author: HARPER, J. PRENDERGAST, P. J.

text:
    EDWARDS v. STATE.
    (No. 3268.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    On Motion for Rehearing, Dec. 23, 1914.)
    1. Homicide (§ 268) — Murder—Evidence.
    Where the state showed that accused, becoming angry at what decedent had said about him, lay in wait for him and without decedent doing anything at the time killed him, the issue of murder was raised and properly submitted, though the testimony of accused presented the issue of self-defense and manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig! § 268.]
    2. Homicide (§§ 276, 282) — Evidence—Self-Defense — Manslaughter.
    Where accused, having been informed that decedent had spoken ill about him, met him and stated that he wished to speak to him in regard to such statements, and decedent replied that he had not made the remarks and at the same time pulled out his knife, and accused picked up a stick, and decedent cut at accused, who then struck decedent with the stick, killing him, the issues of self-defense and manslaughter were raised authorizing submission thereof to the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 569, 574; Dec. Dig. §§ 276, 282.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence.
    An instruction, that where one person intentionally kills another it depends on the circumstances whether the act is justifiable, or, if not justifiable, the degree of guilt, forming a part of the charge defining murder and not a part submitting the issues to the jury, 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.]
    4. Homicide (§ 340) — Harmless Error — Erroneous Instructions.
    Where accused admitted that he intentionally struck the blows which killed decedent under circumstances showing an intention to kill, and relied on self-defense and on facts reducing the killing to manslaughter, and there was no issue of accidental homicide or any issue rendering the homicide other than an intentional one, the error, if any, in a charge that where one person intentionally kills another it depends on the circumstances whether the act is justifiable, or, if not justifiable, tbe degree of guilt, was not prejudicial.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Witnesses (§§ 363, 370) — Cross-Examination — III Will and Bias.
    ' III will, bias, or interest of a witness is material as affecting the weight to be given to his evidence.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1177, 1178, 1181, 1189; Dec. Dig. §§ 363, 370.]
    6. Criminal Law (§§ 419, 420) — Evidence— Heabsay Evidence.
    Testimony of witnesses as to what a third person, notifying them of the difficulty between accused and decedent, reported, was inadmissible as hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law. Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    7. Criminal Law (§ 1091) — Exclusion of Evidence — Bill oe Exceptions — Suejti-ciency.
    A bill of exceptions complaining of exclusion of evidence must show what the witness would have testified to if permitted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 726) — Argument op Prosecuting Attorney.
    .Where counsel for accused in his argument dwelt on the fact that accused had a good reputation for peace, and therefore would not have committed the killing charged, the argument of the state’s counsel, in 'reply, that he had known of a minister who had always borne an enviable reputation commit a heinous murder after he was 60 years old, was proper within the rule that circumstances of other cases, actual or hypothetical, may be used in illustrating argument, provided counsel does not present to the jury prejudicial facts not in evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    9. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    Where, under White’s Ann. Code Cr. Proc. art. 598, providing that on a second or any subsequent application for a continuance on the ground of the absence of a witness, accused must show that the testimony of the absent witness cannot be procured from any other source, accused could not have obtained a continuance on the ground of the absence of a witness testifying to facts proved by other witnesses, a new trial on the ground of newly discovered testimony of the witness was properly denied.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    10. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence.
    Where accused knew during the three years the case against him was pending that his defense was that decedent had assaulted him with' a knife and had cut his suspender and that he met a third person immediately after the difficulty, a new trial on the ground of newly discovered evidence of the third person, to the effect that he met accused and saw that his suspender was cut, was properly denied for want of diligence to procure the testimony at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. §■ 939.]
    11. Criminal Law (§ 958) — New Trial— Newly Discovered Evidence.
    An application for new trial on the ground of newly discovered evidence must show that it was not owing to want of diligence that the evidence was not discovered, and that it did not come to accused’s knowledge before the trial, and the allegations must, at least, be sufficient to entitle accused to a continuance on the ground of the absence of a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    12. Criminal Law (§ 941) — New Trial— Newly Discovered Evidence — Cumulative Testimony.
    A new trial on the ground of newly discovered evidence, consisting of the testimony of a witness, merely cumulative to a fact not disputed, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law,. Cent. Dig. §§ 2328-2330; Dec. Dig. § 941.] •
    Oh Motion for Rehearing.
    13. Witnesses (§ 370) — Cross-Examination —Bias.
    Where, on a trial for murder, the evidence showed that accused and decedent had, at an election some months prior to the killing, supported opposing candidates for a public office, and that in consequence thereof ill feeling arose between them, and that they supported opposing candidates for a county office at the election held on the day of the killing, and that decedent at that time supported a woman for the office, while accused supported a man, refusal to permit accused to show that a state’s witness giving more positive and stronger testimony against accused than any other witness supported the woman at-the election and worked for her, to show bias or feeling against accused, was erroneous.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. § 370.]
    14. Witnesses (§ 376) — Cross-Examination —Redirect Examination.
    Where, on a trial for murder, the evidence showed ill will between accused and decedent arising from the fact that they had supported at elections opposing candidates, and the state to break the force of the testimony of a witness for accused showed such friendship of the witness to accused as to bias him towards him, accused, on redirect examination, ought to be permitted to show by the witness that he and decedent supported the same candidate.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1204-1206; Dec. Dig. § 376.]
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    W. J. Edwards was convicted of murder on implied malice, and lie appeals.
    Reversed and remanded on rehearing.
    W. J. Townsend, Jr., and Mantooth & Collins, all of Lufkin, for appellant. 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

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

   HARPER, J.

Appellant was convicted of murder upon implied malice, and his punishment assessed at five years’ confinement in the state penitentiary.

