§ 1090)—Appeal—Rul-ings on Evidence—Bills of Exception.
    Rulings on evidence cannot be .reviewed, unless preserved by bills of exception.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653,2789,2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    3. Criminal Law (§ 1206)—Sentence— Cor- . rection.
    Where accused was convicted of murder, and his punishment assessed at 12 years in the penitentiary, the judgment will be reformed to conform to the indeterminate sentence law.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    Appeal from District Court, El Paso County; Leigh Clark, Special Judge.
    Yietor Guiterrez was convicted of murder, and he appeals.
    Reformed and affirmed.
    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

   DAVIDS'ON, J.

Appellant was convicted of murder; his punishment being assessed at twelve years’ confinement in the penitentiary.

The record contains a statement of facts, but no bills of exception. There were no objections urged to the charge before being read to the jury. The motion for new trial alleges that the verdict is contrary to the law and the evidence, and that the court’s charge is on the weight of the evidence. Under our recent statutes these objections to the charge come too late; they should have been presented to the court before the court’s charge was read to the jury, at which time the exceptions should have been noted and properly verified for the inspection of this court, and all requested instructions should also have been asked before the court’s charge was read to the jury, and refusal to give those also noted and properly verified. These matters with reference to the charge, and requested instructions which were refused, cannot be considered in the manner in which they are shown in the record.

There are several grounds of the motion for new trial setting out that the court erred in the introduction of testimony, but there were no bills of exception reserved; therefore these cannot be considered. .

The sentence of the court, however, must be reformed. The jury gave appellant 12 years in the penitentiary. The judgment and sentence both fail to apply the indeterminate sentence law. To that extent the judgment will be reformed, so as to comply with the indeterminate sentence act of the Legislature. The clerk will enter the proper judgment here.

The judgment is ordered reformed and affirmed.


text:
    PARTRIDGE v. STATE.
    (No. 3311.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Game (§ 7*) — Criminal Prosecutions — Information—Sufjbtoiency.
    An information charging that accused unlawfully entered upon the inclosed and posted lands of a corporation named, without its consent or the consent of its manager, and therein hunted with firearms, did not state an offense under White’s Ann. Pen. Code, art. 804, as 'amended in 1903 (Acts 28th Leg. e. 103), now Pen. Code 1911, art. 1255, which provides that any person who shall enter upon the inclosed land of another without the consent of the owner or agent in charge, and hunt therein with, firearms, shall be punished as therein provided, provided that this shall not apply to inclosures including 2,000 acres or more in one inclosure, nor under Acts 26th Leg. c. 102, making it unlawful to hunt with firearms upon the inclosed and posted lands of another without the consent of the owner, where such lands are in use as agricultural lands or for grazing purposes, having cattle, horses, etc., thereon; it not alleging that the land in question was used for either agricultural or grazing purposes.
    [Ed. Note.—For other eases, see Game, Cent. Dig. §§ 6, 7; Dee. Dig. § 7.*]
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    ' J. A. Partridge was convicted of an offense, and he appeals.
    Reversed, and prosecution ordered dismissed.
    See, also, 158 S. W. 549.
    J. S. ICendall, of Munday, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an information alleging that appellant “did then and there unlawfully enter upon the inclosed and posted lands of Reynolds Cattle Company, a corporation duly incorporated under the laws of the state of Texas, without the consent of the said Reynolds Cattle Company, the owner, and without the consent of M. B. Gentry, the manager of tho said Reynolds Cattle Company, or either of them, and therein hunt with firearms,” etc.

This prosecution was instituted under article 804, White’s Ann. Penal Code, which reads, as applicable to this case:

“Any person who shall enter upon the inclosed and posted land of another, without the consent of the owner, * * * or agent' in charge, and therein hunt with firearms, shall be punished by fine of not less than five nor more than one hundred dollars.”

Had this article of the Gode remained as thus drawn, the information would be good under it; but in 1903 (Acts 28th Leg. c. 103) this provision of the Gode was amended so as to read as follows, as applicable to this case (it is now article 1255, P. 0.1911):

“Any person who shall enter upon the inclosed land of another without the consent of the owner, * * * or agent in charge, and therein hunt with firearms, * * * shall be punished by a fine of not less than $10.00 nor more than $100.00, provided, that this act shall not apply to inelosures including 2,000 acres or more in one inclosure.”

The county attorney and trial court were perhaps not made aware of this amendatory act, because the information is drawn under the old act, and the court authorized the punishment under the old act, while the amendatory act changed the minimum punishment from $5 to $10, leaving the maximum the same. It will be further noticed that in the act as amended, if the inclosure contains 2,000 acres or more, no prosecution can be had thereunder, and, if the inclosure contains less than 2,000 acres, it is no longer necessary to allege that it is posted, for under the amended act it is an offense to hunt with firearms on the inclosed lands of another if the inclosure contains less than 2,000 acres. By reading this amended act it can be readily seen that the information does not charge the offense therein defined.

