author: DAYIDSON, J.

text:
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Criminal Law (§ 1054) — Appeal—Reservation on Gbounds oo? Review — Exceptions.
    Alleged errors in admitting testimony could not be reviewed on appeal where no exception was reserved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.]
    2. Criminal Law (§ 1099) — Appeal—Statements op Fact — Time pob Filing.
    The evidence introduced on a motion for a new trial on the ground of newly discovered evidence could not be considered on appeal, where it was not filed until long after the adjournment of the term of court.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Criminal Law (§ 507) — Testimony op Accomplices — Who abe Accomplices.
    Where parties, after committing a homicide, went to the home of a woman from whom they had rented rooms, and while there told her the facts concerning the killing, it not appearing that she was paid the room rent with the money stolen from deceased, she was not an accomplice, though she concealed her knowledge of the killing for some time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    4. Criminal Law (§ 1038) — Appea3>-Reser-vation op Grounds op Review — Exceptions.
    Where no exceptions were taken to the charge during the trial, and none were presented in a motion for a new trial or by bills of exception, and the alleged errors in the charge were not of such a radical nature as to authorize a conviction not justified by the indictment, such alleged errors could not be raised for the first time in the brief on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    5. Criminal Law (§ 1159) — Appeal — Review-Questions op Fact.
    Where, on a trial for homicide, the evidence for the state showed a cold-blooded killing, and accused’s connection therewith was shown by the testimony of an accomplice, which was corroborated, the verdict could not be disturbed, though accused’s testimony tended somewhat persuasively to show that the killing was by a third person.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    On Motion for Rehearing.
    6. Criminal Law (§§ 1092, 1099) — Appeal-Statements op Fact — Time pob Filing.
    Where court adjourned April 5th, and about July 1st the trial judge went to G. on his vacation, first advising the county attorney that if any disagreement as to statements of facts or bills of exception arose he would immediately return and take up the matter, and counsel neither notified him in order that he might return nor went to G. to have the bills and statement approved and, though filed July 3d, they were not approved until after the expiration of 90 days from the adjournment of court, they could not be considered, as no diligence to procure their approval in time appeared.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2866-2880, 2916; Dec. Dig. §§ 1092, 1099.]
    7. Criminal Law (§§ 1092, 1099) — Appeal-Statements op Fact — Time pob Filing.
    The filing of a statement of facts and bills of exception within 90 days from adjournment of court would not entitle them to consideration, where they were not approved until after the expiration of 90 days, since the filing was not authorized until they were approved.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2916; Dec. Dig. §§ 1092, 1099.]
    8. Criminal Law (§§ 1092, 1099) — Appeal-Statements op Fact — Time pob Filing.
    Where a failure to get the statement' of facts and bills of exception into the record within the time required arises from no fault of accused and they are subsequently approved by the judge as correct, they will be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2916; Dec. Dig. §§ 1092, 1099.]
    9. Criminal Law (§ 1097) — Appeal — Re-versáis — Depects in Record.
    Where accused, through no fault of his, is for any reason deprived of a statement of facts, the judgment will be reversed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Ed Jones, alias Ed Hodgkins, was convicted of murder, and he appeals.
    Affirmed.
    Claud C. Westerfeld and Ben Savage, both of Dallas, 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

   DAYIDSON, J.

This conviction was for murder; the death penalty being assessed.

There are no bills of exception in the record. All errors urged and complaints made of matters occurring on the trial are found in the motion for new trial. The second, third, fourth, and fifth grounds of the motion insist that the court erred in its ruling admitting testimony. These questions cannot be considered because exception was not reserved, and the matters are not verified as required by our procedure in order to authorize revision.

There are other grounds set up in the motion for new trial pertaining to alleged newly discovered testimony. It was undertaken to perpetuate these questions in a statement of facts, showing the evidence introduced on motion for new trial with reference to such newly discovered testimony. Under the decisions this cannot be considered because it was filed long after the adjournment of the term of court — 80 odd days in fact. The rule has been adhered to in this court that evidence introduced in regard to matters set up in the motion for new trial must be filed during the term of court. Under this rule the statement of facts in regard to these matters cannot be considered.

It is contended also in motion for new trial that the witness Mary Lott was an accomplice. We cannot agree with counsel in this matter, as this record presents that phase of the case. The witness Tolbert turned state’s evidence under an agreement with the county attorney. He testifies to a conspiracy followed by a cruel homicide for the purpose of robbery, and that he, appellant, with Jim Banks, alias Dirty Red, consummated that agreement by killing deceased and getting his money to the amount of $200 in currency. We deem it unnecessary to go into a detailed statement of this evidence; it is voluminous. The witness did detail it with minute circumstantiality. He was examined and cross-examined at great length, and described how they discovered the man with the money in the city of Dallas, drank with and induced deceased to treat the three. They followed him to Oak Cliff, where he had informed them he was going, and, just before reaching the edge of Oak Cliff, at the end of the viaduct they killed by striking him twice on the head with an iron bar about 30 inches long and 1½ inches in diameter. They then dragged his body a short distance from the road or street in some weeds, where it was discovered. When this was done they returned to Dallas to the residence of Mary Lott, whom it is claimed is an accomplice. Mary Lott testified the three came to her house after she had retired, knocked upon the door, that she got up and admitted them. Sitting about the room they mentioned the fact that they had made some money easy, and said if they would do like they had done they would not have to work so hard. Upon inquiry by Mary Lott, they informed her they had gotten this money by “turning” over a white man. In other words, the substance of ■it is that they had killed a white man and got his money. It is also shown that they divided the money before leaving the house the next morning. Tolbert testified they divided the money at the house, he getting $50, and that he understood appellant was to receive the larger portion, perhaps half of it. The witness Howard to some extent corroborates him as to the division of the money. Mary Lott testified that two or three parties rented from her a room which they occupied for a week, and at the end of the week they paid the rent and went away. The third one of these parties spent the night and paid for his occupancy of the bed the next morning. The cross-examination of this witness was rigid.and critical, evidently for the purpose of discrediting her in every way they could by such examination. This is the substance of the evidence seeking to make her an accomplice, unless it be by the further fact that she was the paramour of the witness Howard. We are of opinion this evidence does not make Mary Lott an accomplice. It is true that she concealed her testimony, or at least did not let it be known for two or three months after the homicide. This would amount to a concealment of the evidence given on the trial. Mere concealment of facts criminating in their nature does not constitute the witness an accomplice. This we understand to be the rule announced in Noftsinger v. State, 7 Tex. App. 301. See Branch, Orim. Law, § 319, for collated cases. It is not shown that she was paid room rent with the stolen money.