One of the main contentions of appellant is that the court erred in submitting the issues of murder in the first degree and second degree; that the evidence only shows appellant to be guilty of manslaughter, if guilty of any offense. If we view the case solely from the evidenee_ offered in behalf of appellant, doubtless this would be true; but when we take the evidence offered in behalf of the state we think it would clearly authorize a conviction of murder, if believed to be true. The record discloses that deceased, Mr. Bean, and appellant, were on different sides in a senatorial contest in 1910; that Mr. Edwards, appellant, was manager of this election, and deceased charged him with improper conduct in connection therewith (had not given the candidate favored by Bean the number of votes actually received); that Bean was angry and had made threats to prosecute appellant and do him personal violence. The record does not show that appellant, prior to hearing of these threats of prosecution and to do him violence, had any ill will towards Bean. Another election, the general election, came on in November, at which considerable interest was manifested over the election of a county clerk; Mrs. Brit Trevathan and Dan Ivey being the candidates. Deceased favored the election of Mrs. Trevathan, while appellant favored the election of Mr. Ivey. Appellant remained around the polls a good portion of the day, and deceased came there to vote late in the afternoon. It appears that, about the time deceased came to vote, Jordan and others claimed to have received information that Mrs. Treva-than was running ahead of Ivey, and were joking appellant. All say this was in a good humor. The state’s contention is that appellant, knowing that deceased was at the polls, went up the road some 70 yards (the way deceased must return in going to his store) and sat down; that, when deceased and Cullen Arnett came along the road on his way to the store and got about even with appellant, appellant raised up and said, “I would like to speak to you, Mr. Bean,” and Bean stopped, taking one step towards appellant, when appellant advanced on him, and asked him about what he had been saying about him, repeating the remarks he had heard, and that Bean replied he did say it. Appellant had in his hand a stick about three feet long, and as large as a man’s wrist — some speak of it as a wagon standard. Some witnesses for the state, to quote their own language, say:

“I know that Mr. Bean never made any effort of any kind to hit or strike Mr. Edwards during the entire difficulty. He never did attempt or make any effort to hit or strike Mr. Edwards, for I know that if he had I could and would have seen it.”

The state’s evidence further shows that, after the above conversation, appellant struck or struck at Bean with the stick, and then struck Bean the second time, felling him to the ground; that appellant walked around Bean and, using both hands, struck Bean twice while he lay on the ground, once in the back, and once more on the head. The doctor thus describes the wounds:

“I examined his head first, and the first wound I found was here (indicating) on the right side, like, of his head, right around this way (indicating on his own head), and it was just about 2 inches in front of his ear upward, and it extended back this way (indicating on his head backwards) about 3 or 3% inches, and that wound lay the scalp open about 1 or 1% inches wide, and that lay open to the bone; and then I found another small wound on his head, on the left side, which was about in the edge of his hair up about here (indicating). And then back here (indicating on his own back) on his back and about from his shoulder blade down the back, and that was about the extent of his injuries as I now recall them. This wound up here on his head that I said extended back some 3 or 3% inches, I couldn’t say whether that was caused with one or two licks. Mr. Bean is now dead. He died that morning after I had seen him that evening, about 4 or 4:30 o’clock in the morning. I think he must have lived about 9% or 10 hours after he received his injuries. He died from concussion and contusion of the brain. The blows, no doubt, that he received caused this concussion of the brain, which caused his death. These wounds that I have described caused this condition which produced his death. This place I have spoken about on the left side of his head was just a small place, and looked like it might have been made by him falling on gravel or cinders, or something of that sort. It didn’t appear to have been made with a lick. This place up in his head I am sure was caused by a lick with some heavy instrument, as it was open and lay open to the bone for the length I have said already. I couldn’t tell, as I said before, whether that was caused with one blow or more than one blow. That bruised place on his back must have been some 12 or 15 inches in length, and it was 4 or 5 or 6 inches wide. And as to the condition of that, will say that it was just a bruised place that size, discolored, blue and black, discolored about 6 inches wide, across the back.”

It is thus seen that the state’s ease is that appellant, becoming angry at what Bean had been saying in regard to the senatorial election, went up the road and sat down where he knew Bean would pass in returning to his store; that as Bean came along he accosted him, and without Bean doing anything at that time that would be cause, in law, to produce a state of mind to reduce the offense to manslaughter, killed his adversary. The state’s evidence makes a clear case of murder, if the jury believed the testimony, and the court did not err in submitting that issue to the jury, and refusing those special charges of appellant in which he sought to have the court instruct the- jury that under the evidence, even though they believed appellant guilty, they would not be authorized to find him guilty of no higher grade of offense than manslaughter. Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Neyland v. State, 13 Tex. App. 536; Hill v. State, 11 Tex. App. 456; McKinney v. State, 8 Tex. App. 626.

On the other hand, appellant’s testimony would tend to prove that, when, they were joking him about the election of county clerk, he placed no faith in the reports they claimed to have received, and he was going up this road to go to a telephone to make inquiries himself; that his nephew started with him, but getting behind, in joking with other men, he stepped on the side of the road to wait for Ms nephew, and at tMs time deceased came along with Cullen Arnett, and, having been told what deceased had been saying about Mm, he said, “Mr. Bean, I understand you have made some remarks, and I want to speak to you in regard to them when Bean replied, “I did not,” running his hand in his pocket and pulling out Ms knife. He says he told Bean “to shut up that knife,” and stooped down and picked up the stick with which he afterwards killed Bean; that Arnett jumped in between them, Bean at the time trying to get around Arnett, when he told Arnett to get out of the way. As Arnett got out of the way, he shoved deceased back, and, as he did so, deceased cut at him, cutting his suspender in two and cutting his shirt; that he then struck Bean with the stick — he says he does not know how many times, and does not know whether he struck him after he was down or not. But all the witnesses, both for the state and defendant, make it plain that appellant did strike Mm twice after he fell. His testimony would present self-defense and manslaughter, and both issues were submitted by the court to the jury; appellant not excepting thereto in any manner. The only objections to the charge being: (1) That the court erred in submitting the issue of murder. As hereinbefore shown, this presents no error, .for the state’s evidence would support a waylaying. (2) Defendant contends that the following paragraph was upon the weight to be given the testimony:

“Where one person intentionally kills another, it depends upon the circumstances attending the killing whether the act is justifiable or not, or, if not justifiable, the degree of his guilt.”

This was in that part of the charge defining murder, and not in that portion submitting the issues, to the jury. All definitions necessarily state the law, as in defining malice ; but this does not tell the jury that in this case the evidence shows an intentional killing; it is but telling the jury what the law is in case of an intentional killing, and such instructions have always been held not to be upon the weight to be given the testimony.

Besides, in this case there ovas no issue of accidental homicide, or other issues raised by the testimony that could have rendered this other than an intentional homicide. Appellant testifies to facts which would justify, but he admits he intentionally struck the blows under circumstances which show an intention to kill.

The other objections made to the charge were sustained by the court and corrections made in accordance with the suggestions.

