text:
    WHITE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. Criminal Law (§ 1129) — Assignments of Error — Piling—Time—Review.
    Assignments of error filed after the adjournment of the court for the term at which accused was tried, raising questions not presented to the trial court in a motion for new trial, will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.]
    2, Indictment and Information (§ 72) — Complaint — Disjunctive Allegations.
    A complaint against a physician for violating the physicians’ registration law, alleging that accused did unlawfully treat a disease “or” disorder, to wit, did treat one S., a human being, for tuberculosis and constipation, etc., was not objectionable for uncertainty in the use of the disjunctive, since the designation of the diseases by name sufficiently showed that they were both diseases and disorders.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 195-199; Dec. Dig. § 72.]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    Dr. G. W. White was convicted of violating the physicians’ registration law, and he appeals.
    Affirmed.
    Mangum & Townsend and Ball & Seeligson, all of San Antonio, and Lightfoot, Brady & Robertson, of Austin, 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

   HARPER, J.

Appellant was prosecuted under a complaint and information; omitting the formal parts, the complaint charging: “That Dr. G. W. White in the county of Bexar and state of Texas, on the 12th day of October, A. D. 1912, said Dr. G. W. White who was then and there a resident of Bexar county, Tex., did publicly profess to be a physician, and did then and there practice medicine upon a human being, within the limits of the state of Texas and county of Bexar, without authority of law, to wit: Did then and there, in the manner hereinbefore and hereinafter stated, unlawfully treat a disease or disorder, to wit, did treat one Miss Lavina Spangler, a human being, for tuberculosis and also for constipation, and did diagnose her case and prescribe therefor, and did charge therefor, said treatment being given in the capacity of a physician, in order to effect a cure of said disease and disorder; so unlawfully treating in the county of Bexar, state of Texas, in which said state and county the said Dr. G. W. White then and there resided, all of which said treatment was given in violation of the provisions of chapter 123, Acts of the Thirtieth Legislature of the state of Texas, without having first registered in the district clerk’s office of Bexar county, Tex., the county in which he (the said Dr. G. W. White) then and there resided, his authority from the Board of Medical Examiners for the state of Texas for so practicing, together with his age, post-office address, place of birth, school of practice to which he then and there professed to belong, subscribed and verified by oath, as prescribed and required by the provisions of chapter 123 of the General Laws of the state of Texas, Acts of the Thirtieth Legislature of Texas, p. 224 et seq., against the peace and dignity of the state.”

After a judgment of conviction, appellant filed the following motion in arrest of judgment:

“Because the information and complaint on which same is based are insufficient to charge the offense or any offense against the laws of Texas, in this: Said complaint charges disjunctively the offense intended to be charged, and the statute upon which the prosecution is founded makes it an offense to treat a disease or disorder, mental or physical, or any physical deformity or injury by any system or method, or to effect cures thereof, and this complaint in the same count, and in a single count, charged that the defendant did unlawfully treat a disease or disorder, and the same is-charged dis-junctively, and for this reason said complaint is uncertain and indefinite and does not clearly set out whether the defendant treated a disease or disorder; and the allegations are repugnant.
,cSeeond. Said information is insufficient in that it does not charge that the disease or disorder was either a mental or physical disease or disorder.
“Third. Said information is insufficient in that it does, not charge Lavina Spangler was treated by any system or method or was treated to effect cure of any physical or mental disease or disorder, nor how she was treated.
“Fourth. Said information is insufficient in that it does not allege that the defendant charged for such treatment, or services as a physician any money or other compensation, nor what, if anything, said defendant charged therefor.
“Fifth. Because there is a variance between the complaint and information in that the complaint charges that defendant did unlawfully treat a disease or disorder while the information charges that defendant did treat a disease and disorder.
“Sixth. Because the information is not founded on the complaint, and does not substantially state the same offense charged in the complaint, if any.
“Seventh. Because the information does not charge what disease or disorder was treated, but only says that defendant did treat Miss Lavina 'Spangler for tuberculosis, and constipation also.
“Eighth. Because the verdict is not sustained by the evidence.”

No motion for new. trial was filed at any time, but, when the court overruled this motion in arrest of judgment, appellant gave notice of appeal and entered into a recognizance, and by these acts the county court was deprived of all jurisdiction in the premises. Subsequent to the adjournment of court for the term, appellant filed assignments of error in which many matters are complained of, not mentioned in the motion in arrest.

The question arises, Can the matters presented in the assignments of error filed about a month after the adjournment of court be reviewed by us? All of our decisions hold that matters thus presented cannot be reviewed on appeal. Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830; Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605; Day v. State, 138 S. W. 130; Williams v. State, 7 Tex. App. 163; Keye v. State, 53 Tex. Cr. R. 322, 111 S. W. 400; Daniels v. State, 58 Tex. Cr. R. 569, 126 S. W. 1153.

As seen by the first ground in the above motion, and relied on by appellant, it is alleged that the complaint charged the offense disjunctively and not conjunctively, and many authorities are cited. If this construction should be given the complaint, it may be said that our decisions heretofore seem to hold that this would vitiate the complaint. The allegation in the motion is that wherein the complaint charges that appellant “did then and there, in the manner hereinafter stated, unlawfully treat a disease or disorder, to wit, did treat one Miss Lavina Spangler, a human being, for tuberculosis and also for constipation, and did diagnose her case and prescribe therefor and did charge therefor,” etc.; that the use of the word “or” between the words “disease” and “disorder” renders the complaint defective because in the disjunctive. We are referred to the case of Taylor v. State, 50 Tex. Cr. R. 183, 95 S. W. 119, as being in point on this question, and therein it is said that the use of the word “or” left the indictment in a confused state. We do not think the same can be said of -this complaint. When it said a disease or disorder, to wit, tuberculosis, there could be no uncertainty. The appellant was informed specifically with what he was charged. An indictment, like any other pleading, must be read as a whole, and this indictment, when so read, is not in the disjunctive nor uncertain, but it clearly and in unambiguous language informs appellant of the offense with which he is charged, and the disease which he treated. Macing the words “to wit, tuberculosis and constipation,” limited the meaning of the words “disease” and “disorder” in this particular case to those diseases, and he could have been convicted for treating her of no other disease or disorder than the two named. Therefore the complaint is certain and specific in its allegations and is not in the disjunctive when read and construed as a whole. Neither was it necessary for the complaint to ■ allege whether the disease was a mental or physical disease; all persons are aware that tuberculosis and constipation are physical diseases. The complaint is herein copied, and it, on its face, demonstrates that the other grounds in the motion in arrest of judgment on account of alleged defects in the complaint are not well taken.

The only other ground in the motion contends that the evidence in insufficient to sustain the verdict. We have read the record carefully and are fully convinced that the evidence supports the contention that appellant was treating, and offering to treat, disease for pay, and did, in this instance, treat, and offer to treat, Miss Lavina Spang-ler for tuberculosis and prescribe for her for constipation.

The other complaints in the assignments of error we will not discuss as they were not presented to the trial court. It is only fair to trial courts that all grounds upon which it is claimed he erred should be presented to him in the motion for new trial, and he be given an opportunity to correct his own error, if any he has committed.

Affirmed.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    Criminal Law (§ 1090) — Appeal—Review— Recobd.
    Rulings of the trial court cannot be passed on, in the absence of bills of exceptions and a statement of facts, without which they cannot be intelligently reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Mose Wilson • appeals from a conviction.
    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.