We have another statute, however, which relates exclusively to “posted” lands, being chapter 102 of the Acts of 1899 (Berry v. State, 156 S. W. 627), which makes it an offense to knowingly hunt on the inclosed lands of another, regardless of the size of the inclosure, provided such lands are in use as agricultural lands or for grazing purposes, having cattle, etc., thereon. But the information does not charge an offense thereunder, for it does not allege that the lands of the Reynolds Cattle Company were being used either for agricultural purposes or for grazing purposes, having cattle, horses, etc., herded or grazing thereon, nor that appellant “knowingly” did the act Nor does the evidence disclose whether or not the inclosure contained less than 2,000 acres, nor whether it was being used for agricultural purposes, or a pasture in which stock was being herded or grazed.

As the information does not charge an offense under the act of 1899, relating to posted lands used for agricultural or grazing purposes upon which stock were being herded or grazed, nor under the act of 1903, amending article 804 of White’s Ann. Penal Code, relating to inclosures of less than 2,000 acres, whether posted or not, and regardless of the use to which same is being put, the motion to quash the information • and complaint should have been sustained.

The Judgment is reversed, and the prosecution ordered dismissed.


author: PRENDBRGAST, P. J.

text:
    STEPHENS v. STATE.
    (No. 3309.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    A. Stephens was convicted of an offense, and he appeals.
    Reversed, and cause dismissed.
    J. S. Kendall, of Munday, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDBRGAST, P. J.

Appellant was convicted for unlawfully hunting on the land of another. This is a companion case to that of Partridge v. State, 170 S. W. 717, from the same county, No. 3311, this day reversed and dismissed in an opinion by Judge HARPER. There is no difference in the cases or questions.

On the authority of that case, the complaint and information herein are insufficient, and the judgment is reversed, and the cause dismissed.


author: DAVIDSON, J.

text:
    BOLANDER v. STATE.
    (No. 3310.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    J. Bolander was convicted of an offense, and he appeals.
    Reversed, and prosecution dismissed.
    J. S. Kendall, of Munday, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is in the same condition as that of Partridge v. State, 170 S. W. 717, this day decided; the questions being the same.

On the authority of the opinion in that case, this judgment is reversed, and the prosecution ordered dismissed.


text:
    WHITTEN v. STATE.
    (No. 3327.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    Intoxicating Liqtjobs (§ 146) — Sales—Ojí-EENSES.
    A prospective purchaser told accused that he desired some whisky, and accused replied that he had some in his trunk. Thereupon the purchaser paid him money and went to accused’s home, where another member of accused’s family showed him the trunk containing the whisky from which he took his purchase. Held, that accused was guilty of unlawful sale.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.]
    Appeal from Red River County Court; Geo. Morrison, Judge.
    Wiley Whitten was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    Travis T. Thompson, of Clarksville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of violating the prohibition law in force in Red River county.

His contention is that the evidence does not show a sale, in that it does not show a delivery of the whisky by appellant Walter Keeton testified that he knew appellant and approached and told him he desired some whisky. Appellant said that he had some at home in his trunk; that he paid appellant $3 for the whisky, and went) to appellant’s home, and appellant’s brother showed him which was appellant’s trunk, and he went into it and got a quart of whisky. This was a sale, and the court did not err in so holding.

The judgment is affirmed.


text:
    WHITTEN v. STATE.
    (No. 3328.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    Criminal Haw (§§ 1092, 1099) — Appeal — Statement of Pacts — Time of Piling.
    In a county court case, the statement of facts and bills of exception must be filed within 20 days after adjournment or they cannot be considered.
    [Ed. Note. — Por other cases, see Crimina] Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919, 2866-2880; Dec. Dig. §§ 1092, 1099.]
    Appeal from Red River County Court; Geo. Morrison, Judge.
    Wiley Whitten . was convicted of crime, and he appeals.
    Affirmed.
    Travis T. Thompson, of Clarksville, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   DAVIDSON, J.

The court adjourned on the 8th day of August. The statement of facts was filed on the 8th day of September —30 days after court adjourned. This is a county court ease. Under the decisions of this court this statement of facts cannot be considered, the law requiring that it should be filed within 20 days after adjournment of court. The bills of exceptions are in the same condition.

With the record in this condition there is nothing to review. Therefore the judgment is affirmed.


text:
    HERRERA v. STATE.
    (No. 3306.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1.Homicide (§ 8) — Refusal of Instructions.
    In a prosecution for a murder committed before July 1, 1913, when the act approved April 3, 1913, repealing the statutes dividing murder into first and second degrees became effective, it was error to refuse a requested instruction defining express malice and implied malice and stating the punishment for a killing on implied malice.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    2. Criminal Law (§ 844) — Appeal—Failure to Instruct — Sufficiency of Objection.
    An objection that a charge was erroneous for failure to set forth the law of murder in the second degree since the evidence showed that deceased assaulted defendant and that the killing was without premeditation or forethought, when considered together with a requested instruction defining express malice and implied malice, sufficiently called the court’s attention to the fact that he had failed to define implied malice.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2025; Dec. Dig. § 844.]
    3. Homicide (§ 8) — Trial — Procedure — “Election.”
    In a prosecution for a murder committed prior to July 1, 1913, when Act April 3, 1913, repealing the statutes dividing murder into first and second degree, went into effect, an objection that the charge was erroneous for failure to set forth the law of murder in the second degree, when considered together with a requested instruction defining express malice and implied malice, constituted an “election” by defendant to be tried under the law existing when the offense was committed, within Pen. Code 1911, art. 15, providing that, when the penalty for an offense is altered by a subsequent law, “the defendant shall be punished under such last enactment unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.