The ill will deceased had manifested towards appellant, in so far as this record discloses, grew out of the election of a senator, held some time prior to the general election. While, perhaps, they advocated different persons for the office of county clerk in the general election, yet there is nothing to indicate that any ill will had developed between any person or persons on account of this latter contest. Witnesses for the state and defendant both testify that, while there were some pleasantries passed, and they were joking each other, all were doing so good-humoredly, and there is nothing to indicate that deceased took any part in it. Under such circumstances, the court did not err in sustaining objections to questions to witnesses to ascertain which way they voted in the contest for county 'clerk. No good purpose could or would be subserv-ed, for there is nothing in the record to suggest they entertained ill will towards appellant on account of his position in that election. Neither do the bills claim that such questions were expected to be followed by questions to the witnesses, or state that other proof would be offered to show that they did entertain ill will towards appellant on account of his choice for county clerk. In fact, a brother of Mrs. Trevathan, Walter Jordan, was on this trial a very material witness for appellant, and yet the record shows that appellant opposed the election of Mrs. Trev-athan. Of course, the ill will, bias, or interest of a witness is always material as contended by appellant; but this difficulty grew out of the senatorial contest, and the record discloses that the election for county clerk did not enter into it in any manner, nor that any ill will between any one grew out of the latter election, nor does appellant claim in his bill that he expected to show that any ill will did grow therefrom, only that he could have shown that some of the witnesses voted different from the way appellant voted. These bills present no error, as the answer, if made as contended by appellant, would not have shown bias or ill will towards appellant.

In another bill it is claimed the court erred in not permitting B. Ladd and others to testify what the “report was the negro made,” who notified them of the difficulty. This would be hearsay pure and simple, and the court did not err in excluding it. The negro was not a witness in the case. If he knew any facts that would be material to defendant, he should have been called as a witness, and not seek to elicit that fact by what he (the negro) told some other person. Again, the bill is insufficient to present the question for review, for it does not state what the witness would have testified the negro reported, and, if the testimony had been admissible, it would be impossible for us to determine whether or not it would or could have been material or relevant.

In another bill it is shown that in presenting the case to the jury defendant’s counsel “had dwelled on the fact that appellant had a good reputation as to peace andviolence and therefore would not have committed an unlawful killing.” In rejoinder, state’s counsel urged that “he had known of a minister of the gospel, who had always borne an enviable reputation, committing a heinous murder after he was 60 years old.” It is true that there was no evidence in the record that this minister had committed the crime of murder, yet if counsel, in their argument, are so restricted that they cannot use illustrations, it would confine their argument within too narrow limits. In the Standard Encyelopsedia of Evidence it is said:

“The relating of jokes, circumstances of other cases, actual or hypothetical, or instances similar to those involved, either real or imaginary, in illustrating, emphasizing, or impressing a point in argument, is usually considered within the bounds o'f proper forensic discussion.” Hudson v. State, 44 Tex. Cr. R. 257, 70 S. W. 764; Jones v. State, 46 S. W. 933.

This is not only the rule in our own state, but elsewhere. State v. Busse, 127 Iowa, 318, 100 N. W. 536; Jackson v. Commonwealth, 100 Ky. 239, 38 S. W. 422, 1091, 66 Am. St. Rep. 336; People v. De Camp, 146 Mich. 533, 109 N. W. 1047; State v. Gannon, 75 Conn. 206, 52 Atl. 727. However, counsel must not use this license to get before the jury prejudicial facts not in evidence, for if they do it will work a reversal of the case.

The only other bill in the record relates to what is termed newly discovered evidence. This case had been pending on the docket more than three years at the time of this trial. This fact, of course, would not prevent the evidence from being newly discovered, if in fact the bill had shown what diligence had been used by appellant to discover this evidence before the trial. In this the bill is lacking. However, it may be said there was no fact or circumstance within the knowledge of appellant that would put him on inquiry as to the testimony of Mr. Burns. This witness says he would testify on another trial he heard deceased say that at the senatorial election, of which appellant was manager, he had positive proof that some 10 or 12 votes had been changed by appellant, and he expected to get appellant indicted; that he was going to push it to the bitter end, and, having a knife in his hand, said he “intended to use that knife and to drop his own blood to carry his point; that he was going to use the knife on appellant if he failed in the prosecution.” This was a threat, and appellant could not know that deceased had made this threat to this witness and there was nothing to put him on inquiry in regard to it. However, this threat, it is plain, was not communicated to defendant; it could have no bearing on how the circumstances appeared to him at the time, and if known at the time of the trial would have been admissible only on the issue as to who began the difficulty. However, it would have been admissible on that issue, and the question that arises, had he known this fact, had the witness been summoned and failed to attend, would this have been sufficient ground for continuance? If so, the new trial should have been granted. The record discloses this case has been continued a number of times — at least, six. Our Code provides that on the second or any subsequent application the appellant must allege and swear “that the testimony cannot be procured from any other source.” Article 598, White’s Ann. Code. Could appellant make this application under the circumstances as proven in this record? He knew them, and the record discloses that several witnesses were present and would swear and did swear on the trial to threats made by deceased of the same character and kind. Jim Dyer, D. Crumpler, Sam Trawick, John O’Quinn, Frank Carsons, and perhaps others testified to similar threats as the witness Burns says he would testify to on another trial. So, if appellant had known of his testimony, and had the witness' Burns summoned as a witness, his absence under the statute would not have been ground for a second or subsequent continuance of the case, and, of course, under such circumstances presents no ground for a new trial.

The other witness alleged to be newly discovered, Mr. Red, appears in a different light. He says immediately after the difficulty he met appellant, and at the time he met him appellant’s suspender was cut. If Red knows he met appellant, appellant also knew he met Red, and that his suspender was cut; consequently he was in possession of facts that, to use diligence, he should, during the three years’ time, have made inquiry of this witness as to whether he saw this cut before they met. He was in possession of facts that required diligence on his part. For three years he knew that his defense was that deceased had assaulted and cut at him with his knife and cut his suspender; for three years he had known that he met Mr. Red immediately after the difficulty, and ordinary prudence would have suggested to him to inquire of Mr. Red whether or not he saw this cut; yet during all that time he made no such inquiry. In Carrico v. State, 36 Tex. Cr. R. 618, 38 S. W. 37, it was held that a new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. It has always been the rule in this state that the application must show that it was not owing to want of due diligence on the part of the defendant that it was not discovered, and did not come to his knowledge before the trial. West v. State, 2 Tex. App. 209; White v. State, 10 Tex. App. 167; Shaw v. State, 27 Tex. 750; Duval v. State, 8 Tex. App. 370; Hutchinson v. State, 6 Tex. App. 468; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; Reagan v. State, 57 Tex. Cr. R. 642, 124 S. W. 685; Cooper v. State, 58 Tex. Cr. R. 598, 126 S. W. 862; Da Flour v. State, 59 Tex. Cr. R. 645, 129 S. W. 351; Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Johnson v. State, 62 Tex. Cr. R. 284, 136 S. W. 1058; Wilson v. State, 63 Tex. Cr. R. 81, 138 S. W. 409.