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

This record is before us without a statement of facts or bill of exceptions. There are quite a number of criticisms to the rulings of the court, but in the absence of bills of exception and statement of facts they cannot be reviewed intelligently.

As the record presents the case, the judgment must be affirmed; and it is so ordered.


author: PRENDERGAST, J.

text:
    Ex parte WELBURN.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Habeas Corpus (§ 113) — Proceedings— Petition — Eeeect.
    The application or petition for- a writ of habeas corpus is a mere pleading, and is not evidence of the facts therein stated.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115 ; Dec. Dig. § 113.]
    2. Habeas Corpus (§ 113) — Appeai^Statement of Pacts — Necessity.
    On appeal from a judgment remanding the applicant for a writ of habeas corpus into custody, where there was no statement of facts, it must be held that the judgment of the lower court was correct, and that there was ample evidence to sustain it; the application or petition not being evidence of the facts therein stated.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Application by W. G. Welburn for a writ of habeas corpus. Prom the judgment committing relator to the custody of the sherifli, he appeals.
    Affirmed.
    R. J. Dillard and J. H. Moore, both of Lubbock, 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

   PRENDERGAST, J.

In the corporation court of the town of Lubbock appellant, on proper complaint, was prosecuted, tried in said court, and convicted for maintaining a nuisance under the city ordinance, and fined $10. He thereupon, in open court at the time, gave notice of appeal to the county court of Lubbock county, and filed an appeal bond in said corporation court. Thereupon the bond and all the other original papers were sent to and filed in the county court, and the cause properly docketed therein. Later the case was regularly tried before the county court and jury, and he was again convicted and fined $10; the proper judgment being entered thereon. Not paying the judgment and costs, the proper writ was issued, and he was taken in custody by the sheriff, and held to collect said fine and costs. On February 10, 1913, he sued out a writ of habeas corpus before the district judge of said Lubbock county. The judge heard all the evidence and remanded him to the custody of said sheriff, from which judgment and order of the district judge he has prosecuted this appeal.

The sole contention here is that, as appellant gave a defective appeal bond from the corporation court to the county court, the county court acquired no jurisdiction whatever, and the trial and judgment rendered in the case on the county court trial are therefore void. The judgment of the district judge clearly shows that in the said habeas corpus proceedings before him all the parties appeared, and the court heard the evidence and argument of counsel, and remanded Welburn to the custody of the sheriff under the said proper process by which he was held. It has uniformly been held by this court that the application or petition for a habeas corpus is a mere pleading, and is not evidence of the allegations therein. There is no statement of facts in this case, nor is it in any way shown what the evidence before the district judge was. The judgment must therefore bé held correct, and that there was ample evidence to sustain it. Ex parte Naill, 59 Tex. Or. R. 141, 127 S. W. 1031; Ex parte Robertson, 63 Tex. Cr. R. 280, 140 S. W. 98; Ex parte Thomas, 145 S. W. 601; Ex parte Basham, 145 S. W. 619; Ex parte Northern, 63 Tex. Cr. R. 275, 140 S. W. 95.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    MONROE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.
    On Motion for Rehearing, May 28, 1913.)
    1. INTOXICATING LlQUOES (§ 205*) — OFFENSES —Indictment—Sufficiency.
    In view of Acts 30th Leg. 1st Called Sess. c. 8, providing that if no contest is filed it shall be conclusively presumed that a local option election is a valid one, an indictment charging the offense of pursuing the business of selling intoxicating liquors in prohibition territory, which averred that an election was held, and it was determined that the sale of liquor should •be prohibited, is sufficient, although not averring that the election held was a legal and valid one.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.*]
    On -Motion for Rehearing.
    2. Criminal Law (§ 1206*) — Punishment-Suspended Sentence.
    Where, after accused was convicted of following the business of selling intoxicating liquors in prohibition territory, the Legislature, during- the pendency of his appeal, passed the suspended sentence law (Acts 32d Leg; c. 44), which provided that if, a person on trial requests in writing that his general reputation be inquired into, and the proof shall show and the jury shall find that he has never before been convicted of a felony, and the jury shall recommend that the sentence be suspended, the court shall suspend the sentence, the accused is not entitled to any benefit from such act; it appearing that it did not expressly apply to offenders whose appeals were pending', and the act expressly insisted upon, a demand in writing prior to trial in order to give an" accused the benefit of its provisions, and did not give the trial judge any authority to suspend sentence upon his own motion.
    [Ed. Note, — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.*]
    3. Ceiminai, Law (§ 881) — Judgment— Sufficiency.
    In a prosecution for following the business of selling intoxicating liquors in prohibition territory, where the indictment charged the offense with particularity, a verdict of guilty as charged in the indictment, signed by the fore'man, together with the judgment and sentence thereon, are sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2093; Dec. Dig. § 881.*]
    4. Criminal Law (§ 1184*) — Appeal—Disposition.
    Under Code Cr. Proc. 3911, art. 938, providing that the Court of Criminal Appeals may reform and correct a judgment as the law and nature of the case require, a judgment which is too vague and indefinite may be reformed on appeal, where the indictment, charge of the court, and verdict are all a part of the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.*]
    Appeal from District Court, Williamson County; Charles A. Wilcox, Judge.
    Arthur Monroe was convicted of the offense of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Nunn & Love, of Georgetown, 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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of pursuing the business and occupation of selling intoxicating liquors in prohibition territory. There is no statement of facts nor bills of exceptions accompanying the record; ■ so, the only question presented that we can review is the motion to quash the indictment.

The first ground in the motion is that the indictment fails to allege that “a valid and legal election” was held. The indictment follows the usual and customary form approved by this court in this respect, that an election was held to determine whether or not the sale of intoxicating liquors should be prohibited, and at said election it was determined the sale should be prohibited, and the court declared the result of said election, entered an order to that effect, which order was duly published, and it was not necessary to state that the election so held was “a valid and legal one.” Acts 30th Leg. 1st Called Sess. c. 8, p. 447, which provides within what time said elections may be contested, and if no contest is filed it shall be ■conclusively presumed that said election was a valid one.

The other grounds are equally without merit; the indictment being drawn in terms frequently approved by tljis court.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of this term this case was affirmed, and motion for rehearing overruled ; but appellant came and represented he desired to present a new proposition of law, which would not only materially affect this case, but all cases pending in this court where the punishment assessed is less than five years in the penitentiary. We ordered the mandate withdrawn, and permitted the filing of the amended motion. It reads:

“(1) That the appellant was tried and convicted at the February term of the district court of Williamson county, Texas, A. D. 1912, and that he appealed Ms cause to this court, and while his appeal was pending in this court the Legislature of the state of Texas passed and the Governor approved the act known as the ‘suspended sentence law,’ and that by reason of the passage of the said law the appellant’s case should be reversed for the following reasons:
“(a) That the said law ameliorated and modified the penalty heretofore existing for the offense for which appellant stood charged.
“(b) That by substitution the said law repealed the penalty for the offense for which the appellant stood charged.
“(c) That the said law altered and changed the theretofore existing law in such a manner as to substantially affect the appellant’s rights.
“(d) That as shown by the affidavit of appellant, attached hereto and made a part hereof, the appellant elects to avail -himself of the benefits of the - said suspended sentence law.
“(e) That the record of this cause shows affirmatively that no sentence has been legally pronounced against him for the violation of any law.”