    For other definitions, see Words and Phrases, First and Second Series, Election.]
    4. Homicide (§ 309) — Instruction on Manslaughter-Evidence.
    Where there was evidence that just before the killing deceased struck defendant a (blow in the face and pursued him with blows, 'a requested instruction defining manslaughter was improperly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Criminal Law (§ 814) — Instructions— Circumstantial Evidence.
    Where one witness identified defendant as the person who fired the fatal shot, an instruction on circumstantial evidence was properly refused.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    6. Homicide (§ 142) — Indictment — Variance.
    That the indictment charged the commission of the offense on or about March 19th, and the evidence showed that the killing took place on March 29th, presented no material variance.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.]
    7. Criminal Law (§§ 419, 420) — Evidence— Impeachment of Witness not Used.
    Evidence to show that a witness who, though present in court, was not used, had identified a person other than defendant as the person who committed the homicide, was properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    8. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    Hearsay evidence in regard to the arrest of a third person as the man who killed deceased was properly excluded, where the witness who identified defendant as the person who fired the fatal shot testified that she had at one time caused the arrest of such third person.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    9. Criminal Law (§ 1118) — Appeal—Presentation for Review — Application for Continuance.
    The refusal of an application for a continuance in a criminal case could not be considered on appeal, where the application was not in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Augustine Herrera was convicted of murder, and appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted for murder, and his punishment assessed at imprisonment in the penitentiary for life. .

The state’s evidence would have the killing take place under the following circumstances: Mattie Dyson, testified that Alonzo Watkins drove up in an automobile, got out, and went into a chophouse, leaving his overcoat in the automobile; that a Mexican approached the automobile and took out the overcoat, starting off with it. Just at this time Watkins came out, and she informed him that a Mexican had taken his overcoat out of the automobile, and pointed out the Mexican. Watkins walked up to the Mexican and asked: “Whose coat is that you have got?” the Mexican replying, “It is mine;”' when Watkins said, “I beg your pardon, it is mine;” and then the Mexican handed the coat to Watkins. She identifies appellant as this Mexican. The state’s testimony then shows that the deceased, an officer in citizen’s clothing, then stepped up and placed his hand on the Mexican’s shoulder, who shot and killed the officer.

'Defendant, by the testimony offered in his behalf, would deny that he was this Mexican, and undertook to prove an alibi by showing that he was in Austin at or about this time. He then offered testimony that the killing took place under the following circumstances, whoever killed the officer: Watkins testifies, as the Mexican handed him the coat, the officer stepped up and struck the Mexican in the face and he staggered back; that the officer continued to strike him, striking him several blows, when the Mexican pulled the pistol and shot. The evidence further shows that the Mexican who did the killing was a small, slender man, weighing about 130 pounds, while the policeman was a “large man, well built, and a powerful man, weighing from 170 to 180 pounds, and was a very strong man.”

The offense is proven to have been committed March 29, 1913. The law defining the offense murder so as to embrace a killing both upon express and implied malice, and repealing the statutes dividing murder into the first and second degree — first degree upon express malice, and second degree upon implied malice — was not approved until April 3, 1913, and did not go into effect until July 1, 1913. Therefore appellant was entitled to have the jury instructed the law as it existed at the time of the killing. The court did not define express malice and implied malice, nor instruct the jury that a killing upon implied malice was punishable only by imprisonment in the penitentiary for any term of years not less than five. Appellant presented to the court a special charge requesting him to so instruct the jury, which charge was by the court refused. In this the court erred.

In the record there is what is termed objections to the charge as given b'y the court, in which the following objection was urged:

“Said charge is in error because it does not set forth the law of murder in the second degree, the evidence sustaining an issue of this character in that defendant had never seen deceased' before the time of the killing. They were utter strangers to each other, and the first notice that defendant had of the deceased was an unprovoked blow in the face wherein he was staggered back, he knew nothing' of the assault and battery until he was struck in the face, and the evidence did not show any knowledge of deceased or of an intended assault, and there was no premeditation or . forethought as set forth in the law to make the offense one of murder in the first degree; and the charge of court is in error in not charging second degree murder.”

This objection, together with the special charge requested by appellant, sufficiently called the attention of the court to the fact that he had failed to define implied malice and instruct the jury in regard thereto, and was also an election by appellant to be tried under the law as it existed at the time of the commission of the alleged offense. Pen. Code 1911, arts. 15, 17, and 18.