As said in Simms v. State, 1 Tex. App. 627, In applications for a new trial on account of newly discovered evidence, the allegations must at least have been sufficient to entitle one to a continuance, and should satisfy the court that the appellant had not been remiss in - diligence. Several witnesses on this trial testify to seeing appellant shortly after the difficulty, and that his suspender was cut, so in a second or subsequent application for a continuance appellant, had he known this witness would testify as alleged, could not have complied with the law in making application for a second continuance for he knew that Bob Edwards, B. Ladd, Bud Henson, and other witnesses were in attendance on court and would and did swear on the trial that appellant’s suspender was cut as claimed by him.

As to the witness Jap Calvert, his testimony would be but cumulative of other testimony; in fact, would be testimony as to a fact not disputed in the record — that deceased owned a barlow knife.

We have given this case careful and thoughtful consideration on all the grounds in the motion for a new trial, and especially to those grounds relating to the remarks of counsel for the state and the one alleging newly discovered evidence. There can be no question that the other grounds present no error. As to these two, after diligent inquiry, we have come to the conclusion that they present no ground under the decisions of this court for reversal of this case, and the judgment is affirmed.

On Motion for Rehearing.

PRENDERGAST, P. J.

There is but one question necessary to be further discussed; all others, as raised in the record, were correctly decided in the original opinion. That question is whether or not appellant should have been permitted to have asked W. O. Odom, one of the state’s witnesses, on cross-examination, and had him answer, that he was in favor of Mrs. Trevathan for county clerk, and went to Pollock the day of the election to work for her and against Mr. Ivey, her opponent, and that he was on the opposite side of that question from appellant, shown by his bills 1 and 2. Appellant claimed this excluded evidence would have shown, or tended to have shown, that said witness had animus and bias against him, which accounted for his testimony so strong and pointed against him.

We have re-examined this question and the authorities applicable thereto, and have reached the conclusion said excluded testimony was material, and the court erred in excluding it, which must result in the reversal of the judgment herein.

The trial judge in approving said, bills qualified them by referring to the whole statement of facts herein, and particularly to said Odom’s evidence, and in the second, also, that Odom testified “he went up to Pollock on other business.”

We have also carefully re-read the whole record and statement of facts.

There is no question but that said Odom’s testimony was more pointed, specific, positive, and stronger against appellant than the testimony of any other witness for either side, and especially on the sharply contested and contradictory points. Several eyewitnesses to the whole affair testified. Some of them were right with and at said Odom, and with fully equal opportunity to see and hear all that was said and done by appellant and deceased at the time of the killing, which he .had — others much closer than he, and with better opportunity to see and hear all.

It therefore became very important to appellant that he should have the right to prove any fact which would show or tend to show the hostility, animus, or bias of this witness against him, so that the jury could properly weigh his testimony.

One of the main objects of sifting a witness on cross-examination is to show this. In the recent ease of Roberts v. State, 168 S. W. Ill, we had occasion to review, and Write on, this question rather fully. Therein we said:

“Every text-book writer on the subject, without any exception, holds that to show prejudice, bias, animus, hostility, or interest of any witness is strictly cross-examination.”

We also therein cited and quoted, as the law, what is said by 5 Jones on Ev. § 828, as follows:

“It is elementary law, supported by all authority, that the state of mind, of a witness as to his bias or prejudice, his interests involved, his hostility, or friendship toward the parties, are always proper matters for investigation, in order that truth may prevail and falsehood find its proper level. If the inner workings of a witness’ mind are actuating his testimony, and the workings of that mind are brought forth to the light and held up in full view before the jury, results will be obtained much more in accord with truth and justice than though the witness’ testimony is weighed and measured by his words alone. ‘It is always competent to show that a witness is hostile to the party against whom he is called; that he has threatened revenge; or that a quarrel exists between them. A jury would scrutinize more closely and doubtingly the evidence of a hostile than that of an indifferent or friendly witness. Hence it is always competent to show the relations which exist between the witness and the party against, as well as the one for, whom he is called.’ If the witness denies his hostility or bias, this may be proved •by other witnesses. The cross-examination would be of little value if the witness could not be freely interrogated as to his motives, bias, and interest, or as to his conduct as connected with the parties, or the cause of action; and there would be little safety in judicial proceedings if an unscrupulous witness could conclude the adverse party by his statements denying his prejudice or interest in the controversy. And generally the moving circumstances which might impel the witness to swear falsely may form the subject of inquiry.”

To the same effect, see Underhill on Cr. Ev. § 248; 1 Whart. Grim. Ev. § 477 ; 3 Chamberlyn, § 1785 ; 7 Ency. of Ev. p. 407; 2 Wigmore on Ev. § 948 et seq. It is needless to cite the other text-books. Some of these authorities discuss the question more elaborately than others.

This question has many times been before, and decided by, this court. The court through Judge Davidson, in Earles v. State, 64 Tex. Cr. R. 539, 142 S. W. 1182, said:

“This rule has been followed in subsequent cases. The latest that the writer has noticed is O’Neal v. State, 57 Tex. Cr. R. 249, 122 S. W. 386, where this language was used: ‘Animus, motive, or ill will of a prosecuting witness is never a collateral or irrelevant question in a criminal case. The bias or prejudice- can thus be shown and is in most cases of great importance and is always material in order to enable the jury to form a correct judgment as to the credit to which the testimony of the witness is entitled. Rosborough v. State, 21 Tex. App. 672. 1 S. W. 459; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Gregory v. State, 48 S. W. 577; Reddick v. State, 47 S. W. 993. And for a great number of authorities, see White’s Annotated Code Criminal Procedure, § 1108.’ ”

Again this court, through Judge Davidson, in Pope v. State, 143 S. W. 612, clearly holds to the same effect, citing a large number of the decisions of this court so holding. Among other things, in that case, Judge Davidson correctly wrote:

“Even where a witness admits his bias or prejudice, the extent of this may be shown. Mason v. State, 7 Tex. App. 623; Magruder v. State, 35 Tex. Cr. R. 219, 33 S. W. 233; Lyon v. State, 42 Tex. Cr. R. 506, 61 S. W. 125. Defendant may also prove facts which show motive on the part of the witness to testify against him, or which show that the witness is testifying under circumstances which make it necessary to testify against defendant in order to save himself. Watts v. State, 18 Tex. App. 384. Defendant may also show animus and prejudice on the part of the state’s witness towards him and its extent. In such examination great latitude is allowed when the object is to impeach the credit of such witness. Mason v. State, 7 Tex. App. 623; Blunt v. State, 9 Tex. App. 235; Daffin v. State, 11 Tex. App. 79; Watts v. State, 18 Tex. App. 383; Tow v. State, 22 Tex. App. 184, 2 S. W. 582; Bennett v. State, 28 Tex. App. 540, 13 S. W. 1005; Lyon v. State, 42 Tex. Cr. R. 506, 61 S. W. 125. Motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility. In addition to the cases already cited, see Sager v. State, 11 Tex. App. 111 ; Bonnard v. State, 25 Tex. App. 195, 7 S. W. 862, 8 Am. St. Rep. 431; Green v. State, 54 Tex. Cr. R. 7, 111 S. W. 933; Gelber v. State, 56 Tex. Cr. R. 462, 120 S. W. 863. These extracts and statements are taken from Branch’s Crim. Law of Texas, § 861. The cases cited by Mr. Branch under these propositions sustain each proposition under which they are cited. The statements of the proposition are so clear, terse, and accurate by Mr. Branch that it is deemed unnecessary to do more than to state the propositions as he has stated them. They are clear, forcible, to the point, and accurate.”