An able and exhaustive brief has been filed on propositions (a), (b), (c), and (d), and many authorities quoted and cited; but we are of the opinion that none of them sustain his contention. A number of them are cases holding that, even though a person has been convicted and the case pending on appeal, if the Legislature should repeal the law making such an act an offense, it would be the duty of this court to reverse and dismiss the cause. The suspended sentence law repeals no law of this state declaring what are penal offenses; consequently those cases have no application to the question here presented.

Appellant contends that the suspended sentence act (Acts 32d Leg. c. 44) ameliorates the penalty of certain offenses, by providing that under given conditions a defendant shall be permitted to go at large on his own recognizance, even though he has been adjudged guilty, and this contention may, in a measure, be said to be true: but it is only on given conditions that such ameliorated penalty, if it shall be so termed, operates and becomes effective in any given case. While not passing on the constitutionality of the suspended sentence act, as it is not necessary to a disposition of this case, and not raised by appellant in his motion, yet we are of the opinion that, if it is sustained, it will be upon the ground that it will be read into every penal law, as a part thereof (except those exempted by express terms), when the facts authorize it, just as the law of principals, accomplices, and accessories is read into and made a part of each statute, when the facts justify the court in so doing, and as applicable to this case it may be said the penal clause of the prohibition law should and will hereafter read as follows: “If any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any precinct in which the sale of intoxicating liquors has.been prohibited, he shall be punished by confinement in the penitentiary for not less than two nor more than five years: Provided that if the person on trial shall request in writing that his general reputation be inquired into, and the proof shall show and the jury shall find that he has never before been convicted of a felony in this state or any other state, and the jury in their verdict shall recommend that the sentence be suspended, the court shall suspend the sentence,” under conditions named in the act. 'We do not think, under the provisions of this act, the court has any authority or power to suspend sentencing the defendant unless the jury shall so recommend in their verdict, and the court has no power to refuse to do so if the jury in their verdict so recommends, only that he may set aside the entire verdict' and grant a new trial, if in the exercise of. his discretion he deems the ends of justice demand such action on his part

If this be a correct construction of the law, then it is only on condition that the person on trial, 6e/ore the trial begins and verdict of the jury is rendered, shall request in writing that his reputation be made an issue in the trial, that he may receive any benefit from the ameliorating statute. Many persons who do not bear a good reputation would hesitate to make the request, for fear that evidence of such reputation would enhance the punishment to be assessed, while those whose reputation has been above reproach, except in the instance for which they are then on trial, will gladly avail themselves of this provision, and this is the class of individuals for whom the law was framed and passed, in the hopes that they may be stayed from their erring course and good citizens made of them. The fact that a person makes such request will, in a measure, be taken by the jury as a confession of guilt, and yet the law requires that this be done before any person shall receive or be entitled to the benefits of the law, and even though a person be now placed on trial, after this law has become effective, and he neglects, fails, or refuses to file this request in writing until after the trial begins and verdict is rendered, he is not entitled to and»cannot receive the benefits of this law. The intent and purpose of the law are made plain, and the terms upon which one can receive the benefits of it are manifest, and it was never intended to have any effect on trials had before the passage of the law, any more than it was intended that a person tried after its passage could receive the benefits of the law after verdict rendered, by then making application. If there is one provision of the law made so plain that none can misunderstand it, it is that the only way for one to avail himself of its provisions is to make an application in writing before the trial begins and verdict is returned, and put in issue his reputation as a peaceable, law-abiding citizen, and then will he receive the benefit of it only on condition that the evidence shows that he has never before been convicted of a felony, and the jury trying him shall find that fact, and find that his reputation as a citizen is such that they in their judgment think the best interests of society and the state and the interest of the individual on trial will best be subserved by inflicting no punishment unless the person on trial shall commit another breach of the law, and they so recommend in their verdict.

It is true this law was not in force when appellant was tried, and others are now granted a privilege not granted to him; but it may be said there are hundreds of persons whose cases were and are pending on appeal, some of whom are now in the penitentiary, who were also denied this privilege. If the legislature had intended that a person could take advantage of this statute at any time before final disposition of the case, they would have so written the law; but, instead of doing so, they wrote into it the provision that this request in writing must be made before the trial begins and before the jury had returned its verdict, and under its terms the application of appellant made in this court comes too late and can avail him nothing. A similar question was so thoroughly discussed in Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595, by then Presiding Judge White, and the rule governing this character of case so clearly announced, it would be but superfluous for us to review the authorities, and we deem it only necessary to state that we adhere to the rule announced in that case, and think its sound reasoning and logic will convince any legal mind of its correctness, and that this law does not apply to cases tried before its enactment.

The other contention of appellant, that the judgment and sentence must define the offense with the same specificness and definiteness as the indictment or bail bond, is not sound. The indictment in specific terms defined the offense, the court in his charge correctly submitted this offense, and the jury in their verdict find, “We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at three years in the penitentiary,” being signed by the foreman. That the judgment and sentence on this verdict only referred to the offense in general terms, and did not specifically define it with that definiteness required in an indictment, furnishes no ground for reversal of the case. Under such circumstances, if it was too vague and indefinite, we would be authorized to reform and correct the judgment and sentence, under article 938, Code Or. Proc. 1911; the indictment, charge of the court, and verdict all being a part of the record in this case. But as the judgment and sentence, while not specifically defining the offense as specifically as is required in an indictment or bail bond, yet defines the offense in general terms sufficiently, no error is presented.

The motion for rehearing is overruled.


text:
    LUTTRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 28, 1913.)
    1. Criminal Law (§ 1166%) — Habmxess Er-eoe — Selection oe Jurors.
    Unless some juror who sat in the case was legally objectionable, rulings of the court with respect to the competency of jurors, etc., are not ground for a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dee. Dig. § 1166%.]
    2. Criminal Law (§ 1091) — Appeal—Bill oe Exception. ,
    A bill of exception for prosecution with an assault to kill, recited that prosecuting witness testified to a settlement for cotton purchased, and that witness mentioned to accused that he owed him for picking cotton and “it made him mad,” and that defendant objected to the quoted evidence on the ground that it was a conclusion, and excepted to the overruling of objection. Held not sufficient to authorize a view of any error in admitting the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1091.]
    3. I-Iomicide (§ 169) — Assault to Kill — Admissibility oe Evidence.
    The evidence complained of was admissible. [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dee. Dig. § 169.]
    4. Criminal Law (§ 1091) — Appeal—Bill oe Exception.
    A bill of exception to the exclusion of evidence was insufficient, where it did not show what answer witness would have given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §

    5. Homicide (§ 176) — Assault to Kill — Admissibility oe Evidence.
    In a prosecution for assault with intent to kill, evidence that prosecuting witness could not straighten up well, but it pulled the cut and broke loose close to his heart, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 379; Dee. Dig. § 176.]
    6. Criminal Law (§ 368) — Evidence — Res Gesms.
    In prosecution for assault with intent to kill, evidence that' immediately after accused cut prosecuting witness, the witness testifying saw prosecuting witness standing and had to help him, and that he did not pick him up and carry him, but assisted him from the scene of the difficulty to witness’ house, was admissible as res gestae.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.]
    7. Witnesses (§ 406) — Impeaching- Evidence-Admissibility.
    In a prosecution for assault with intent to kill in which accused claimed that his arm had been so injured a few days before the difficulty that he could not use it, evidence that he had used an ax the day before the trouble, to break open a salt barrel, and carried part of the salt home on his shoulder, was admissible to impeach accused as a witness. •
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    8. Witnesses (§ 393) — Inconsistent Statements — Testimony on Former Trial.
    In a prosecution with intent to kill, the state could prove accused’s evidence on a former trial, which disputed his evidence at the present trial on a material point.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    9. Criminal Law {§ 1091) — Appeal—Bill oe Exception — .Sueeiciency.
    A bill of exception recited that on voir dire 36 or more men were examined for jury service, and challenges for cause were made and sustained until only 24 men remained, and the court thereupon directed the challenge to be made from the list of 24 men, to which defendant objected and requested a full panel, which objection is overruled, and that on the challenges the state struck 6 men and.the defendant 8, and the first 12 remaining were impaneled to serve as the jury, to all of which defendant then and there excepted. Held, that the bill of exceptions did ndt authorize review of the alleged error.
    [Ed. Note. — For other cases, see Criminal Law, -Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    10. Homicide (§ 171) — Assault to Kill-Admissibility oe Evidence.
    In a prosecution in an assault with intent to kill evidence by prosecuting witness that accused was growling and cursing at the time of and just before their first fight, which led to the cutting, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 351-358; Dec. Dig. § 171.]
    11. Affidavits (§ 5) — Who may Take.
    An affidavit for change of venue, which was sworn to by accused attorney, could not be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.]
    12. Criminal Law (§ 1092) — Bill of Exceptions — Filing—Change of Venue.
    Under Code Crim. Proc. 1911, art. 634, providing that an order denying a change of venue shall not he reviewed unless the facts on which it was based are presented in a bill of exception filed at the term at which the order was made, a statement of the evidence heard on the motion for change of venue, filed long after adjournment, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    13. Homicide (§ 268) — Assault to Kili>-Jury Question.
    Evidence held to authorize the submission of the question of assault with intent to kill.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.]
    14. Criminal Law (§ 1064) — Appeal—Motion for New Trial — Sufficiency of Statement of Grounds.
    The ground of motion for a new trial, alleging error in not charging a new article of Pen. Code 1911, art. 717, the substance of which is stated, without assigning any reason why it should have'been charged, is too general to authorize a review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    15. Homicide (§ 268) — Assault to Kili>-Deadly Weapon.
    Where the evidence described the knife used by accused and the manner and circumstances in which it was used, and one shown to be exactly like it was put in evidence, it was not error to permit the jury to determine whether the knife was a deadly weapon, though there was no evidence stating in terms that it was a deadly weapon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.]
    16. Homicide (§ 300) — Instructions—Self-Defense.
    An instruction in a prosecution for assault with intent to kill was not erroneous for requiring a finding that the assault was “not in his necessary self-defense, as hereinafter charged,” instead of that it was “not in defense of himself against an unlawful attack producing a reasonable expectation of death or serious bodily harm” ; the meaning of the two phrases being substantially the same.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630 ; Dec. Dig. § 300.]
    17. Criminal Law (§ 822) — Instruction— Construction.
    The instruction should always be construed as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    18. Criminal Law (§ 815) — Instructions Excluding Issues —Assault to Kill — Self-Defense.
    An instruction in a prosecution for assault with intent to kill, that if the jury believed that the accused was guilty of an assault, but had a reasonable doubt whether the assault was upon malice aforethought with intent to murder, then they should acquit him of that offense, and should consider whether he was guilty of an aggravated assault, did not eliminate from the jury’s consideration the issue of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    19. Criminal Law (§ 823) — Instructions.
    Error in an instruction defining manslaughter, in a prosecution for assault with intent to kill, inadvertently quoting literally the statutory language, in which an assault and batten' “by the deceased,” causing pain or bloodshed, was made an adequate cause, was harmless where the court also charged that if prosecuting witness had assaulted the accused, causing pain or bloodshed, and thereby rendered his mind incapable of cool reflection, etc., he would only he guilty of aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    20. Homicide (§ 282) — Assault to Kill — Jury Question — Adequate Cause.
    Evidence, in a prosecution for assault with intent to kill, held to make it a jury question whether the fights theretofore had between the parties were sufficient to constitute adequate cause, so as to reduce the offense to aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    21. Criminal Law (§§ 763, 764) — Instruction — Weight of Evidence.
    The court instructed, in a prosecution for assault with intent to kill, that if accused cut prosecuting witness, and if a minute or two before at .a blacksmith shop witness had made one or more assaults upon the accused, which caused pain or bloodshed, such facts were sufficient in law to reduce the offense, if any, from assault with intent to murder to aggravated assault, and if the jury believed that accused’s mind was thereby rendered incapable of cool reflection, and that it was not sufficient time from the encounter at the blacksmith shop until the cutting for his mind to cool, etc., defendant would only be guilty of aggravated assault. The instruction as to the facts literally followed the evidence. Held, that the instruction did not charge as a matter of law that accused was guilty of assault with intent to kill.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    22. Criminal Law (§ 1090) — Bill Excepted.
    In the absence of a bill of exceptions to alleged improper argument of county attorney, .such argument cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. . §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    23. I-Iomicide (§ 257) — Assault to Kill-Sufficiency of Evidence.
    Evidence, in a prosecution for assault with intent to kill, held to sustain a conviction for the offense charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    24. Homicide (§ 292) — Assault to Kill — Instructions.
    If the charge in a prosecution for assault with intent to kill defines assault and malice aforethought, and requires a finding beyond a reasonable doubt that the accused made an assault on the injured person with malice aforethought and intent to kill, it is ordinarily sufficient ; no particular form of instructions being required.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 597, 598, 600, 601; Dec. Dig. § 292.]
    Appeal from District Court, Jack County; J. W. Patterson, Judge.
    J. P. Luttrell was convicted of an assault with intent to kill, and appeals.
    Affirmed.
    E. W. Nicholson and W. E. Fitzgerald, both of Wichita Falls, 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

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

   PRENDERGAST, J.

This is the second appeal in this ease. The other is reported in 143 S. W. 628. This trial resulted in the conviction of appellant for assault with intent to kill, and the lowest penalty was assessed against him. The general features of the case are shown by the former report thereof. The ease this time was tried in accordance with the former opinion, and the errors there pointed out were corrected and avoided. The case seems to have been more fully and better developed on this trial. The testimony, as shown by this record, in several particulars is quite different from that reported on the other trial. We will therefore state the leading features of the testimony as shown by this record on this trial.