In an able and exhaustive brief, which shows great research and ability on the part of appellant’s counsel, it is contended there are reversible errors in the charge, and not only so, but in the failure of the court to charge the law thought to be applicable to the facts which, if given, might have been beneficial to appellant. The trouble is there were no exceptions taken to the charge during the trial; none presented in -motion for new trial or by bills of exception. They are raised for the first time in appellant’s brief in this court. As these are presented, they cannot be considered under our decisions. They are not of that fundamental nature which would require this court to revise for the supposed errors. It is well known that the writer has not been in harmony with this line of decisions from their inception. Johnson v. State, 42 Tex. Cr. R. 87, 58 S. W. 60, 51 L. R. A. 272. There has been an unbroken line of decisions sustaining the Johnson Ca^e. In three or four of these the writer wrote dissenting opinions, but his views have not obtained. If the errors of omission or commission complained of in the brief were of such a radical nature as to authorize a conviction not justified by the indictment, this court would unhesitatingly consider same and reverse. Such has been also the recognized rule by decision.

It is claimed that the evidence is not sufficient. Whatever we may think about that question, the testimony is such that the jury was authorized to reach the conclusion they did. There were two theories strongly presented; the jury could believe either, and they exercised their judgment in favor of the state. We are not authorized to disturb the verdict under such state of facts. Enough has been stated, so far as the state’s side of the case is concerned, to show a cold-blooded killing by somebody. The state connected this up with the accomplice Tolbert, whose evidence is corroborated. The defendant testified that he had nothing to do with the matter, and supported his testimony fairly, well. He also introduced evidence showing that the killing could have been and was done by another party or other parties. Some of the facts are rather persuasive. Appellant’s testimony also shows, and from experts, that the deceased may not have been killed, and probably was not killed, by the use of a blunt instrument, but by the use of a sharp instrument. If the deceased was killed by the use of a sharp instrument, the state’s case would fail, because Tolbert swore deceased was killed with an iron bar. The wounds on the head, there being two, either fatal, are shown by the embalmer and other testimony to have been inflicted, at least more than probably so, by a sharp instrument. Defendant’s testimony places a man named Nelson in such position that he not only could, but probably did, do the killing, and with an axe. It is not the purpose of this opinion to go into the details of the testimony of either side. These matters were before the jury, and, whatever might be the personal belief of the writer, we are of opinion the jury was authorized to reach the verdict they found.

The judgment will be affirmed.

On Motion for Rehearing.

The judgment herein was affirmed some time since, and appellant has filed a motion for rehearing. .In the opinion of affirmance it was stated the record contained no bills •of exception. The motion for rehearing is not accompanied by bills of exception, but is accompanied by an affidavit of Judge Crawford, the district judge who tried the case. The bills of exception and statement of facts bears file mark of July 3d. The court, adjourned on the 5th day of April. The latter part of June or first of July, Judge Crawford went, to Galveston to spend his vacation, at which time there were several statements of facts and bills of exception in cases tried before him to be approved. He says: “Before leaving Dallas, I advised the county attorney that, in the event there arose any disagreement as to statements of facts or bills of exception in any case between the attorneys representing the state and the defendant, that I would immediately return from Galveston and take the matter up of approving the statements of fact and bills of exception with counsel for both sides; and in this connection directed the county attorney that, in the event of such disagreement, he at once notify me at Galveston of such disagreement and that I would return to Dallas for the purpose above stated. While in Galveston I received no notification of any kind or character as to any disagreement upon any statements of fact or bills of exception in any case in my court. That the bills of exception in the ease of Ed Jones, alias Ed Hodgkins, appellant, v. State, were filed in the criminal district court No. 2 on July 3, 1913. I am advised by Messrs. Westerfeld and Savage, counsel for the defense, that the statement of facts and bills of exception were presented to the county attorney of Dallas county some 10 or 15 days prior to the time they were filedx in court. I returned from Galveston about the 20th or 21st of July, and on the 21st or 22d I was stricken with appendicitis and taken to the Paul Sanitarium, and there remained for a period of about two weeks, and after being removed from the sanitarium was confined at my home for a period of about one week longer. Upon my return to the bench the bills of exception and, I believe, the statement of facts were presented to me and approved by me.” The 'statement of facts shows to have been approved on August 11th, and it seems the bills of exception, from the statement of the judge, were approved the same time. In writing the original opinion- the writer did not notice that the statement of facts was not approved by the judge until the 11th of August, and until the motion for rehearing was filed this matter was not observed. Therefore the case was passed on upon the theory that the statement of facts was filed within the 90 days, or rather within the time authorized by law.