Again, appellant prepared a special charge defining manslaughter, and asked that it be given. In the objections made before the charge was read to the jury, appellant objected to the charge because the court failed to submit the issue of manslaughter, reciting that portion of the evidence which he deemed raised the issue. According to the evidence offered by appellant, at the time'the coat was handed to Watkins, the officer, a large heavy man, struck' the Mexican a blow in the face without saying a word, and, when the blow staggered the Mexican back, he pursued, continuing to rain blows on him. Our statute declares that an assault causing pain shall be deemed adequate cause to reduce an offense to manslaughter. The court should ■ have so instructed the jury, and if they found that the officer did assault the Mexican, without provocation, and that the blow or blows caused pain, give them the privilege of finding appellant guilty of this grade of offense.

As Mattie Dyson identified appellant as tlie person wlio fired tlie fatal shot, tlie court did not err in refusing tlie charge on circumstantial evidence.

Tlie fact that the indictment charged the offense to have been committed on or about March 10th, while the evidence shows the killing took place on March 29th, presents no variance, and the court did not err in so holding.

Mattie Lee Avery was not introduced as a witness by either the state or defendant; therefore the. court ruled properly in excluding the testimony of the witness Cisneros,, who would have testified that Mattie Lee Avery identified another person than appellant as the person who killed the officer. If appellant desired to prove that fact, Mattie Lee Avery was in attendance on court.

As Mattie Dyson testified that she at one time caused the arrest of Augustine Gonzales as the man who killed deceased, there was no error in excluding the hearsay testimony in regard to that arrest.

The application for a continuance is not in the record; consequently we cannot review this ruling of the court. If appellant desires the attendance of the witness Daniel Cruz, he will have an opportunity to secure his attendance on another trial.

The other bills in the record present no error; but, on account of the matters here-inbefore discussed, the judgment is reversed and the cause remanded.


text:
    HARPER v. STATE.
    (No. 3236.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1. Homicide (§ 259) — Sufficiency of Evidence — Manslaughter.
    Evidence held, to sustain a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dee. Dig. § 250.]
    2. Homicide (§ 158) — Evidence—Threats by Defendant.
    In a prosecution for murder, evidence that after a wordy altercation between defendant and deceased, and before the shooting, defendant had a pistol in his trunk, and had said that he had it for a man he was looking for, was not inadmissible on the ground that it did not refer to deceased; since, as defendant had had no difficulty with any other person, it wag reasonably certain that the reference was to deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    3. Witnesses (§ 355) — Impeachment—Competency — Reputation.
    On a trial for murder, a witness who had declined to state that he knew defendant’s general reputation for truth and veracity could not testify whether he had heard defendant’s general reputation in that respect discussed or questioned.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1154-1156; Dec. Dig. § 355.]
    4. Homicide (§ 163) — Evidence—Previous Difficulties of Person Killed.
    On a trial for murder, where defendant introduced evidence that the general reputation of deceased as a peaceable and law-abiding citizen was bad, that he had killed one man, and had had several difficulties, and trouble with one N., a question asking N. to tell about the difficulty and explain its circumstances was properly excluded, as the court could not try the merits of that difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.]
    5. I-Iomicide (§ 188) — Evidence — Self-Defense — Previous Difficulties of Person Killed.
    On a trial for murder, where defendant claimed self-defense and offered evidence that deceased was a quarrelsome man and had had a difficulty with one N., but it did not appear that defendant had heard the circumstances of the difficulty, N. could not be allowed to testify as to such circumstances; since only such matters as defendant knew or had heard of are admissible as affecting his viewpoint on the issue of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    6. Criminal Law (§ 829) — Instructions — Given Instructions.
    On a trial for murder, defendant’s requested instructions on the issue of self-defense were properly refused, where the court’s charge as given fully presented that issue as made by the testimony, and where the refused charges were but a reiteration of those given.
    [Ed. Note. — For other cases, see -Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    7. Homicide (§§ 300, 340) — Instructions — Self-Defense.
    On a trial for murder, an instruction on self-defense using the words “in good faith” is erroneous; but the use of such words is not a cause for reversal in every case, especially where, in applying the law to the facts of the particular case, the words do not appear in the charge submitting that issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. §§ 300, 340.]
    8. Homicide (§ 190) — Evidence — Threats by Deceased.
    On a trial for murder, threats by deceased, whether communicated to defendant or not, are admissible to explain the acts and conduct of the deceased at the time of the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.]
    9. Homicide (§ 110) — Justifiable Homicide —Self-Defense.
    Where deceased had made threats against defendant’s life, and defendant believed such threats were true, and at the time of the shooting deceased, by some act or word, reasonably created in defendant’s mind an apprehension that deceased would immediately execute such threats, or was then and there about to unlawfully attack defendant and inflict death or serious bodily harm, and defendant, so believing, shot and killed deceased, the homicide would be justifiable.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 140-142; Dec. Dig. § 110.]
    Appeal from Distinct Court, Wood County; R. W. Simpson, Judge.
    Clyde Harper was convicted of manslaughter, and lie appeals.
    Affirmed.

      Jones & Jones, of Mineóla, and M. D. Car-lock, of Winnsboro, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was indicted, charged with the murder of Frank Fowler. When tried he was convicted of manslaughter, and his punishment assessed at the lowest term fixed by law — two years in the penitentiary.