The name of the assaulted party was clearly shown to be, as alleged in the indictment, Edward Oscar Williams. For some time before this offense was charged to have been committed appellant and Williams were good friends, near neighbors, and were frequently together. They were both married men and had families. A few days before this difficulty, which occurred on December 21, 1910, both parties had been drinking considerably, appellant more than Williams, and appellant had been quite drunk. It seems they were both, more or less, drinking at the time of the difficulty. Williams had sold appellant some seed cotton, and also a few days before had picked cotton for appellant. Appellant owed him for this cotton and for picking cotton. On the morning of the difficulty they had together hitched up a wagon, using as a team one horse of each of them, and had carried this cotton to a little town a few miles from where they lived, and just after dinner appellant sold it in the seed to a gin man in payment of which the gin man had given appellant a check for the full price. Appellant and Williams went' together from the ginner to a merchant in the little town, and this merchant cashed the check, paying appellant the full amount thereof in money. Williams was with appellant at the time. As soon as appellant was paid the money he paid Williams for the cotton that he had bought from him, but did not pay him what he owed him for picking. They left the store and went out in the town somewhere, or at least, went out of the store. Some little time after this Williams called appellant’s attention to the fact that he had only paid him for the cotton, but had not paid him for ■ the picking and owed him therefor. It seems that this amount was $1, though it is stated by some to have been $2. When Williams told appellant that he had not paid him what he owed him for the picking, appellant claimed that the merchant who cashed the check paid him at the time he cashed the check. Williams denied this. It seems that then both parties became irritated somewhat over this dispute. Appellant proposed to go back to the merchant and prove it by him that he (the merchant) had paid Williams what appellant owed him for the picking; ■ that thereupon together they went back to the merchant. Appellant asked the merchant if he (the merchant) had not paid Williams what he (appellant) owed him for picking at the time he cashed the check. The merchant stated that he had not, but that he had paid all the money to appellant, and that appellant then himself paid Williams whatever was paid. This seems to have been $16 and perhaps some cents. At any rate, both of the parties became somewhat more irritated at the turn of affairs. They then again left the store, still disputing about this payment. Williams went to the team, started hitching it up with the view of going home. Appellant did not then want to go home, but instead went across the main street or road-of the town some 60 to 80 yards from said store to a blacksmith shop, he says, to get more whis-ky.' Williams then also went over to the blacksmith shop, if not in actual company with appellant, immediately following him. Other parties were along with one or the other of them also. When they reached the blacksmith shop the question of the payment for the picking again arose. At the time of the dispute at the store about the payment for the picking, there were several other persons present. One of these testified that appellant then remarked: “ T, God’ or ‘By God’ — something like that — T will scrap him over it’ ”; that is, he would scrap Williams before he would pay him for the picking. When they reached the blacksmith shop the trouble was continued. Williams said to appellant: “I will just give you that dollar.” Appellant says: “No, you won’t. I don’t want your money.” Williams said: “Yes, you do. I will give you the dollar.” Appellant said: “No, you won’t. I won’t have it.” Williams said: “It looks very much like it the way you are talking.” Appellant then said: “You are a G- d- liar.” Williams then hit him, and they went to fighting. This remark, as stated by this court in the recent case of Nickerson v. State, 154 S. W. 992, not yet officially reported, was such “that any sane man knows well would provoke a difficulty, if the party to whom it is addressed has any manhood about him.” They fought around at this time until Williams got him down on the ground and was hitting him in the face. Appellant holloed to those who were present, several being present, asking them to please pull Williams off of him. Two of the bystanders asked Williams to get off of him and not beat him any more, which Williams voluntarily did. He was not forced off of appellant, nor pulled off of him. As soon as appellant got up he began looking for something with which to strike Williams and found and picked up a good big piece of plank three or four feet long and struck Williams therewith. Williams, in order to ward off the force of the blow of the plank, ran towards appellant so that the plank struck him on the shoulder about midway and broke. They began fighting again, and fought around for some time until they again got upon the ground. Which threw the other, is not made clear. Williams landed on top and began fighting appellant again, each doing what he could against the other. Appellant again called to the bystanders, begging them to take him off. Williams asked him if he would get off of him, would he (appellant) quit and let him alone. Appellant expressly stated that he would do so. Thereupon Williams again got off of him and desisted from fighting him or beating him. As soon as appellant got up again he got out his knife to again attack Williams, when the bystanders interfered, caught his hand, and took the knife away from him. Appellant then proceeded again to hunt something with which to strike Williams. Williams in the meantime started away from him back towards the wagon. Appellant finally picked up a large rock and attempted to assault Williams with it. The bystanders again interfered and took the rock away from him. In the meantime Williams, with another friend, was leaving the blacksmith shop and had gotten some distance therefrom, nearly to the wagon. His back was towards the blacksmith shop and towards appellant. Appellant had two pocketknives with him. The first one with which he attempted to assault Williams, and which was taken away from him, was a little penknife belonging to his wife, which he had procured that morning before leaving home. But while he was at the store, after cashing the check by the merchant, he had borrowed another pocketknife from the merchant, and had that with him at the time this fight occurred. While Williams was going to the wagon, accompanied by. one of his friends, appellant got out this borrowed pocketknife, opened it, and started after Williams again. Several parties saw him open and have the knife in his hand, and saw that he was pursuing Williams; they thereupon holloed to Williams that appellant was after him with a knife and to look out. Williams knew nothing of this until thus warned; when thus warned, appellant had gotten within a few steps of him, and Williams turned, facing appellant, with the intention of protecting,' and attempted to protect, himself from the renewed assault by appellant upon him with the knife, and perhaps struck at him for that purpose. Appellant, however, succeeded in avoiding his lick, if one was struck at him, immediately seized Williams around the neck with his left hand and arm, and held him fast therewith while with the pocketknife in his right inflicted two most serious wounds upon the body of Williams. Williams’ right side was rather towards appellant when appellant had him grasped around the neck. Appellant stuck the knife in Williams’ left side and cut a gash clear around towards the front of his body, just below his heart, clear into the hollow; then stabbed him again in his left breast, just a little higher than the first stab and cut. The bystanders were trying at this time to prevent appellant from cutting Williams, and at last, after he had stabbed him twice, succeeded in getting hold of his right arm and pulling him away from Williams, and tried to take the knife from him; or make him give it up, which he refused to do after repeated demands by bystanders, and never did give it up to anybody. The doctor who was called in to attend Williams testified that the first stab and cut was in Williams’ left side between the sixth and seventh ribs; that it commenced right by the side or back, around towards the backbone, and came around towards the front or breastbone; that it was eight' or nine inches in length, right near the diaphragm that separates the bowels from the heart and lungs, and right below the heart; that it was cut through between the ribs right into the cavity, and he could see Williams’ heart and pulse through this wound. It did not touch the heart, but was just below it. The other cut was just a little above that one, but only went through the flesh and was a few inches long. It did not go as deep and was not as long as the other. The wounds were very serious. Williams was confined to his bed and the doctor attended him many days, and up to the time of this trial, which commenced on March 11, 1912, Williams had not entirely recovered from the effect of his wounds. Immediately after this cutting and stabbing of Williams by appellant, appellant took his horse from the wagon, got on him and immediately left the town. I-Ie went a few miles and traded off this horse for a better and fled the country. I-Ie could not be found by the officers, and was not arrested until several months afterwards when he was found and arrested in one of the eastern counties of the state. Appellant was a much larger and stronger man than Williams. Williams then weighed 138 pounds, and was five feet and nine inches tall; appellant weighing 185 pounds and was six feet tall.