The filing of the statement of facts and bills of exception on the 3d of July would not meet the question of diligence. The filing of the statement of facts is not authorized until approved by the judge, and would have no force and effect as bills of exception and statement of facts until so approved. If the failure to get the statement of facts and bills of exception into the record within the time required arose from no fault of the defendant, and they were subsequently approved by the judge as being correct, they would be considered; but if he was for any cause, through no fault of his, deprived of a statement of facts, the judgment would be reversed for that reason. Appellant’s counsel do not controvert the statements of the district judge in any way, but attaches it to his motion for rehearing. Therefore, taking the statement of the judge as showing the real condition of affairs, and as being correct, he could have been reached at Galveston in ample time to have had the statement of facts and bills of exception approved and filed before the 5th of July, which seems to have been the last day in which they could have been filed under the 90-day rule. It is shown that the time was extended to the complete 90 days; but, even had it not been, it would seem, under our practice laid down by the decisions of this court in felony cases, that a party would have 90 days as a matter of law. It appears further that the statement of facts and bills of exception were presented to the county attorney 10 or 15 days before being filed on the 3d of July. The district judge was not notified so that he might return and look over the matters, nor did counsel for appellant seek the district judge or send him the bills of exception and statement of facts. This shows a want of diligence under all of the authorities in securing the approval of the judge. Had he been notified, he would have returned, as he states, or in the absence of notification, as he had indicated, counsel could have gone to Galveston. Under the decisions and the practice, this does not show diligence to secure the evidence and the bills of exception. Therefore the bills of exception could not be considered if presented to this court. The statement of facts even is not in condition to be considered by the court, but the writer overlooked that fact, and it was not called to his attention that the statement of facts was filed on 11th of August, when same should have been filed by 5th of July. The district judge did not go to the sanitarium on account of sickness until after the 21st of July; therefore his sickness and absence would not meet the question of failure of diligence on the part of appellant.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    WHITTLESEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    On Motion for Rehearing, Jan. 28, 1914.)
    1. Intoxicating Liquors (§ 236) — Wrongful Sale — Evidence.
    Evidence held to sustain a conviction of selling intoxicating liquors in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. §§ 300-322; Dee. Dig. § 236.]
    On Motion for Rehearing.
    2. Intoxicating Liquors (§ 241) — Wrongful Sale — Conviction — Appeal — Statement of Facts — Contents.
    A conviction of selling intoxicating liquor in prohibition territory cannot be sustained on appeal, where the statement of facts fails to show proof that prohibition was in force in the county at the time of the alleged sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 349-354; Dec. Dig. § 241.)
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Travis Whittlesey was convicted of selling intoxicating liquor in prohibition territory, and he .appeals.
    Reversed and remanded on rehearing.
    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 convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at imprisonment in the county jail 20 days and a fine of $25.

The only assignment in the motion raises the issue of insufficiency of the testimony. The evidence would show that appellant and another white man attended a negro dance at night. Sidney Green testified: “I was at a negro frolic at Dock Redds about the 15th of last February. I.saw the defendant, Travis-Whittlesey, there with Mr. Calud Toole that night. I saw the defendant by the side of the road by an old crib where I bought some whisky from him. I first saw him standing in the yard in the light, and he asked me if I wanted some whisky, and I told him I did. I went down to the old crib near the house, and he sold me a pint for a dollar.” Arthur Patton, the person to whom the sale is alleged to have been made, testified: That about 10 o’clock at night he went down the road and some one hailed' him and asked him if he did not want something. That he did not recognize who it was. That he had his hat pulled down over his face. He asked the person who hailed him how much it was worth, and he replied 75 cents. That he paid him 75 cents and got a pint of whisky. That he was standing against the old crib near the house; it being the same place where Sidney .Green said he purchased whisky from appellant. Patton could not and-did not identify appellant as the person who sold him the whisky.

The court submitted the case to the jury, charging them that it was a case of circumstantial evidence. After instructing them they could not convict appellant for a sale-made to any person other than to Arthur Patton, he instructed them: “In determining whether or not a sale of intoxicating liquor was made to Arthur Patton at the time and place alleged, and in determining whether or not the defendant made said sale, if any, you will look to all the facts and circumstances in evidence before you; and in this connection you are charged that, in order to warrant a conviction of crime on circumstantial evidence, each fact, necessary to the conclusion sought to be established, must be' proved by competent evidence, beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused and no other person committed the offense charged. But in such cases it is not suffi--cient that the circumstances coincide with, account for, and therefore render probable, the guilt of the accused. They must exclude, to a moral certainty, every otlier reasonable hypothesis, except the defendant’s guilt, and unless they do so, beyond a reasonable doubt, you will find the defendant not guilty.” This placed the case before the jury in as favorable light as appellant has a right to expect, and the jury find the circumstances sufficiently cogent to justify a conviction. Sidney Green recognized appellant and bought a pint of whisky from him at the crib. Patton bought a pint from a person at the crib, whom he did not recognize, about the same time. No other person is shown by the record to have been near that crib that night, and, under such circumstances, we will not disturb their verdict.

The judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term. In appellant’s motion for a rehearing he calls our attention to the fact that there is no proof that prohibition is in force in Sabine county. Originally this was not called to our attention, but appellant apparently relied on the fact that in his opinion the evidence did not show with sufficient certainty that appellant was the person who. made the sale of the whisky. Now, in this motion he relies solely on the fact that there is no showing in the record that prohibition was ever adopted in Sabine county, and in this contention the record before us supports him. Evidently this proof must have been made or admitted on the trial of the case, for the court in his charge instructs the jury that prohibition is in force in the county, and there is no complaint of the court’s charge so instructing the jury, and if this was an open question, where the court so instructed the jury, and there was no contest over this fact in the trial of the case, individually the writer would be inclined to hold that an assignment that “the evidence did not support the verdict,” and this was the only way the matter was called to the attention of the trial court, and no objection being reserved to the court instructing the jury that prohibition was in force, would not bring this question before us for review properly. However, in an unbroken line of decisions, this court has held that, if the statement of facts does not show that prohibition has been legally adopted, the case must be reversed, and, in obedience to the law as thus laid down, the motion for rehearing is granted, and the judgment is reversed, and the cause remanded. It seems strange to us the county attorneys will labor so industriously to secure a conviction, and -then through a careless preparation of the record on appeal leave out matters proven that are .essential to the verdict being sustained. ■

The motion for rehearing is granted, and judgment is reversed, and cause remanded.


author: PRENDERGAST, P. J.

text:
    SIMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Larceny (§ 52) — Evidence—Admissibility.
    Where, in a prosecution for horse theft, the state, as a circumstance tending to prove the theft, introduced evidence showing that defendant sold the horse at less than its real market value, it was error to refuse to permit defendant to show by the purchaser that, at the time of the sale, he gave as his reason for selling that he was out of feed and wanted to buy feed for his other stock.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 187, 147; Dec. Dig. § 52.]
    2. Criminal Law (§ 414) — Evidence—Admissibility.
    Where, in a prosecution for horse theft, the state introduced the person to whom defendant had sold the horse, who testified as to. a part of the conversation with defendant at the time of the sale, it was error to refuse to. permit defendant to show the rest of the conversation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 936; Dec. Dig. § 414.]
    3. Cbiminai Law (§ 417) — Evidence—Heak-say.
    In a prosecution for horse theft, the court properly refused to permit witnesses to testify as to conversations they had had with the person from whom defendant claimed to have gotten the horse, since, not occurring in the presence of defendant, it was hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]'
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Minet Sims was convicted of horse theft, and he appeals.
    Reversed and remanded.
    Harry Tom King, of Galveston, and Cunningham & Sewell, of Abilene, 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.