The homicide, in this case, occurred on the evening of election day, November 8, 1910, at the little town of Pollock in Angelina county. At that election Mrs. Trevathan, a lady, was a candidate for county clerk of said county against Mr. Ivey, a man. This was a very unusual occurrence. Prom the record it is shown that that race was hotly contested, and was the only race in the whole election in which there was any special interest taken. Appellant was active against the lady, and as active for the man at said town of Pollock, near where he lived and which was his voting place. Said Odom did not live at Pollock, but lived at Lufkin. That evening he went from Lufkin to Pollock, and soon after reaching Pollock went near the polling place where some of the voters and workers for said candidates were congregated. He was with others there who were later shown to have been laughing at and joking appellant, to the effect that they had just heard from Lufkin, that his man Ivey was badly defeated by said lady. In his direct examination he said nothing about this, and said nothing to indicate he had any feeling one way or another, either for or against appellant. In other words, on direct examination, a juror would be impressed with the idea he was a wholly disinterested witness. In his cross-examination at first he seemed to try to make it appear he paid very little, if any, attention and knew very little of what was said, or who said it, in joking and laughing at appellant, and that he took no part therein. However, after being pressed for a while he did say:

“I believe that I told him myself that he had as well take it good-humoredly, just as a joke, is all.”

He was then further pressed on cross-examination along this line, and finally, as-stated in said bill 1, among other things, to show by his answers he was prejudiced as a witness against the defendant, he was asked in substance: “How did you stand on the election” (between said lady and Ivey); and, “Did you not go up there (to Pollock from Lufkin) to the election for the purpose of working against Ivey, and in favor of Mrs. Trevathan?” And this bill says he would have sworn he (the witness) was in favor of Mrs. Trevathan and defendant was for Ivey. And in the second bill he was asked, “You were on the opposite side of that election to the defendant, were you not?” and would have “testified that he was working on the opposite side to the defendant.” On the state’s objections to these questions and proposed answers that they were immaterial and irrelevant, the judge sustained the objections and excluded the testimony.

The fact that a lady was a candidate for county clerk against a man would arouse not only an interest by her friends in her behalf, but also tend strongly to prejudice them against any one who would actively oppose her and favor the man. In hotly contested elections even between men candidates for an office, the partisan friends of each frequently become hostile to one another, which sometimes results in blows and fights. It is quite 'probable, and the evidence excluded would have tended to show, that Odom was hostile to appellant caused by his active support of the lady, and appellant’^ opposition to her, and the jury should have had the excluded testimony to have enabled them to properly weigh his evidence against appellant.

Appellant’s bill No. 4 shows, in effect, 'that his witness Louie Odom gave important testimony in some particulars favorable to him; that the state, to break the force of it, in cross-examination made proof by the, witness showing such friendliness to appellant as to bias him towards appellant. Bearing on this feature, we are inclined to think on redirect examination the witness ought to have been permitted to testify he and deceased were on the same side in said election.

For the error in excluding said cross-examination of said witness W. O. Odom, a rehearing is granted, and the judgment now reversed, and ■ the cause remanded.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    McGREW v. STATE.
    (No. 3360.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    Homicide (§ 257) — Evidence—Sufficiency. Evidence held to sustain conviction of assault to murder. ■ '
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dee. Dig. § 257.]
    Appeal from District Court, Lamar County ; Ben I-I. Denton, Judge. ■
    Bud McGrew was convicted of assault to murder, and appeals.
    Affirmed.
    Sturgeon & Ownby, of Paris, for appellant. 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

   PRENDERGAST, P. J.

Appellant was convicted of assault to murder J. D. Jones, and his penalty was assessed at the' lowest authorized by law. The only question is whether or not the evidence is sufficient to sustain the verdict.

Appellant was a young man 25 or 26 years old; lived with his father, Will McGrew, on his father’s farm. The farms of Will Mc-Grew and said Jones adjoined. Shortly before the assault, trouble arose between Jones and Will McGrew about their dividing line. McGrew claimed some of the land in Jones’ inelosure, and had put up thereon several panels of wire fence. After dinner on the day of the assault, Jones took his ordinary claw hammer and wire clippers out on his place to fix his fence. While thus out he cut the wires of the fence Will McGrew had placed in his inclosure and on land claimed by him. Appellant and his father that day were at work plowing in his father’s field. They had just returned from dinner, and were hitching up their teams to their plows to begin work. Jones called Will McGrew to him from some 50 yards distant, or farther, and when McGrew got to him he told him that he had cut hell out of that wire fence which he had placed on his land, and that if he wanted the wire to get it that day, and if he did not get it that day not to put his foot over there any other time. There was some further conversation between Jones and Will McGrew at the time. Then Jones further testified on direct examination:

“I was talking — had been talking — to Will McGrew, and had got about through with him, and Bud McGrew put in and said something. I told him, ‘None of his business’ and to shut his mouth, and he got mighty mad, and said not to cuss him; and I did cuss him, and called him a son of a bitch, and Bud run around like this behind his daddy, and says, ‘You are another one.’ Well, I started around after him, and as I started around Will McGrew moved up, and as I stopped, and about that time, Bud McGrew reached over from behind Will McGrew with a pole about 8 or 10 feet long, right over —nearly over — Will McGrew’s shoulders, and struck me on the head. I sunk to my knees, and Will McGrew laid me down, and says, ‘That will do.’ * * * Bud McGrew was in something like 5 or 6 feet of me when he struck me, and Will McGrew was right in front of me and almost against me. * * * Well, now, as to what Bud McGrew said, I can’t say. I just remember he put in and made me mad, and 1 told him to shut up. I don’t know what Bud said that day before or in regard to the fence at the start.”