The record is quite voluminous, but there are but few questions presented which we feel called upon to discuss. The record discloses that deceased had a bad reputation for peace and quietude; that he had been in several difficulties, and had killed one man; that he bore the reputation of being a man who would carry a threat into execution. Evidence of threats made by deceased, some of which were communicated, and some .of which were not communicated, to appellant before the fatal encounter, was admitted. The evidence would show that up to a short time before the difficulty, apparently appellant and deceased had no ill will one towards the other, but deceased did bear ill will towards a brother of appellant, Wiley Harper, and out of this grew the feeling that is claimed to exist towards appellant. It appears that a man named Laney had killed Hillory Bailey, and deceased’s son was a witness in that case, and upon returning home with his father they met appellant in the road. Shelby Fowler, the son of deceased, says that when appellant met them appellant asked him how the trial came out, and he answered that no verdict had been reached. Appellant then remarked: “I always liked Hillory Bailey; he was a nice fellow, and that Bailey treated him better than nearly anybody in the county.” The contention of the state is that appellant then knew that deceased did not like Bailey; that Bailey had been charged before his death with having raped a niece of deceased. Anyway, the son testifies deceased spoke up and said: “Yes; that’s all right; all damn trash take up together.” xVppellant rode off, remarking as he did so: “I will see you some day, or I will get you some day.” Appellant’s version of this transaction is that instead of deceased saying what Shelby says, deceased said: “Yes; because you are such a God damn liar yourself.” When he replied to deceased that he ought not to abuse him (appellant), and deceased remarked: “I will kill you, too, you G-d d-n son of a b-h just like he was.” That he made no reply to this. That he merely rode off, and did not use the language Shelby Fowler attributed to him.

The evidence further shows that shortly after this the deceased visited Dallas, and while there secured a pistol; also that appellant secured a pistol from his brother, Wiley, he giving as his reason that he feared deceased would kill him, knowing the reputation of deceased. Outside of threats this is all that is shown to have occurred until the day of the killing. On that day deceased and appellant had met in a store at Stout, but no conversation is shown to have taken place between them. The state’s theory evidently is that appellant rode out on the road that he knew deceased would travel on his way home, and when deceased came along appellant began shooting, and continued to shoot until he had emptied his pistol, striking deceased several times; that deceased was driving along the road, making no demonstration.

Appellant testifies that he had gone out on this road to see some parties about participating in an entertainment that the literary society of Stout was going to give, and as he was returning he met deceased driving along the road; that when they met deceased said, “I hear you have been talking some about me cursing you out up yonder the other day, and I don’t know if this is not about as good time as any to settle it,” and stopped his wagon; that he (appellant) then put his hand on his pistol, and deceased threw his hand under his coat, when he (appellant) shot twice, then, getting off his horse, he shot four more times; that deceased did not fall until he shot the last shot, and all the time was acting as though he was trying to get a gun, and he was looking for him to shoot.

The evidence discloses that deceased was not armed at this time, and the verdict of the jury would indicate that they believed deceased made the remarks testified to by appellant, but they did not believe that he attempted to draw a pistol, nor made any demonstration whatever, and the evidence as a whole would support such a finding.

In the first bill pf exceptions appellant complains of certain portions of the testimony of the witness Jeb Moses. This witness testified that he stayed all night with appellant between the time of the occurrence of the first wordy altercation and the time of the shooting. On this occasion he saw a pistol in appellant’s trunk, and he testified appellant told him he had it for a purpose; he had a man he was looking for. This testimony was objected to on the ground that it was not shown it had any reference to deceased; that it did not individuate him as the man referred to. Appellant denies using such language, but if he did use it, the record before us renders it as certain as it is possible to do so, without the name being called, that deceased was the man referred to. He had had no difficulty with any other person — no differences of any character with any other party — and the court did not err in admitting the testimony; the statement being made so shortly after Shelby Fowler testified appellant had said to deceased: “I will see you some day, or I will get you some day.” As said in Mr. Branch’s work on Criminal Law:

“Though the name of deceased be not mentioned when the threat was made, yet if it can be reasonably gathered that deceased was meant, or included in the threat, it is admissible.” Section 479, and authorities there cited.

Appellant complains that the witness Tip Anderson was not permitted to answer the question: “Have you ever heard the defendant’s reputation for truth and veracity discussed or questioned?” As the witness had declined to state that he knew the general reputation of appellant in this respect, there was no error in the ruling of the court. Almost any person, whether he had ever met appellant or not, could probably answer the question that they had never heard his reputation in this respect discussed or questioned, but it would have little or no force, unless the person had placed himself in position to know and had been brought in contact with those with whom appellant associated. The rule is, before a person can testify to the general reputation of a person in any respect, he must answer that he knows his reputation in the respect inquired about. All witnesses who stated they knew appellant’s reputation in this respect were permitted to testify it was good, and the state offered no evidence in contravention of such testimony.