From a conviction for horse theft, with the lowest penalty assessed, appellant prosecutes this appeal.

The evidence, as shown by this record, is amply sufficient to sustain the verdict. As the case must be reversed, however, we do-not discuss the evidence.

As one circumstance tending to show that the horse sold by appellant to C. E. Jacobs was stolen, the state introduced evidence showing that he sold the horse to Jacobs at less than its reasonable market value. The state introduced Jacobs, who testified, among other things, that, before noon' on the day he bought the horse, appellant came to him, told him about the horse and his wanting to sell it, and he agreed at that time to go by where appellant had the horse that day and see the horse and see if he could trade for him; that later in the same day he did go by where appellant had 'the horse, saw him, and at that time bought the horse, which appellant then and there' delivered to him, and he took it on home with him; that he did not then pay appellant for the horse, but as agreed between them, because he did not have his checkbook with him, appellant would come to his (the witness’) house the next day and get the check in pay for the horse, which was done. By one of appellant’s bills he shows that in one or the other of these first interviews, the witness could not be certain which, appellant gave as a reason for taking the price he did for the horse that he was out of feed and wanted to get the money to buy feed for his other stock. This evidence was admissible. The state had brought out a part of the conversation in the negotiations by appellant with the witness, and the appellant was entitled, under the statute, to all of the conversation or negotiations on the subject. As the state had proved as a part of its case that appellant sold the horse to the witness at less than it was worth, the appellant had the right to show that, at the time he made the sale or was negotiating with the witness, to effect the sale, he explained the reason why he was taking less than the reasonable market value of the horse. The court, it seems, as shown by the bill, concluded, from all the testimony heárd in the absence of the jury at the time, that this statement by appellant to the witness Jacobs of why he was taking less than the horse was worth did not occur until after the consummation of the sale and until the next day, when the appellant went to the witness to get the check in pay for the horse. Upon a careful examination of the bill, we think the court was clearly in error in his conclusion as to the time when this statement was made by appellant. The bill shows that it was made at one or the other of the conversations or negotiations between appellant and the witness as to the sale of the horse and did not occur next day, when the appellant went to the witness and got the check. If, as a matter of fact, the conversation had not occurred at or before the sale ■of the horse and had not occurred until the next day when appellant went to get the check, the evidence would not have been admissible. But clearly we think' from the bill the conversation and statement by the appellant to the witness Jacobs did not occur when he went to get the check but at one or the other interviews and was admissible. Por this error this case must be.reversed.

Appellant has two other bills of exceptions. By one it is shown that he offered to prove by his witness J. E. Hallmark that, at some subsequent day after the consummation of the sale to Jacobs of the said stolen horse, Trav Harmon, from whom appellant claimed to have gotten the horse in a trade, told the witness that he had swapped said stolen horse to appellant and how he (Harmon) had heard the horse was his; that he had lost a mare some 12 years before, and that Mr. Hale told him he had found her and she had four colts and that this was one of her colts. In another bill appellant sought to prove by A. P. McWilliams that some time between January 1 and 15, 1913, said Harmon had talked with the witness about pasturing some stock in his (the witness’) pasture, and in the conversation he told this witness he had found the mare he had lost several years ago and she had raised four colts, and he wanted to get pasture for them, and in the conversation he told the witness who told him about the horse being his (Harmon’s). The record shows that said Harmon claimed that some 12 years, more or less, before January, 1913, he had lost a mare and had not seen or heard anything about her until this time, when he was told by some person, as claimed by him, that this old mare was in a certain pasture and had four colts, and that the alleged stolen horse in this case was one of those colts. It is also shown that said Harmon was also under indictment at the time of this trial for the theft of the said horse; that neither of these conversations of the respective witnesses with said Harmon was in the presence or hearing of the appellant. The court, upon the objection of the state to this tendered evidence, sustained the objection and would not permit the witness to testify to these conversations with Harmon. This testimony was inadmissible, and the court correctly excluded it. Harmon himself could not testify in this case. Neither could his hearsay testimony be introduced. This offered testimony was clearly hearsay. The court had correctly permitted the appellant to prove by other witnesses the same character of testimony which occurred in the presence and hearing of the appellant. This was permissible, but the testimony tendered was not permissible.

For the error above pointed out, the judgment is reversed, and the cause remanded.


author: DAVIDSON, J.

text:
    AUSTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Criminal Law (§ 1090) — Appeal — Statement of Pacts — Bills of Exception.
    Where there is no statement of facts or bills of exception, the grounds of a motion for new trial cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. «§ 2653, 2789, 2S03-2822, 2825-2827, 2927, 2928, '2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Ft. Bend County; Samuel J. Styles, Judge.
    Blake Austin, Jr., was convicted of theft from the person, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant, was convicted of theft from the person, his punishment being assessed at two years’ confinement in the penitentiary. The record is before us without a statement of facts or bills of exception. In this condition of the record, the grounds of the motion for a new trial are not reviewable.

The judgment will be affirmed.


text:
    PARKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Criminal Law (§ 1090*) — Appeal — Statement of Pacts — Bills of Exception.
    Where there is no statement of facts or bills of exception, the grounds of a motion for new trial cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. . §§ 265S, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Bike Parker was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

The statement of facts and bills of exceptions in this ease were not filed within the time permitted by law, and no question is presented in the motion for a new trial that we can review, in the absence of a statement of facts and bills of exceptions.