On cross-examination he testified:

“I don’t think 'I cursed on the start, gentlemen, because I am not a swearing man. I don’t swear, only on extreme provocations; however, I may have sworn a little before it was over with. I cursed Bud, and called him a son of a bitch, before he hit me. I suppose I still had my hammer in my hand when I was cursing Bud. I don’t remember putting it down. Q. Did you follow him any after you called him a son of a bitch? A. Not until he called me a son of a bitch. I never started until after he called me a son of a bitch. I did not at any time malee any attempt to hit either Bud or Will McGrew. I stated on the examining trial in this case: ‘No; I was not close enough to hit Bud, and was not trying to hit Will.’ Bud McGrew or Will McGrew, either one, was not saying anything to me until I went down into the field where they were at work and began this trouble. Q. Did you state on the examining trial, in answer to this question, ‘Did you try to hit Bud?’ ‘No, sir; I could not get close enough to him.’ A. Yes, sir. Q. Did you state on the examining trial, ‘When you started after him, what did you have in your hand?’ If you didn’t answer, T had a hammer,’ and- is that true now? A. I don’t remember whether I said I had a hammer or not, positively. I am not positive about the hammer, I am just supposing I had the hammer, because I don’t remember of putting it down. The hammer was what I would suppose about a pound claw hammer, and the handle was 12 or 14 inches long, something like that — an ordinary claw hammer. Q. Did you not state on the examining trial, T don’t know what I would have done with the hammer if I had got to him.’ Do you still make the statement? A. Well, I don’t remember, as regard to tlae hammer, that question as to what I would have done if I had got to him. I don’t remember about the hammer being in question; anyhow, if it was, I stated I didn’t know, and I still make that same statement.”

On recross-examination he testified:

“Q. Did you call them as you went over to where they were? A. No; I didn’t call them at all. I called "Will; but T didn’t go over to where they were. They came to where I was.”

The testimony of appellant and his father would have justified the jury to acquit him because of his claimed self-defense; but this was fairly and fully submitted by the court to the jury, and they were told that if appellant struck Jones in self-defense, or they had a reasonable doubt of it, to acquit him of assault to murder. He also submitted aggravated assault, and told the jury that if they had a reasonable doubt whether or not appellant was guilty of an assault with intent to murder, or an aggravated assault, to give him the benefit of the doubt, and not find him guilty of an assault with intent to murder. No complaint was made of the charge of the court at the time of the trial.

Another witness describes the stick with which appellant struck Jones as about 2% inches in diameter, 6 or 7 feet long, and the heart of a post oak. Will McGrey called it ,a rail. Immediately after appellant struck the deceased, he left, and tried to escape by running out of the state, but was followed several miles by an officer, and caught just before he got out of the state. The lick was on the left side of Jones’ head, just above his ear, cut a gash about three inches long, and rendered Jones unconscious for several days. They thought he would die from the effects of it. He had physicians attending him for a long time, was in bed two or three weeks, and his hearing entirely destroyed.

The parties were before the court and jury, who saw and heard them testify. There is no indication from this record that the appellant did not have a fair and impartial trial. Under -the circumstances, we cannot say that the evidence did not sustain the verdict, and we cannot, therefore, reverse the case.

The judgment is affirmed.


author: PBENDERGAST, P. J.

text:
    CRUZ et al. v. STATE.
    (No. 3338.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    1. Appeal and Eekor (§ 454) — Pendency op Appeal — Filin® Petition and 'Bond.
    The filing of a petition for writ of error and bond of the clerk of the lower court has the effect of causing the case to be pending in the appellate court from that date.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2215; Dee. Dig. § 454.]
    2. Evidence (§ 23) — Judicial Notice — Time.
    The court judicially knows that the proper representative of the state could have been served with a citation on appeal within a day or two after the issuance of citation.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 29, 30; Dee. Dig. § 23.]
    3. Appeal and Eeeoe (§ 629) — Teansceipt —Delay in Filing — Relief.
    Under Rev. St. 1911, art. 1608, authorizing the transcript to be filed after the 90 days allowed on good cause shown where plaintiffs in error from a judgment on a forfeited bail recognizance file their petition December 5, 1913, and resist on October 26th a certificate of affirmance and postpone a motion for rehearing because prematurely brought, the record showing delaying tactics, plaintiffs in error’s motion on the rehearing for certiorari to bring up the transcript and time for filing briefs, etc., will be denied; the state having brought up the record of the cause.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig, § 2765; Dec. Dig. § 629.]
    4. Appeal and Ekkob (§ 805) — Abandonment— Affidavits.
    Where affidavits show that plaintiffs in error from a judgment on a forfeited bail recognizance filed a petition and bond, and their attorney took the papers to his office to issue citation to the state, but failed to issue it for over a year, though requested by the clerk of the court, the writ of error will be dismissed as abandoned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3174, 3175; Dec. Dig. § 805.]
    Appeal from District Court, Hays County; F. S. Roberts, Judge.
    Scire facias by the State against Leopoldo Cruz and others. From a judgment for plaintiff, defendants appeal.
    Writ dismissed.
    O. T. Brown and T. C. Johnson, both of San Marcos, 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

   PBENDERGAST, P. J.

This is a scire facias .case, brought here on an attempted writ of error.

When the cause was first submitted on November 11, 1914, the record was only a certificate by the clerk of the lower court and the motion of the Assistant Attorney General to affirm on that certificate. No other part of the record was then before us. The certificate of the clerk of the lower court did not show that any citation had ever been issued or served. Under such circumstances, two of us were of the opinion we could not affirm on that account. The other of us thought differently. Thereupon two opinions were prepared, one by the majority dismissing the certificate and striking the cause from the docket, and the other opinion opposed this. The record now before us is in altogether a different attitude from what it was then. Hence we now vacate and set aside the former action herein, including both opinions, and direct that neither shall be published. We reinstate the cause, and will now pass upon the questions as they arise and are presented now.