The defendant introduced evidence that the general reputation of deceased as a peaceable and law-abiding citizen was bad; introduced proof that he had killed one man, had had a number of difficulties; and evidence had been elicited that he had trouble with one John Nixon. The defendant called Nixon to the stand, and, among other questions, propounded to him the following: “Tell the jury about the difficulty, and explain the nature and circumstances of the difficulty to the jury.” The court did not err in sustaining the objections to his question, as the court should not have, in this case, tried the merits of that difficulty.

It is not stated in the bill that this witness had told appellant “the nature and circumstances of the difficulty,” or that appellant had heard them from any other source. All the record shows is that appellant testified afterwards that he heard of this difficulty, and that deceased had this difficulty was permitted to be proven, but appellant does not contend that he had ever heard the particulars, or the nature and circumstances attendant upon the difficulty, and it is only such matters as appellant knew or had heard which are admissible as affecting his viewpoint in a case where self-defense is an issue. This court, in a number of cases, has upheld the rule laid down by Wharton and Bishop:

“Mr. Wharton thus states the rule: ‘Taking the authorities as a whole, therefore, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, t'o prove that deceased was a person of ferocity, brutality, vindictiveness, and of excessive strength; such evidence being offered for the purpose of showing either: (1) That the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or (2) that he was in such apparent extremity as to. make out a case of self-defense; or (3) that the deceased’s purpose in encountering the defendant was deadly.’ Whart. Crim. Ev. § 69084. Mr. Bishop says: ‘Where the defendant, to excuse or mitigate his acts, claims that they were in self-defense or passion, the particulars of the transaction being thus material, and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.’ 2 Bish. Crim. Proc. § 610-.”

But it is manifest it is only such matters one may know or has been told which could possibly have any bearing. Patterson v. State, 56 S. W. 59; Lubbock v. State, 147 S. W. 258; Branch’s Crim. Law, § 473.

These are all the bills relating to the testimony, but there are a number reserved to the failure of the court to give special charges requested, and to the charge as given. Defendant asked 19 special charges, part of which were given, and he complains of the failure of the court to give each of the other 15. They all relate to the issue of self-defense, and we have read each of them carefully, but we think the court’s charge as given and the four special charges given at appellant’s request present fully this issue as made by the testimony. The court instructed the jury that they could not consider the fact that appellant was armed as a circumstance against him; that appellant was not required to retreat in order to avoid the necessity of slaying the deceased; that it was not necessary that there should be actual or real danger, if, viewing the facts and circumstances from his standpoint, it reasonably appeared to him there was danger of death, or of suffering some serious bodily injury, relating to the law of threats; that if he was justified in firing the first shot, he had the right to continue to shoot as long as it appeared to him, viewed from his standpoint, that the danger continued; that the appellant had the right to travel the road on which the difficulty occurred; and that he was travel- ■ ing this road would in no wise impair his right of self-defense — in fact, each and every phase bearing on the issue of self-defense was fully covered in the main charge, and the four special charges which were given at appellant’s instance. The special charges refused were but a reiteration in different language of those which were given by the court.

There is one criticism of the main charge, where the court in one paragraph-thereof uses the words “in good faith,” that should be noticed. These words should never ee used in the charge on self-defense, as has been frequently decided by this court, but the use of them is not a cause for reversal in every case. Puryear v. State, 56 Tex. Cr. R. 240, 118 S. W. 1042; Kelly v. State, 151 S. W. 304. Especially is this true where, in applying the law to the facts of the particular case, the words do not appear in that portion of the charge submitting that issue.

Appellant’s defensive theory is that, although deceased was not armed on this occasion, yet, in the light of the previous threats and the character and disposition of deceased, he believed his life was in danger. On this issue the court instructed the jury:

“If you shall find that, prior to the homicide, the defendant had been informed that the deceased had threatened his (defendant’s) life, and if you shall further find that at the time -he fired the first fatal shot, viewing the facts and circumstances from his standpoint, it reasonably appeared to the defendant that the deceased, Fowler, by some act then done or by words coupled with some act then done, manifested an immediate intention to execute the threat, if any, of which defendant had been informed, you will acquit the defendant, although you may find the deceased, Fowler, had made no threat against the life of defendant, and he was in no real danger at the time he fired such shot.
“The law provides that threats made by the deceased may be given in evidence and considered by the jury for the purpose of explaining the acts and conduct of the deceased at the time of the homicide, whether the same had been communicated to the defendant or no.t. Now, if you find from the evidence in this case that the deceased, Frank Fowler, made threats against the defendant, and you further find that such threats were not communicated to the defendant, then you may consider said threats for the purpose of explaining if they do the acts and conduct of the deceased Fowler at the time of the homicide.
“If you believe from the evidence in this case that prior to the homicide the deceased, Frank Fowler, made threats against the defendant’s life, and if you further find that such threats were communicated to the defendant, and the defendant believed that such threats were true, and if you further find that at the time of the homicide the deceased, Frank Fowler, by some act then done or some words then said, coupled with such acts, if any, which reasonably created in the mind of the defendant an apprehension that the deceased, Frank Fowler, was in the act of executing the threats so made, or if the deceased by his acts or demonstrations, if any, either alone or coupled with the words, if any, indicated that he was then and there about to unlawfully attack the defendant, and inflict upon him death or serious bodily injury, and that defendant, so believing, shot and killed the deceased, then the same would be justifiable homicide; and if you so believe from the evidence you will find the defendant not guilty, and so say by your verdict; and in passing upon this you may take into consideration the character and disposition of deceased as the same was known to defendant, as well as the habit of deceased, if any, of going armed, if the defendant knew of such habit.”