The motion of the Assistant Attorney General to strike out is sustained, and the judgment is affirmed.


text:
    JONES et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.
    Rehearing Denied Feb. 11, 1914.)
    1. Witnesses (§ 244) — Examination—Lead-ins Questions.
    Where, in a prosecution of defendants for murder of their father, the court certified that their sister was a reluctant and unwilling witness, in sympathy with defendants and under the domination of her mother, who was a strong partisan for defendants, it was not error to permit the prosecuting attorney to ask the witness leading and suggestive questions.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. § 244.]
    2. Homicide (§ 167) — Evidence, — Acts of Third Person.
    Where, in a prosecution of defendants for murdering their father by shooting him, there was evidence of animosity between decedent and T., who had married decedent’s daughter, evidence that on the day prior to the killing, T.j in company with defendants, purchased certain explosive shells of the same character as those used to kill deceased, was admissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 332-340; Dec. Dig. § 167.]
    3. Criminal Law (§ 14) — Statutes—Amendment Pending Trial.
    In a prosecution for homicide, the case was governed by the law in force at the time of the killing and the beginning of the trial, and not by a statute changing the law with reference to degrees of murder which took effect before the trial closed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. g 15; Dec. Dig. § 14.]
    4.Homicide (§ 43) — Adequate Cause.
    Where, in a prosecution of certain sons for killing their father, it appeared by the testimony of both that they killed him because of his alleged threats to kill them when they went to their home to care for the safety of certain younger children, and it did not appear that the publication of a newspaper article, consisting of a confession by their mother that she was addicted to the use of opium and was to blame for their domestic unhappiness, had anything to do with the killing, the fact that deceased compelled his wife to make such confession and procured its publication, did not constitute adequate cause sufficient to reduce the offense to manslaughter.
    ![Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Robert and Charley Jones were convicted of murder in the second degree, and they appeal.
    Affirmed.
    J. C. George, of Brownsville, and Marshall Ferguson and J. B. Keith, both of Stephen-ville, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The appellants were prosecuted, charged with the murder of their father, found guilty of murder in the second degree, and their punishment assessed at 50 years’ confinement each in the penitentiary. The evidence would show that deceased was the father of a number of children; that he was harsh and brutal in his treatment of his children at times; that deceased and his wife had separated once on account of his conduct towards his wife, but they had, after he had made promises, again renewed their marital relations. The wife, at the time the killing took place, was visiting a married daughter. The evidence would tend to show that when he and his wife had separated there was some talk in the neighborhood, and deceased feared that the matter of his conduct would be investigated by the grand jury, and he had told his wife and children that if the matter was carried before the courts or grand jury he would get a gun and kill all of them; that in the afternoon, before the homicide took place that night, some of the children were summoned before the grand jury, and the oldest girl at home left, and informed appellants of the fact that the summons had been served. This puts the matter in as strong a light for appellants as the record would justify up to this stage of the proceeding.

The state’s testimony would show that Robert. Jones and his brother-in-law, Mr. Tackett, were in Dublin during the day of the night of the killing, and that Mr. Tackett purchased a box of shells that day. Robert Jones, being in the store at the time, having come in the store with Mr. Tackett, left with him. That night Robert Jones secured a shotgun at his father-in-law’s, and the father of Mr. Tackett, who purchased the shells. Deceased was killed with this gun, and the shells used were identical in make and kind as those purchased by Mr. Tackett. It appears that all of deceased’s family were absent from home on the night of the homicide, except deceased and two of his smaller children, Florence'and Junie Jones.

Florence Jones testifies as follows as to the occurrences she witnessed on the night of the homicide: “Papa, June, and myself were at home for supper that night, and no one else. I did not see Robert nor Charley that evening about supper time — I had not seen them at any time that day since early morning. After supper papa, Junie, and I went to bed. We wgnt to bed about 9:30 o’clock. My father undressed before he went to bed. He had on his night clothes. He slept in the front room — southwest room. My bed was located just outside on the porch from my father’s bed. Junie was sleeping on the back porch of the house. Nothing happened before we went to bed. I never noticed anything unusual in my father’s manner and demeanor. He seemed to be pleasant and agreeable to me and Junie — he didn’t have much to say. I woke up in the night when the shots began to fire. I' do not know the size of the room where my father slept. There is no fireplace in that room — the mantel board is between the two doors — no fireplace there. ' There was one dresser in the room. The house faces the west. The southwest room was generally used for a sitting room. There was just a wall between my bed and my father’s bed, and there was a window beside my bed, in the wall. The doors and windows were all screened. The first thing that attracted my attention that night was the shot fired. I was asleep at that time. I had been asleep all night. The shot was fired about 1 o’clock. When I heard the shot fire, I raised up in bed and looked through the window into the room — I saw Charley standing close to the door, in the east side of the large room. I heard papa say: ‘Oh! Allie, don’t kill me.’ He said: ‘Don’t shoot me any more! I will die anyhow.’ I heard my father groan. At that time, I got up and went into the room-going through this front door that opened out onto the front gallery. When I got into the room, my brothers, Charley and Robert, were in the room. I did not see my Uncle Allie Burnett there. I did not see Alvie Tackett there. There was nobody in the room but my two brothers and my father. I had gotten close to the east door that opens into the hall • before Charley and Robert came to me. I don’t remember which one of them came to me first. They both kissed me. They were both in the room. They said: ‘It had to be done, or he would have killed some of us, or maybe all of us.’ At the time they made this statement, my father was laying on his' side across the bed. His head was north. I' don’t know whether his head was in the direction of the foot of the bed. The head of the bed was southwest, and the foot was northeast. When I got into the room, my father was lying across the bed on his side, with his feet towards the south and his head toward the north. I don’t know whether I remained in the room any longer than a minute or not. The next thing I did, I ran through the hall and out on the gallery and woke Junie up. Before that, while I was in the room Charley had a shotgun in the room. There were two shots fired right close together before I went into the room, and before I went out on the back gallery to wake my little brother. In going out to wake up my brother Junie I went out through the east door, through a little room, then through another room onto the gallery at his bed. When I got there, my little brother was asleep. I waked him up. I told him to wake up; they were killing papa. I told him to jump up and put on his clothes. While I was there, Robert and Charley came out to the bed where we were. They told Junie they killed papa, and that it had to be done. Charley gave Junie his watch and chain and knife and trunk key, and told him to keep them till he came home. Robert gave me his watch, and told me to keep that till he got home. They told us they would have to go to Ste-phenville. After we talked to them there, Robert took the shotgun and went right straight around the gallery west and turned at the corner — went down the north gallery west, and turned at the corner, in the direction of my father’s room. After he got around there, I heard the gun snap, don’t know how many times — several times. I don’t know how long he remained around there at that time. When Robert came back he told Charley the gun wouldn’t shoot. Charley told him that he guessed it had two empty shells in it, and he took the gun, threw out the empty shells, and gave the gun to Robert. After Robert came back to where we were, he went back around there then. He traveled the same way this time in going around there that he did before. After he got back around there, I heard the gun shoot twice. Robert came back around there where we were. Junie and I were still there, think Charley was around there at the gallery somewhere — I did not see him at that particular time. After Robert came back the second time, he or Charley told Junie to go in there and light the lamp — it went out. There was a lamp burning in the room. The wick of the lamp was turned down tolerably low, wasn’t burning very bright. The lamp was on the dresser when I woke up, and was lighted, and the lamp was burning in that condition when I went into the room where my brothers were. The lamp went out when the last shot was fired. Robert told Junie to go in there and light the lamp, and Junie went in there and he said papa was breathing hard, and he got scared and ran out of the room without lighting the lamp.” The testimony of Junie Jones is, in substance, the same.