Appellant testified, and had other witnesses corroborating him, that a few days before this difficulty, while he was drunk, he attempted to ride a wild horse, and was thrown therefrom two or three times; that his left shoulder was injured by these falls and rendered his left arm somewhat useless. Williams testified that appellant’s shoulder and arm were not injured by this fall, and the state also introduced several other witnesses, strongly tending to show that appellant’s arm and shoulder were not injured by such fall. Appellant also testified that one object, or his object, in following Williams from the blacksmith shop was that he thought Williams would hitch up the wagon, go off and leave him, and make him walk home, and that he took out his knife, opened it, and went towards Williams for the purpose of protecting himself if Williams attacked him again. The evidence all shows that appellant was incensed at Williams and mad from the time the dispute first arose about whether he had paid Williams for picking said cotton or not. The great preponderance of the evidence, and all of the circumstances, show that appellant was in the wrong and the aggressor from start to finish. The only time Williams could be claimed to be the aggressor was when he first struck appellant when appellant called him a G-d-liar. This was not an attack by Williams upon appellant, but, as stated above, necessarily called for a blow from Williams and provoked him. The evidence in this trial in no way shows that Williams ever struck and knocked appellant down but it does show that in the fight Williams struck him in the face and made the blood come and the blows caused appellant pain.

Appellant, in a very defective bill, complains that the court erred in refusing his challenge for cause of a juror. To take the bill as a whole it shows that the juror was a qualified juror, and that appellant had no challenge for cause; but, even if the juror was subject to challenge for cause, and the court was wrong in not sustaining it, yet, the bill does not show that this juror or any other who was disqualified served on the jury, and it does not show that any juror who was not a fair and impartial juror served on the jury.

This court in Oats v. State, 149 S. W. 1195, said: “The rule now seems to be well settled that, unless a juror is legally objectionable who sat upon the case, prior rulings of the court in regard to the competency of the jurors will not afford ground for reversal,” citing a large number of cases so holding; and then says: “This rule has been so long settled it is deemed unnecessary to discuss it further.”

The whole of another bill by appellant is as follows: “The prosecuting witness, Edward Oscar Williams, testified for the state. Said, in substance: On the day of the cutting the defendant sold his cotton and had a settlement, and the gin man wrote a check for it, and he went up to get the money, and ‘he owed me $16 out of that, besides the cotton picking, and after Edmonson paid him, he turned around and paid me, and I mentioned this cotton picking to him and it made him mad.’ Defendant objected to the statement that ‘it made him mad’ as a conclusion; that the witness should state what was said. Witness: ‘X don’t remember what he said.’ The court overruled the objections, and to such ruling and action of the court the defendant then and there excepted, and now tenders this bill and asks that it be approved and made of the record in this case and it is done.” Every' other bill in this case is just as meager and clearly as deficient as this bill. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited. This court, in the former opinion in this case, called attention to defective bills of exception presented on the other trial. Even if we could review this question, the evidence was clearly admissible. Powers v. State, 23 Tex. App. 64, 5 S. W. 153; Harris v. State, 62 Tex. Cr. R. 240, 137 S. W. 373; section 1093½, subdiv. 2, p. 704; White’s C. C. P. and 3 Ency. Digest Crim. Cases, pp. 204, 205.

Another bill, complaining of the asking of what is claimed. to be a leading question, shows no error. Carter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215.

No error is shown in the next bill, complaining that the court sustained an exception by the state to the appellant’s manner of asking the complaining witness some questions. The bill is entirely too defective to require us to review it' It does not show what answers the witness would have given, nor what the testimony would have been which was excluded.

The next bill does not show that the question asked was a leading question. The testimony was admissible, and the bill in no way shows error.

The next bill complains that the witness who was assaulted and cut could not testify to his condition from the effects of the wounds inflicted upon him by appellant, in stating: “I can’t straighten up good; it pulls that cut, growing together. Part of it pulled loose inside. The strifen is dropped. It is broke loose here right close to my heart.” Clearly this evidence was admissible.

The next bill complains in the same imperfect way that one of the witnesses to the difficulty testified that immediately after appellant had cut Williams, he saw Williams standing, and that he had to help him; that he didn’t pick him up and carry him, but he assisted him from the scene of the difficulty to the witness’ house, where he was carried. This was a part of the transaction and clearly admissible, even if we could consider'appellant’s bill.

It being a disputed point whether appellant’s arm or shoulder had been so injured by his being thrown from a horse a few days before as to render his arm, at the time of the difficulty, so that he could not use it, and he denying that the day before he had used an ax with his hands, broke open a salt barrel, got salt out of it, and carried a part of it home on his shoulder, it was clearly admissible to prove these facts by Mrs. Williams, the mother of the injured party, for the purpose of impeaching appellant and neither of two bills on this subject shows any error whatever. Also it was proper to prove appellant’s evidence on a former trial which disputed his evidence on this on a material point which he denied.

We give another one of appellant’s bills in full. It is: “On voir dire 36 or more men were examined for jury service in this case. Challenges for cause were made and sustained until only 24 men remained, and the court thereupon directed challenges to be made from said list of 24 men, to which the defendant objected and requested a full panel. The court overruled the objection, and required counsel to challenge from said list of 24 men. Defendant excepting, and the challenges were made, the state striking 6 men from the list and the defendant striking 8, and the first 12 men remaining were impaneled to serve as the jury in this case, to all which the defendant then and there excepted, and now tenders this bill and asks that it be approved and made of record in this case, and it is done.” This bill requires no review by this court. Even if it did, it presents no error whatever, as shown by the case of Oats v. State, supra, and authorities therein cited.

Even if presented in such way that we could consider it, the only other bill of appellant, complaining that the assaulted party, Williams) testified that at the blacksmith shop appellant was growling and cursing at the time and just before their first fight, shows no error. Said evidence was clearly admissible.

Appellant filed a motion in the court below for a change of venue. The affidavit of appellant therefor, as well as the supporting affidavits, was sworn to before his attorney. Under the uniform ruling of this court, this did not authorize or require the court to consider it, as has many times and uniformly been decided by this court. Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 667; Patterson v. State, 63 Tex. Cr. R. 310, 140 S. W. 1128. However, the court did hear it and heard evidence thereon.

The term at which this case was tried convened on March 4th and adjourned on March 16, 1912. A statement of the evidence so heard was not filed in the court below until April 26, 1912, long after the adjournment. It has been the uniform holding of this court that such statements cannot be considered when filed after the adjournment of the court, with or without an order of the court authorizing it to be done. Article 634, C. C. P.; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Wright v. State, 40 Tex. Cr. R. 447, 50 S. W. 940; Cortez v. State, 43 Tex. Cr. R. 375, 66 S. W. 453; Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 946.

Appellant has many complaints, in his motion for a new trial, to various words, sentences, and paragraphs of the court’s charge. We have carefully considered all of these, and none of them present any reversible error. The court gave a full, fair, and complete charge on every issue raised in the case, and applied the law to the evidence adduced. He correctly defined an assault, an aggravated assault, malice, and submitted correctly the case to the jury on the question of assault with intent to kill, strictly in accordance with the law and the evidence. He then correctly told them what would constitute manslaughter. He gave appellant’s special charge on self-defense, just as requested by appellant, submitting the question for a finding by the jury on an aggravated assault on every theory raised by the evidence, charging on cooling time and on reasonable doubt between the degrees of the offense, presumption of innocence, and reasonable doubt.

One of appellant’s complaints is that the court erred in submitting to the jury the question of an assault with intent to kill at all, claiming that the evidence did not justify it. We have carefully considered all of the evidence, and clearly, in our opinion, the evidence did raise the question and the court properly submitted it, and the evidence is amply sufficient to sustain the verdict so finding.