These charges fairly, fully, and succinctly presented the law as applicable to the evidence introduced on this trial, and there is no error in the record which would justify us in reversing the case.

' The judgment is affirmed.


author: HARPER, J. DAVIDSON, J.

text:
    RASBERRY v. STATE.
    (No. 3291.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Laeceny (§ 55) — Cattle Theft — Evidence.
    In a prosecution for cattle theft, circumstantial evidence held to sustain a conviction.
    [Ed. Note. — F'or other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    Davidson, J., dissenting.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Lee Rasberry was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of theft of cattle, and his punishment assessed at two years’ confinement in the state penitentiary. No exceptions were reserved to the introduction of testimony, no objections made to the charge of the court as given, and no special charges requested. So the only question presented for review is the sufficiency of the testimony to sustain the conviction.

The testimony shows that J. W. Howell was manager of the “O bar O” ranch, in Kent county; that a cow belonging to this company was found dead in the pasture, where she had been killed by being shot. The cow was skinned, and the two hind quarters taken; the remainder of the cow being left where killed. A number of witnesses testify to trailing a horse from this cow to appellant’s house. The track of the horse was measured on the ground where the cow was killed, and this measurement exactly fitted the track of the left fore foot of appellant’s horse. The track of a man was also measured, where the cow was killed, and this measurement fitted the track made by appellant at the time of his arrest. Fresh beef was found in appellant’s house, behind a wagon sheet, which witnesses swear were the hind quarters of a beef. Sheriff McCoombs testified that he measured the horse track and the man’s track at the place where the cow was found; that in trailing the track to appellant’s house he measured it twice more, and they were the same; that when he got to the house he says:

“I took the measure, and raised the foot of Rasberry’s horse, and put the measure lengthwise to it, cross-wise, and across the cork. 1 first measured the right fore foot of that horse, and found that the measurement lengthwise and crosswise was exactly right; but in measuring across the corks they were a little too narrow. Then I took up his left fore foot and measured it, and it was exactly correct with the measure. I do not know whether I measured the right foot or the left foot at the cow. The man’s track fitted appellant’s exactly.”

Appellant offered no explanation of his possession of this beef at the time, but on this trial some witnesses testify that appellant had been given one hind quarter of a beef, some ten days prior to the time the beef was found in bis bouse, by bis brother-in-law. However, the witnesses for tbe state swear there was more than one bind quarter of a beef found at appellant’s bouse, and that tbe beef found was fresh — not more than three or four days old at tbe outside. Mr. Bostick says, as, to tbe quantity of beef be found in Lee Rasberry’s bouse, that it looked to be two quarters of beef cut up in tbe boxes. “I think there was more than one quarter.” Appellant undertook to account for but one quarter ten days old, when all tbe witnesses say tbe beef found in appellant’s bouse was only three or four days old. Under such circumstances, we will not disturb tbe verdict.

Tbe judgment is affirmed.

DAVIDSON, J.

(dissenting). I think tbe evidence too inconclusive and uncertain to meet tbe requisite rule of circumstantial evidence. Tbe horse tracks did not fit; at least, tbe witnesses say one track did, and tbe other did not. Two bind quarters were taken — only one found at appellant’s bouse, and this be proved by uncontradicted evidence was given him by bis brother-in-law. Tbe facts to render tbe citizen infamous ought to be more cogent than this record discloses.


author: PRENDERGAST, P. J.

text:
    HATCHER v. STATE.
    (No. 3252.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Libel and Slander (§ 152) — Criminal Prosecution — Sufficiency of Information.
    Any information charging, in the language of the statute, that defendant falsely, maliciously, and wantonly imputed a want of chastity to a married woman, naming her, in the presence and hearing of certain persons, by saying that her husband was not the father of the child recently born to her, but that its father was a certain other man, sufficiently imputed a want of chastity, without innuendo.
    [Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. §§ 417, 419-424, 426, 427; Dec. Dig. § 152.]
    2. Indictment and Information (§ 161)— Amendment — Designation of Accused.
    Where defendant’s name was originally stated in the complaint and information as “Clara” Bell Hatcher, the court properly allowed an amendment noted on the minutes, so as to show her true name, “Mary” Bell Hatcher.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 516-523; Dec. Dig. § 161.]
    3. Criminal Law (§ 1099) — Appeal—Statement of Facts — Time for Filing.
    Where the term at which the case was tried adjourned May 9, 1914, and there was no order allowing any time after the term to file a statement of facts, a purported statement of facts filed May 21, 1914, would be stricken, because not filed in term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    Appeal from Jackson County Court; J. W. Bagby, Judge.
    Mary Bell Hatcber was convicted of slander, and sbe appeals.
    Affirmed.
    Gordon Lawson and E. E. Bateman, both of 'Palacios, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.