Dr. It. A. Miller testified he examined the body and found the four wounds. He says: “I tried to probe the wounds. Wounds in the localities that these were, it would be impossible, without an autopsy, to tell positively about the direction of the shots. I think I could tell the directions, with reasonable certainty. There was one of the wounds that was three or four inches above the right nipple. That was a kind of long wound, seemed like 2 or 2½ inches long. That was the only one in front. There was another wound about 2 inches below the point of the shoulder blade on the right side of the back, and another wound was about the upper portion of the lumbar vertabrse. That is on the back, and in fact, part of the backbone was cut oft by the shot, about one-third of the side of the backbone, what is called the joint known as the upper lumbar vertabrse. Another wound 4 or 5 or 6 inches to the left side of the back, four wounds in all.”

The evidence for the state would support the theory that the two brothers in Dublin formed the design to kill their father; traveled five miles to his home, .went into the house in the dead hours of night, and killed him because of his past misconduct and fear of his future misconduct. On the other hand, the theory of the defense is, and it is supported by the testimony of the defendants, and other facts and circumstances testified to, that their father had been brutal towards the children and their mother all the days of their lives; shortly before this their mother had separated from their father (deceased), and gone to her father’s, carrying the youngest child with her; that at this time their father’s misconduct towards his wife and children became known in the community generally, and there was some talk of prosecuting him on account of these misdeeds. Their father went to the mother determined to get the baby child, taking these two defendants with him. The mother and father became reconciled, and she returned home with their father. They say their father did not live up to the promises made on this occasion, but in a short time renewed his course of cruel and improper treatment toward their mother and the children. It is also made apparent of record that after getting the mother to return, the father (deceased) caused their mother to sign a statement acknowledging that she was the one who had been in error; that she was an opium fiend, and this had been the cause of her and her husband’s troubles and disagreement, the statement completely exonerating the father. Robert Jones had seen this statement before; in fact was the person who carried it to the newspaper for publication. Charley Jones had not seen it until the afternoon before the homicide took place that night. It is further in testimony for the defense that deceased feared prosecution for his misdeeds, and had said that if the matter ever got in the courts, or any of them ever appeared before the grand jury, he would take his gun and kill his wife and all their children, including the son-in-law and daughter-in-law. During the afternoon when deceased. and his children, Florence, Junie, and Jessie, were the only ones at home, the constable appeared with a subpoena for some of the children to appear before the grand jury, Jessie being summoned, when she at once left home, went to her brother Robert, and informed him of the fact. Robert then went to Dublin, where Charley had gone earlier in the day. They ate supper at a relative’s in Dublin. The testimony of the defendants is that, in view of the fact that their father had threatened the life of the entire family if the matter went into the courts, and the constable had summoned one of their sisters to appear before the grand jury, and had process for other members of the family, they became alarmed, and were afraid their father would that night kill. Florence and Junie, the only two children at home, and they decided to go home, get these two children, and carry them to a place of safety. They say they had no intention of killing their father, but knowing his violent and dangerous disposition, they armed themselves as a matter of protection. Charley purchased a pistol in Dublin that evening, and on the way to the father’s residence they went by the home of Robert’s father-in-law, where he procured a shotgun. That they then went to their father’s residence to get Florence and Junie. Robert Jones testified to his sister Jessie coming and telling him about the subpoena being served, and that it frightened him, and he took his wife and sister Jessie and went to Dublin, where they found his brother, Charley, at the home of their uncle, Allie Burnett. That they discussed the matter, and about the two children being at home with their father. He then says: “We stayed there till about 12 o’clock that night, Charley and I. Charley and I reached the agreement that we ought to get the two little children out from home if possible. We thought that we might find them on the back porch, on the bed, and we intended to slip in there and get them out. After we agreed to do that, we got in the buggy and drove on down the Dublin and Edna road to the branch. That is the road that papa would come in a part of the way if he should come to town, about one-fourth or one-half mile. When we were driving over that piece of road, we drove as fast as we could. We stayed off of that road until down toward home. After we got off of the Dublin and Edna road, we drove on down the Dublin and Purves road till we got to the other route and went around to my father-in-law’s house. When we got there, I got out of the buggy and halloed three or four times, ‘Hello, Mr. Tackett!’ Mr. Tack-ett came to the door, and I said: ‘Mr. Tack-ett, we are in trouble to-night, papa has been subpoenaed to the grand jury, and we are afraid he has killed the children, and I want your gun, so if we meet him I will have some protection.’ Mr. Tackett said: T can’t let you have it, Robert, I can’t let you have it.’ He was standing on the gallery. The gallery is V-shaped. He walked to the end of the gallery, and I passed oh by him, and I knew where the gun was sitting. I had been there from time to time, and knew where the gun set, and I knew where the cartridges set, and when Mr. Tackett passed on, I brushed around him and went in there and picked up the gun and reached into the box of shells at the foot of the gun and got five shells, if I remember. The gun was also loaded. That made 7 shells in all. Charley and I then drove down the hill and around back to the place about 200 or 300 yards east of the crossroads. I jumped out there and tied the horse and got the remainder of the shells in the buggy. I suppose that was about a quarter of a mile from our father’s house. We then went on up to the crossroads and listened about three minutes to see if we could hear any buggy going north or south. We thought at this time of night he might be after us. We thought he might wait till this time, and we walked on south down this road. We came on till we got to the edge' of the hill, and we were afraid to go on farther, there wasn’t any light — it was dark. We were afraid papa might be waiting for us or laying at the front possibly, thinking we went to prayer meeting that night. We went around at the cow lot and stopped around the back way. When we got around there, we listened, and there we noticed the light for the first time. The light appeared to be in the front room. After listening there, we walked around the barn to the water trough. At the water trough we were close, we thought we heard the slam of a screen door, and we then listened about three minutes and couldn’t hear any other noise, and we thought if he was about the front room or about the front, if we would pull off our slippers, we would walk to this place on the porch and get the children, and we pulled off our slippers. X set the gun by the trough, and after we got our slippers off, Charley picked up the gun and we went on to the back yard and thought we could look over the partition in the back yard and into the windows of the room. We did not see papa. There was a light in the room. There was nobody in the bed. We thought papa was gone. We then walked back to this bed on the east porch, back porch. We found our little brother Junie there, and he was still alive, and Charley said, ‘Here is Junie, he is still breathing, but where is Florence, she is not here.’ I said: ‘Let’s go into her room and see if she is in her bed.’ We then walked on to this east screen door and I took hold of the screen door and Charley walked in ahead of me — I was sorter to his side. We walked in through the kitchen and dining room and through the hall and came up to the front room and into the front room. We were not expecting our father there. On entering this room, to our surprise, papa jumped up in' bed, and said, ‘You sons of bitches; I will kill you both,’ and he whirled around with his right arm under him sorter and pulled himself up in bed, put his left hand to the gun which was leaning up against the bed. Charley then shot two shots, and papa had then grasped the gun and fell back on the bed sorter on one elbow, and when he fell back he jumped up with his feet hanging off the bed and turned around with his gun in his hand and started to fire on Charley, and Charley then shot with the pistol. Then after Charley shot with the pistol, papa jumped up from there and started around the bed. Charley threw the shotgun back, and I caught it in my hand and had taken the shells out. I don’t know what I did with the shells I took out of the gun. I was in such a fright. After I took the gun, X took the shell? out and reloaded the gun and started toward the couch. Just after Charley shot, papa started for me, and said, ‘Robert, you bitch; I will kill you,’ and just as he exclaimed this, he was on his elbow, on his right side like. I saw I didn’t have any chance to run and get out of the room, and Charley said, ‘Shoot, Robert, he will kill you,’ and I fired two shots. When I shot, papa’s fg.ce and breast were toward me. By this time, the room was nearly full of smoke— you couldn’t hardly see. I pulled the first trigger and then the other as quickly as I could. I didn’t even take aim — I had never shot a gun but twice before and don’t know where I shot. I don’t know whether he moved his position between the first shot and the second shot that X shot at that time. The light went out when I fired the second shot. The light glimmered, and I heard papa’s gun drop, and I gripped the gun as it dropped and I jumped forward and raked on the floor. I raked papa’s gun. I took the gun I shot him with in my left hand, and I started to unbreach it, and I felt the hammers were up on papa’s gun, and I took the two shells out of papa’s gun and set his gun behind the door and ran out with my gun.” Charley Jones’ testimony is, in substance, the same as Robert Jones.

The statement of facts is very lengthy, but this gives sufficient of it that the theories of the state and defendants may be clearly understood. If the theory of the defendants presents the correct theory, they would be justifiable in their course and conduct. If the state’s testimony is the true one, it was a predetermined killing, finally executed while the deceased was pleading for his life. There is much evidence in the record, both pro and con, tending to support each side of the case, but no useful purpose would be served by detailing it at length.

The first bill of exceptions relates to some questions to Florence Jones in regard to her mother using morphine, the objection being that the questions propounded “were leading and suggestive.” The witness was a young girl, and the court, in approving the bill, states that “she was a reluctant and unwilling witness throughout, being very much in sympathy with her brothers, and being under the influence and domination of her mother, who was a strong partisan for her sons, the defendants on trial.” As thus qualified the bill presents no error. Harris v. State, 37 Tex. Cr. R. 441, 36 S. W. 88; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Navarro v. State, 24 Tex. App. 378, 6 S. W. 542; Nairn v. State, 45 S. W. 703.