His complaint'that the court erred in the main charge in not submitting self-defense presents no error, because, even if the court did purposely or by oversight omit it, he gave appellant’s charge on the subject just as asked by appellant.

The third ground of appellant’s motion for new trial is: “The court erred in his charge to the jury in not giving in charge to the jury article 717 of the Penal Code”— then states the substance of this article without assigning any reason or specification why this should have been given. This is entirely too general to present the matter to this court for review, as held uniformly by this court. Byrd v. State, 151 S. W. 1071, and cases therein cited; Ryan v. State, 142 S. W. 883; Berg v. State, 142 S. W. 886; Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591; Luster v. State, 63 Tex. Cr. R. 548, 141 S. W. 209, and the various cases cited in the above decisions. However, we think the charge of the court, in the various phases submitting the case, substantially and sufficiently comprehended and embraced the effect of this article of the Code.

The court charged and fully defined what was a deadly weapon, as has many times been approved by this court and the Supreme Court. Skidmore v. State, 43 Tex. 93; Kouns v. State, 3 Tex. App. 13; McReynolds v. State, 4 Tex. App. 327; Briggs v. State, 6 Tex. App. 144; Wilson v. State, 15 Tex. App. 150; Branch’s Crim. Law, § 83, wherein he cites Hardy v. State, 36 Tex. Cr. R. 400, 37 S. W. 434; Tollett v. State, 55 S. W. 335; Wilson v. State, 37 Tex. Cr. R. 159, 38 S. W. 1013.

The knife with which the injury in this case was inflicted was described generally as a small pocketknife, with a handle “something like” 2% inches long. While the identical knife with which the injury was inflicted was not produced, one which was shown to be exactly like it was produced, identified, and introduced in evidence before the jury. They saw it, and with the manner of its use could as well tell, under the circumstances of its use in the hands of a large, powerful man as appellant was shown to be, whether it was a deadly weapon, without any witness specifically stating that it was or was not a deadly weapon, and, by the manner and extent of its use on a most vital part of the body, appellant’s intent to kill. Crutchfield v. State, 152 S. W. 1057, 1058; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Branch, Cr. Law, § 516, and cases cited by him.

The court fully and correctly defined malice, then submitted the case for a finding on this issue as follows: “If from the evidence you are satisfied beyond a reasonable doubt that the defendant, J. P. Luttrell, on or about the time charged in the indictment, in the county of Jack and state of Texas, on or about the 21st day of December, 1910, with a deadly weapon, or instrument reasonably calculated and likely to produce death or serious bodily injury from the manner in which it was used, and with malice aforethought, did assault the said Edward Oscar Williams with intent then and there to kill and murder him, by the means charged in the indictment; and if you are further satisfied by the evidence and beyond a reasonable doubt that said assault (if any) was not made under the immediate influence of sudden passion, produced by an adequate cause (as the same is hereafter explained to you in these instructions), or not in his necessary self-defense as hereinafter charged upon, then you will find the defendant guilty of an ‘assault with intent to murder,’ and so say by your verdict.” There was therefore no error on this question as complained by appellant in the sixth ground of his motion for new trial, claiming that there was no testimony showing that said instrument was a deadly weapon, or an instrument reasonably calculated and likely to produce death from the manner in which it was used; nor was there any error in this charge as further complained in this ground of his motion in that, instead, as stated by the court therein, “or not in his necessary self-defense as hereinafter charged,” he should have given, “and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury.” There is no material difference in this language, especially as the court gave appellant’s special charge on self-defense exactly as requested by him. Taking the charge as a whole, which must always be done, appellant’s said complaints point out no error.

It is elementary that the whole charge of the court must be considered when complaints are made of any specific portion thereof, or a few words or a sentence therein, so that there was no error in the following paragraph of the court’s charge: “If you believe from the evidence that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was upon malice aforethought, with intent to murder (as herein explained to you), then you will acquit him of that offense, and next consider whether he is guilty of an aggravated assault” — for the court did not thereby eliminate from the consideration of the jury appellant’s self-defense. As stated above, the court fully submitted appellant’s self-defense in a special charge just as requested by appellant, and told them that if he committed this assault and battery in self-defense to acquit him. And, besides, in submitting to the jury the question of aggravated assault, he did so in accordance with the law as applied to the evidence in this case, and specifically therein told them they could not convict him, even of aggravated assault, if such assault was in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury. Again, in another paragraph of the charge, he plainly told the jury that if they believed, beyond a reasonable doubt, appellant was guilty of either an assault with intent to kill, or an aggravated assault, and they had a reasonable doubt of which it was, they would give him the benefit of it, and not find him guilty of a higher offense than aggravated assault. And further charged that the defendant is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt; and in case they had a reasonable doubt as to his guilt to acquit him, and say by their verdict not guilty.

The court defined manslaughter as prescribed by the statute, and specifically told them therein that an assault and battery causing pain or bloodshed was an adequate cause, but in so stating the statute, quoted it literally: “An assault and battery by the deceased, causing pain or bloodshed.” In submitting this question to the jury, however, he charged: “If the defendant did assault and cut said Edward Oscar Williams with a knife, and if, just before he did so, the said Williams had made an assault and battery upon the person of the defendant, causing pain or bloodshed, and if thereby the mind of the defendant was rendered incapable of cool reflection, as hereinbefore explained, or if, in connection with said assault and battery (if any) upon the person of the defendant, causing pain or bloodshed, together with all the facts and circumstances in the case (if any), the mind of the defendant was rendered incapable of cool reflection, and if, in this state of mind, he assaulted and cut the said Edward Oscar Williams, and if he was not justified in so doing, he would not be guilty of any higher offense than aggravated assault; or if you find and believe from the evidence that if the defendant had killed the said Edward Oscar Williams when he assaulted and cut him (if he did so assault and cut him) the killing would have been manslaughter as hereinbefore defined, the defendant would not be guilty of a higher offense than aggravated assault. In determining whether or not adequate cause existed, sufficient to render the mind of the defendant incapable of cool reflection, you will consider all the facts and circumstances in evidence in this case; and in this connection you are charged that any condition or circumstance capable of creating, and which does create, sudden passion, such as anger, rage, resentment, or terror, rendering the mind for the time being incapable of cool reflection, is adequate cause.” So that the jury could not have been misled by the court in defining manslaughter, quoting the statute and using the word “deceased” where it was used.

Neither did the court err in not telling the jury as a matter of law, as claimed by appellant, that the fights or assault and battery at the blacksmith shop, taken together with the assault and battery at the time appellant stabbed and cut Williams, as shown in law, constituted adequate cause, but the court properly submitted this question with all of th.e facts and circumstances to the jury for them to determine whether or not all these things were or not adequate cause.