In October, 1911, Leopoldo Cruz was convicted of a felony — pursuing the occupation or business of selling intoxicating liquors in prohibition territory — in the district court of Hays county, Tex. He appealed that case to this court, and on October 17, 1911, entered into a proper bail recognizance in the sum of $1,000 pending appeal to this court. That recognizance was in accordance with the law and bound him to appear before said lower court to abide the judgment of this. This court affirmed that case June 12, 1912, and is reported in 148 S: W. 564. Oruz failed to appear, and his said recognizance sureties failed to produce him, at the proper time in compliance therewith before said lower court. Thereupon, at the March term of that court, the recognizance was properly forfeited, and on March 19, 1913, the proper judgment nisi thereon entered. Proper citation was duly issued and served, and at the next term of the court on October 17, 1913, the said sureties Manuel Espinosa, Anulfo Lucio, and T. Renteria appeared, answered, and the court tried the case and on that day rendered final judgment against them as well as against Oruz, their principal. They did not appeal. The court adjourned for the term on that date. Soon after that term of court adjourned, the state sued out execution against them and was about to levy upon their property to make the judgment and costs. On December 5, 1913, they filed their formal petition for a writ of error to this court from that final judgment and executed a supersedeas bond. Both the petition for writ of error and bond were on that day filed with the clerk of the lower court. This, under the statute and decisions, had the effect of causing the case to be pending in this court from that date. Hohenthal v. Turnure, 50 Tex. 3. “Although the jurisdiction of this court does not attach for the purpose of adjudicating the case until service of citation in error (Holloman v. Middleton, 23 Tex. 537; Crunk v. Crunk, 23 Tex. 605; Beavers v. Butler, 30 Tex. 24; Mills v. Bagby, 4 Tex. 320; Davenport v. Field, 12 Tex. 94), yet the suit is ‘pending’ in this court, within the meaning of the statute, so that proper process may issue to enable this court to proceed to a final judgment.”

Upon filing said petition and superse-deas bond, the law makes it the imperative duty of the clerk “forthwith to issue a citation for the defendant in error.” R. S. art. 2090. Such citation shall command the sheriff “forthwith to summon the defendant (in error) to appear and defend such writ before the Court of Civil Appeals (this court in criminal matters) within 60 days from date of service of said citation.” R. S. art. 2091. The statute requires the sheriff “to execute and return it forthwith.” R. S. art. 2092. We judicially know that the proper representative of the state, the appellee in this case, could have been served within a day or two if said citation had been promptly issued and placed in the officer’s hands. The statute also imperatively requires the plaintiff in error to file the transcript with the clerk of this court within 90 days from the service of said citation ( R. S. art. 1608), but authorizes this court for good cause to permit the record to be filed later upon such terms as it may prescribe. In this case plaintiffs in error have not prior to December 16th, inst., in any way sought to file the record in this case, nor have they in any way asked this court to permit them to do so, claiming that they' had good cause for not doing so before. The state alone has filed the record in this cause, and it seeks action. Plaintiffs in error resist any action by this court, except a dismissal of the certificate for affirmance when the cause was first submitted on that issue alone, and now resist the rehearing by plea in the alternative that, in case the court ■ does grant a rehearing and set aside the former dismissal of said certificate, then to grant them a certi-orari to the clerk of the lower court directing him to immediately prepare and forward the transcript, and then that the cáse be docketed, set down for submission, allowing them a reasonable time to prepare and file briefs.

The state filed the certificate for affirmance in this court October 26, 1914. Plaintiffs in error had due’notice of that, and they appeared by their attorneys in this court on November 11, 1914, and both orally, and by their written answer thereto, filed their resistance and brief on that question. Tim state filed a motion for rehearing herein on' December 2, 1914. Proper citation was issued to the plaintiffs’ attorneys of record and was duly served on them on December 4, 1914. The matter was then prematurely submitted on December 9, 1914, but upon their showing that it was prematurely submitted that submission was set aside and postponed, of which they had full notice and knowledge, to December 16,1914, at which time this matter was again resubmitted to this court. This whole record shows that the plaintiffs in error through their attorneys have persistently pursued such tactics as to delay this case and have delayed it for more than a year. This court will permit no further delay in the case. The' record before us, brought by the state and not by appellant, is ample, full, and complete for this court to now dispose of the whole case which it does.

The record contains an affidavit made by Mr. J. S. Davis, the clerk of the lower court, on November 12, 1914, which, after identifying this cause, states:

“Citation in error has never been served on the district attorney, or any one authorized to represent the state of Texas, notifying them that writ of error had been filed in this cause. When writ of error was filed in this cause, plaintiff’s attorney Mr. T. C. Johnson, Jr., told me that he preferred to prepare the citations himself, and he took all the papers in this cause to his office, .but never at any time prepared the citations, and never would return the paners so that I could do so, although I asked him several times to return them, and finally the district judge ordered him to return the papers to my office the last term of the district court.”

In reply to- this affidavit by the clerk, Mr. one of the attorneys of record for tlie plaintiffs in error, and also one of tlieir sureties on tlieir supersedeas bond, made an affidavit on December 15,1914, and filed it in tbis court in tbis cause tbe next day, wbicb is to tbis effect:

“When petition for writ of error was filed in said cause on December 5, 1913, as I remember, X offered to prepare the citations _ for'the clerk and took some of the papers in said cause to my 'office to aid me in preparing the citations and to use in briefing the case on appeal. Either through oversight or the press of other business, I did not prepare the citations.. A month or so after taking the papers to my office, the district clerk asked me if X had prepared the citations. I stated to him that I had not found time to do so, and in a week or so be then again asked me about the citations. I again then stated to Mm that I had not found time to prepare same, and suggested to him that he prepare the citations himself, as I was too busy.
“Several times after that the clerk asked me about the citations, and each time I told him I had not prepared them and that he had better go ahead and prepare them himself.
“The clerk knew all of this time that part of the papers were in my office, but neither he, nor any one purporting to act for him, ever called on me for the papers, or even intimated a desire to have the papers, until during the last term of district court in the month of October, 1914, the clerk, as I remember, told me over the telephone that the district judge wanted to see the papers. I immediately sent the papers to the courthouse, thinking Judge Roberts wanted to see them for some reason. Judge Roberts never said anything to me about the papers and never ordered me to return same, as far as I know, unless it was when he asked the clerk to telephone me concerning same.
“In this connection I wish to state that my office is situated about 150 yards from the office of the district clerk, and it has been customary for years for members of the local bar to take papers from the clerk’s office and keep them until called for. Both Mr. Davis and his as-assistant are in the habit of coming to my office for court papers whenever they want them, and sometimes request me to return papers by telephone, which is uniformly done. During all the time the above-mentioned papers were in my office the clerk nevér called or telephoned for the papers or in any way indicated that he desired same.
“My failure to prepare the citations was not due to any intention or desire on my part to prevent or delay the issuance of same, but in undertaking to prepare these papers I was merely trying to accommodate the clerk, who has no stenographer and whose age prevents him from turning out work of this sort promptly and accurately. It has been customary for some attorneys of the local bar to prepare citations and other papers of this sort for the clerk for several years.”