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

   PRENDERGAST, P. J.

Appellant was convicted of slander, and tbe lowest punishment assessed against her.

The complaint and information charged, in the language of tbe statute, that sbe falsely and maliciously and wantonly imputed a want of chastity to a married woman, naming her, in tbe presence and hearing of certain persons, naming them, in that sbe said that tbe husband of tbe slandered woman was not tbe father of tbe child recently born to her, but that its father was one of tbe Ashley boys. This language, without question, imputed a want of chastity to tbe slandered woman, and needed no innuendo to make it “clear, so that tbe court did not err in overruling appellant’s motion to quash tbe complaint and information because of a want of an innuendo.

Tbe appellant’s name was given originally in tbe complaint and information as Clara Bell Hatcber. Her true name was Mary Bell Hatcber. Sbe moved to quash the pleadings on that account. Tbe court entered an order that, it being suggested by defendant’s counsel that her name was Mary, etc., instead of Clara, tbe pleadings be corrected, and instructed tbe clerk to note tbe change on the minutes, which was done. The court committed no error in so doing. Cresencio v. State, 165 S. W. 936.

Tbe term of court at which this case was tried adjourned May 9, 1914. No order was made allowing any time after adjournment to file a statement of facts. What purports to be such statement shows to have been agreed to, approved, and filed May 21, 1914. Tbe Assistant Attorney General moves the court to strike out said statement of facts, because not filed in term time, which is here granted. Durham v. State, 155 S. W. 222.

There is no other question raised which can be considered in the absence of a statement of facts.

The judgment is affirmed.


text:
    DAVIS v. STATE.
    (No. 3304.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Homicide (§ 250*)— Sufficiency of Evidence.
    Evidence in a prosecution for homicide, where the defendant claimed self-defense, fcew sufficient to sustain a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 5] 5-517; Dec. Dig. § 250.*]

      2. Ckiminal Eaw (§ 1119*) — Appeal—Bill of Exceptions.
    Complaint of matters occurring at the trial, contained in a motion for new trial, not verified by a bill of exceptions or an affidavit, cannot be considered on appeal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. § 1119.*]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Harry Davis was convicted of murder, and he appeals.
    Affirmed.
    D. L. Graham, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at death.

There is a full statement of facts in the record, which we have carefully read and studied. There is no question that appellant killed the deceased. Not only he, but three other eyewitnesses, so testified. His sole defense was self-defense. He alone testified to that. The other three eyewitnesses who testified disputed him specifically and distinctly. The court and jury believed them, and not him. The court gave a full, fair, and complete charge, aptly applicable to the law and the evidence adduced. No complaint whatever was made thereto.

The evidence was amply sufficient to authorize the jury to believe and find, as it did, that appellant, a matured negro young man, had kept and lived in adultery with the deceased, a grown negro woman, for a considerable time before he killed her; that very recently before he killed her she received “the attention and preferred another negro man to him, which made him jealous, and, in effect, he threatened to kill her because thereof; that his killing her was inspired because of his jealousy and revenge for her threatening to quit him and take the other negro man in preference. He killed her between 8 and 9 o’clock one night. She was at her house with another negro woman and two negro men at the time of the killing. She and the other negro woman were sitting on her bed. He came into the room with a large pocketknife, either then opened or he opened it immediately after he stepped into the room. He deliberately and coolly walked up to her, put his hand on her shoulder, and stabbed her in the neck with the knife, evidently severing her jugular vein, when she was doing and saying nothing whatever to him which caused it. Blood spurted from the wound immediately some distance. He fled, hid, and avoided arrest for five days. Immediately after being stabbed, she arose, walked out of the room, and died. We think it wholly unnecessary to detail the evidence. The evidence was amply sufficient to sustain the verdict.

Appellant has no bill of exceptions in the record. It seems he took none during the trial. In his motion for new trial, signed by his attorney and sworn to by no one, he complains of some matters occurring during the trial. None of them, as stated, are verified by a bill of exceptions or an affidavit. We have considered them all, however. None of them, even if they could be properly considered, present any reversible error.

The judgment is therefore affirmed.


author: DAVIDSON, P. J.

text:
    KEITH v. STATE.
    (No. 3259.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Ckiminal Law (§ 1114) — Appeal—Recokd.
    Where the record contained neither bills of exceptions nor the evidence, and where the charge was such as could or might be applicable to a state of facts provable under the allegations of an indictment sufficient to charge the offense, assignments of error, after conviction, were not reviewable.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dee. Dig. § 1114.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    L. E. Keith was convicted of forgery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

This is a forgery conviction, the record being before us without bills of exception or evidence. It may be questioned that the exceptions, or what purports to be the exceptions, to the charge, are so presented under the late law as would require a revision of the matters set forth; but, be that as it may, the evidence is not before us, and the charge is of such a nature as could or might be applicable to a state of facts provable under the allegations of the indictment. Under quite a line of decisions, the indictment is sufficient to charge the offense of forgery.

As the record presents the matters,' the assignments of error are not reviewable, and the judgment will be affirmed.