Appellant, in this and in the. previous trial, claimed that the court should submit the question of cooling time. This court in the previous appeal in this case held that the court below erred in not charging on cooling time. The record in this case shows that in this trial appellant urged that this should be done, and the court, in compliance therewith, did charge on cooling time. And on this point charged the jury: “If you believe from the evidence that the defendant did assault and cut said Edward Oscar Williams, and if you further believe that a minute or two before, at the blacksmith shop, the said Edward Oscar Williams had made one or more assaults upon the person of the defendant that caused pain or bloodshed, you are charged that these facts are sufficient in law to reduce the offense (if any) ■ from assault with intent to murder to aggravated assault; and, if you believe the mind of the defendant was thereby rendered incapable of cool reflection, and if you further believe that there was not sufficient time, from the encounter at the blacksmith shop until the cutting occurred (if it did occur), for the mind of the defendant to become cool and deliberate, or for such anger, rage, sudden resentment, or terror, to subside, and for reason to resume its sway, in such case the defendant would not be guilty of a higher offense than aggravated assault” As stated above, the court, having fully submitted appellant’s self-defense in his charge just as requested by him, and it being necessary to look to the whole charge when a given paragraph is attacked,, this charge on cooling time did not eliminate appellant’s self-defense, as claimed by him in an attack on this charge, nor did the court, as claimed by him, place the time between the fights at the blacksmith shop and the assault, when appellant stabbed and cut Williams, at double the time as stated in the charge above quoted, “if you further believe that a minute or two before, at the blacksmith shop,” etc. The charge of the court literally followed the testimony on this point. Nor did the court by this charge, in substance or effect, tell the jury, as a matter of law, that appellant was guilty of an assault with intent to kill.

All of appellant’s special charges which were refused when proper were fully and sufficiently covered by the main charge of the court.

There is no bill of exception to the claimed argument of the county attorney, and without this no error is shown by the court’s refusal to give appellant’s special charge, complaining of one short sentence of the county attorney’s argument. Even if he used this expression, there is no reversible error in his doing so.

The evidence was amply sufficient to sustain the verdict. The jury inflicted the lowest punishment prescribed by law. There is therefore nothing in appellant’s contentions that the evidence was insufficient to sustain the verdict of the jury.

As said, by Mr. Branch in his Criminal Law of Texas, § 518, p. 340, of a charge in this character of offense: “No particular form of charge is required. If charge defines assault and malice aforethought, and requires the jury to find beyond a reasonable doubt that defendant made an assault on alleged injured party with malice aforethought and with the intent to kill, it is ordinarily sufficient. White v. State, 34 Tex. Cr. R. 155 [29 S. W. 1094]; Farrar v. State, 29 Tex. App. 254 [15 S. W. 719]; Hooper v. State, 29 Tex. App. 617 [16 S. W. 655]; Riojos v. State, 55 S. W. 172; Williams v. State, 38 Tex. Or. R. 145 [41 S. W. 626]; Henry v. State, 54 S. W. 594; Moseley v. State, 70 S. W. 546.” All this having been done, and the evidence amply sustaining the verdict of the jury, the case will be affirmed.


text:
    CLAY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Indictment and Information (§ 189)— Triad — Dismissing Charge.
    Under an indictment for murder in the first degree, it is proper on motion of the district attorney to place defendant on trial for no higher grade of offense than murder in the second degree.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 582-596; Dec. Dig. § 189.] .
    2. Juey (§' 70) — First Degree Murdeb- — Reduction of Offense — Special Venire.
    Where a charge of murder in the first degree has been reduced by the district attorney going to trial on a lesser degree, the defendant is not entitled to have a special venire summoned, but may be required to select a jury from a panel for the week.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 810-330, 840, 850; Dec. Dig. § 70.]
    3. Homicide (§ . 191) — Evidence—Previous Assaults by Peeson Killed.
    Where a. defendant in a trial for homicide has testified that the deceased* was approaching her with a knife, saying that he was going to kill her, evidence of recent attempts by the deceased to kill or inflict serious injury upon her was admissible as bearing on her good faith in claiming that she then feared she would be killed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 414; Dec. Dig. § 191.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Josephine Clay was convicted of homicide, and she appeals.
    Reversed and remanded.'
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was indicted, charged with murder in the first degree. Before announcing for trial, the district attorney filed a written motion stating -the evidence would not sustain murder in the first degree, and asked that appellant be placed on trial for no higher grade of offense than murder in the second degree, which motion was sustained by the court by order duly entered, when the court refused to order a special venire summoned, and required appellant to select a jury from the panel for the week. In this the court did not err. In Gentry v. State, 152 S. W. 635, we discussed this question at length and do not deem it necessary to do so again.

The defendant testified in her own behalf and said on the morning of the difficulty deceased came home angry. After some words she details the difficulty as follows: “He commenced cursing me, and from that we got to quarreling, and he hauled off then and hit me, hauled off then and slapped me two or three licks over the head; I asked him what he was jumping on me for; he said, ‘God damn you, I intend to kill you;’ and then I and him was that time then at the front hall door; and then his mother and little girl came there and caught hold of him and commenced trying to catch him and hold him away from me, and he slapped me three or four times over the head, and he ran his hand in his pocket and pulled his knife out. He said,. ‘Mamma, I am going to cut her God damn throat; I am going to kill her;’ he had me back up against the wall holding me with that hand and had his knife drawed back, and I hollered for my girl; she was hollering to him, ‘Calvin, don’t kill Josephine for nothing.’ He said, T am going to cut her God damn throat,’ and had his knife brought back and had my back against the wall. I called, ‘Lina!’ I said, ‘Come here and help me; don’t you see Cap here trying to kill me?’ When I called for Lina, as to what kept him from stabbing me, he had me against the wall and his mamma and daughter was holding down to his hand so he could-n’t cut me with the knife; I hollered for Lina, and she came running, and she came to the steps and throwed. up both hands and says, ‘Oh, Cap, don’t kill my mamma;’ he said, T won’t only kill her, but, you God damn wench, I will kill you;’ and at that time he throwed out after her, and then his ma and his daughter put me in the bedroom, and then she sends Babe on out to hunt for Buddy, his brother; and then Mamma and me was in the room; Mamma had me in the bedroom talking to me; and I said, ‘Mamma, I ain’t going to do anything to him if he don’t try to kill me.’ She said, T don’t know what is the matter with Calvin;’ and so he kept on. I was standing on the foot of my bed. She was kinder on, kinder at my back, and he came back. After he had been chasing Lina he came back and pushed the door wide open and made two steps at me with a knife; I ducked betwixt Mamma and the foot of my bed under him, and, when he made the third one, I pointed the gun right up that way and fired.”

After testifying as above, the defendant offered to testify to the following facts, as shown by bill of exceptions No. 5: “That at one time about a year before the homicide, while they were living near the store of Banner Manake, he tried to kill her with a bed slat, and that he would beat and bruise her, and she only saved her life by flight, and that afterwards, and a short time before the homicide, while she was living near Tony Magetta, he assaulted her with a club and his fist, and that at another time, about a month before the homicide, he again assaulted her and beat her and threatened to kill her, and that on the Thursday before the homicide he assaulted the defendant and beat her and threatened to kill her.” The court sustained an objection to this latter testimony, and in that we think he erred. It would tend strongly to support her plea that she thought and believed he intended to kill her. at the time she shot him, and the jury is to view the circumstances as it reasonably appeared to her at the time.

Appellant also offered to prove some of the same facts by Banner Manake and Tony Magetta, and the court erred in excluding this testimony also. When a defendant testifies that the deceased was approaching her with a knife, saying he was going to kill her, previous acts a short time before in which he attempted to kill or inflicted serious bodily injury are admissible in evidence as bearing on her good faith in claiming that she then and there feared she would be killed. It is useless to discuss the bill relating to the overruling the motion for a continuance as the case will be reversed and it will not likely occur on another trial.

The judgment is reversed, and the cause remanded.