Taking these affidavits together, they establish, without any question, that the plaintiffs in error, through their attorney, not only failed to exercise any diligence whatever to have the citations issued and served and the cause filed in this court, but, on the contrary, from them we think it reasonable to conclude that the course pursued Was to merely tie up the judgment below for as great a time as possible and not, in good faith, to prosecute his writ of error from the judgment of the lower court; that by their action it shows they abandoned their writ of error; and that they are barred by the statute and their laches from now having any hearing whatever thereon on its merits.

The statute (R. S. art. 2086) says:

“The writ of error may, in cases where the same is allowed, be sued out at any time within twelve months after the final judgment is rendered, and not thereafter.”

The final judgment in this cause was rendered October 17, 1913. It is true the petition for writ of error and supersedeas bond were filed in the lower court on December 5, 1913, within the 12 months; but it is also established as stated, without any question, that no citation whatever was issued, and that it was prevented from being issued by the inaction, if not the express action, of the plaintiffs in error’s attorney, as shown by said affidavits copied above. The law made it the duty of the plaintiffs in error, in order to get the benefit of the writ of error, to use diligence to procure the issuance and service of citation and bring the record to this court, and by their failure they abandoned their writ of error, and the same is barred by the express terms of the statute and their laches, so that they deprived themselves of a hearing on the merits. We deem it unnecessary to discuss the authorities establishing that by their action they are deprived by their laches and limitation of their writ of error. We merely cite the following cases which, in principle, are applicable and clearly establish the law: Ricker v. Shoemaker, 81 Tex. 28, 16 S. W. 645; Wood v. Mistretta, 20 Tex. Civ. App. 236, 49 S. W. 240, 50 S. W. 135, and authorities therein cited; Maddox v. Humphries, 30 Tex. 496; Tribby v. Wokee, 74 Tex. 143, 11 S. W. 1089; Wood v. Ry. Co., 15 Tex. Civ. App. 325, 40 S. W. 24; R. R. Co. v. Flatt (Civ. App.) 36 S. W. 1031; and cases cited below.

Under the facts, the statute, and decisions, we cannot affirm on the clerk’s certificate.

As the plaintiffs in error, under the facts and authorities, have abandoned their writ of error and are barred by limitation and their own laches, we cannot hear and determine the case on its merits.

For the same reasons we cannot affirm the case on the whole record.

The result is that we can and do finally dispose of the case by granting the state’s last alternative motion and prayer to dismiss the case, so that the state can proceed to collect the said judgment and take whatever action it is authorized by law to take to hold the-sureties on the supersedeas bond liable. Thompson v. Rice, 49 Tex. 769; Swilley v. Blount (Civ. App.) 82 S. W. 791; Cotton v. Patterson (Civ. App.) 59 S. W. 568; Wilson v. Adams, 50 Tex. 9; Wheeler v. State, 8 Tex. 228; Roberts v. Sollibellus, 10 Tex. 354; Graham v. Sterns’ Adm’r, 16 Tex. 156.

It is therefore the order of this court that this cause and the writ of error herein attempted to be sued out by plaintiffs in error be and the same is hereby dismissed, and the state remitted to whatever rights it has to enforce the original judgment of the court below and the liability of the sureties on said superseadeas bond, with judgment against plaintiffs in error for all costs herein.


author: HARPER, J.

text:
    CARMICLE v. STATE.
    (No. 3355.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1914.
    Rehearing Denied Jan. 13, 1915.)
    1. Assault and Battery (§ 97)—Aggravat-ed Assault—Verdict.
    In a prosecution for aggravated assault on a female, a verdict finding defendant guilty as charged and assessing' his punishment at a fine of $25, which was the lowest penalty for aggravated assault and the highest for simple assault, was not defective, as indefinite concerning the óffense of which accused was convicted, since any assault on prosecutrix would be an aggravated one by virtue of the statute.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 151; Dec. Dig. § 97.]
    2. Assault and Battery (§ 54)—Aggravat-ed Assault.
    Where the state’s evidence showed that defendant intentionally drove his wagon against a buggy being driven by the prosecuting witness, a young female, whereby the wheel of prosecu-trix’s buggy was crushed, and she was thrown out and injured, such facts sufficiently showed an aggravated assault.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.]
    3. Criminal Law (§ 922)—Trial—Instruc-tions—Objections—Time.
    Objections to instructions must be made before they are read to the jury, and must be verified at that time by a proper bill of exceptions, and cannot be made for the first time in the motion for new trial.
    [Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    Appeal from Ft. Bend County Court; W. I. MeFarlane, Judge.
    Robert Carmicle was convicted of committing aggravated assault on Annie Vajofka, and lie appeals.
    Affirmed.
    J. S. McEachin and J. O. Florea, both of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of committing an aggravated assault on Annie Vajofka, and his punishment assessed at a fine of $25.

Appellant contends that, as the verdict ■reads that “We, the jury, find the defendant guilty as charged in the information,” it is too vague and indefinite. As the jury assessed the punishment at only $25, the lowest penalty for aggravated assault, and the highest for simple assault, there might be merit in his contention, had the court submitted the, issue of simple assault in his charge; but the court did not do so, nor would the facts have authorized a charge on simple assault. If appellant is guilty of any offense, it is aggravated assault, for Annie Vajofka is a young female) and an assault on her would be an aggravated assault by virtue of the statute.

The court did not err in refusing to give peremptory instructions to acquit. According to the state’s evidence defendant intentionally drove his wagon against a buggy being driven by the prosecuting witness, crushed a wheel of the buggy, and from the impact of the vehicles she was thrown out of the buggy. If this was intentionally done, it would be an assault. However, appellant by his testimony would make it an accident—that he had no intention of driving his wagon against the buggy. At appellant’s request the court instructed the jury:

“Unless you believe from the evidence beyond a reasonable doubt that the defendant, Robert Carmicle, struck the vehicle of the assaulted- party, Annie Vajofka, with the intent to injure her, you will acquit the defendant.”

Again, at. the request of defendant, .the court instructed the jury:

“If you believe from the evidence that injury was inflicted on the assaulted party by the defendant, the intent to injure will not be presumed, but must be proven.”

These charges presented the defensive, theory as made by the testimony offered by the defendant.

Appellant in the transcript has three bills of exception to the charge of the court, but each of them is indorsed as follows:

“This exception not being made at the time the charge was given, it is not allowed.”

It is thus seen that neither of the three bills are approved by the court, but he specifically refuses to approve them. Under the-law formerly, objections to the charge as given could be made in the motion for a new trial; but that is not the law now. The objections to the charge must be made before it is read to the jury, and that such objections were made at that time must be verified by a proper bill of exceptions.

The record being in this condition, no exceptions being reserved to the introduction of any testimony, all special charges being-given, and no exceptions reserved to the-charge as given until after verdict, the judgment will be affirmed.