In the next bill it appears that Q. Harper testified that Tackett and Robert Jones came into his store, and while in there Alva Tackett purchased some shells. This occurred on the day of the homicide. The objection urged was that “the defendants were not responsible for what Tackett did, and the mere presence of defendant Robert Jones where the transaction occurred was no evidence against him unless he assented to it, or some fact from a unity of action might be inferred or implied; there being no evidence that Tackett was acting in said transaction in conjunction with or for the benefit of defendants.” In approving the bill the court says: “This bill is allowed with the explanation that the evidence showed that Alva Tackett had married a daughter of the deceased, L. W. Jones, and a sister of the defendants Robert and Charley Jones; that Robert Jones was also married to a sister of Alva Tackett; that L. W. Jones, deceased, had publicly stated that Robert Jones had married into a low family; that on the morning of the day that the homicide occurred that night Alva Tackett and Robert Jones were together at the residence of Jack Tackett, who was Alva Tackett’s father; that they left said residence in company with each other and traveled to Dublin, a distance of five miles, and in company with each other visited the store of the witness Quill Harper, and Alva Tackett purchased the shells about which said witness testified; that Alva Tackett and Robert Jones then returned to Jack Tackett’s residence together; that on the night of said day Robert Jones and Charley Jones proceeded to Jack Tackett’s residence from Dublin, and secured his, Jack Tackett’s, gun and some shells; that the same kind of shotgun shells loaded with the same kind of loads that were purchased by Alva Tackett in Dublin on that day in the presence of Robert Jones were delivered by the defendants Robert and Charley Jones to the officers at Dublin after L. W. Jones was killed and two exploded shells of the same kind and caliber as those purchased by Tackett at said time were found by the officers at the house of the deceased after he was killed and at the place where the state’s witness says the defendants extracted same from the shotgun, and the same size shot was also found in the body of the deceased as was shown to have been in the shells sold by witness, Quill Harper, to Alva Tackett, in the presence of the defendant Robert Jones.” Under such circumstances there was no error in admitting the testimony.

In the third bill of exceptions appellants complain that the court read his charge to the jury before the argument began. The trial of the case began on June 30th, and was completed July 3d. The law which requires that the charge shall be read to the jury before the argument begins became effective July 1st, after the trial began, but before its completion. As the trial began prior to July 1st, it.should have been conducted under the law in force at that time, but in the bill no ground of objection is stated, and in the bill it is not claimed that such action on the part of the court was injurious to appellants. A bill of exceptions, to bring anything before, us for review, must state the grounds of objection urged.

In the next bill appellants complain that the court in his charge defined murder upon express malice and murder upon implied malice (that is, the two degrees of murder under former laws). Those complaints of the charge which relate to the first indeterminate sentence law, and complain that the jury was authorized to assess the penalty for murder upon implied malice, or second degree murder, are without merit, as the first indeterminate sentence law was declared invalid by this court in Ex parte Randall Marshall, 161 S. W. 112, recently decided. The contention that the court ought to have instructed the jury under the late law, which does away with degrees in murder, is without' merit, as the offense, if any was committed, was committed prior to the time, when the new murder statute became effective. In addition to this, the trial began under the old law, and under all of our decisions it was proper to complete the trial under the law as it existed at the time the trial was begun. It is further made to appear by the bill that the court first prepared a charge under the laws effective July 1st, and submitted it to counsel for appellants, and appellants filed exceptions to this charge oh the ground, among others, that they were entitled to be tried under the law as it existed at the time the offense was alleged to have been committed, and at the time the trial was begun. These objections were well taken, and the trial court apparently so recognized and rewrote Ms charge, and instructed the jury the law as it existed at the date of the alleged offense, and in so doing he committed no error. There was a special exception urged to the court submitting the issue of murder upon implied malice; that is, murder in the second degree. As this was the law of this state at the time the offense was committed, and was the law at the time the trial began, it is clear the court committed no error under every decision ever rendered by this court. And as the indeterminate sentence law has been held to be void, the court correctly required the jury to assess the penalty for whatever offense appellants might be found guilty, if any.

TMs disposes of all the bills of exception in the record; but, as the trial was begun on June 30th, whatever law was in force at the time of commencement of the trial remained the law of that case until the trial was completed. Appellants could complain of the charge of the court in the motion for a new trial, for that was the law of this state on June 30th. In the motion for new trial appellants complain of the court’s charge on manslaughter in several respects, and also complain of the failure of the court to give appellants’ special charges Nos. 1 and 2 on the issue of manslaughter. In submitting the issue of manslaughter the court instructed the jury: “Now if you believe from the evidence in this case, beyond a reasonable doubt, that the defendants Robert Jones and Charley Jones, acting with each other under such circumstances as to constitute them principals as that term is hereinbefore defined, in a transport of passion aroused by insulting words or conduct on the part of the deceased toward the mother or the sisters of the defendants, or by the deceased’s ill treatment, if any, of the defendants and each of them, or of their little brothers and sisters, or by all of those things combined, or by them taken in connection with all the other facts or circumstances in evidence, and if you further believe from the evidence that such conduct on the part of the deceased toward the relatives of the defendants herein named, or toward the defendants, or either of them, constituted adequate cause to produce, and did produce in the minds of the defendants, and of each of them, such a degree of anger, rage, resentment, or terror as to render their minds incapable of cool reflection, and if you further believe from the evidence that while in said state of mind, in the state of Texas, and county of Erath, on or about the 6th day of June, 1913, they then and there did unlawfully and voluntarily shoot and kill the deceased, then you will find the defendants, and each of them, guilty of manslaughter, and so say by your verdict, and assess their punishments respectively at confinement in the penitentiary for any term of years not less than two nor more than five in your discretion.”

The first complaint is that the court erred in not instructing the jury, as a matter of law, that the article tendered to the newspaper for publication, hereinbefore referred to, was adequate cause to reduce the offense to manslaughter as to the defendant Charley Jones, as it appeared from the evidence that Charley Jones first saw the article that evening before the homicide took place that night. We do not think tMs would be a statutory adequate cause. The article was not written by the father, but was prepared and signed by the mother. It is true the article exonerated the father, and in it the mother took all the blame on herself for the family troubles, and admitted that she was a confirmed opium user. It may also be said that the testimony would show that it was prepared at the instigation of the father, and signed by her, and by the father sent to the newspaper for publication by Robert. It may also be true that Charley read it for the first time that evening, but the whole record discloses that he was aware that it had been written, and its contents, before he left home, where he met Ms father. He knew all tMs before he went to town, and hunted up the newspaper man to get to read it. If tMs article did reflect on his mother, it purported to be the act of Ms mother and not Ms father, and she had signed her name to it, and all the family apparently had known of the existence of the letter for several days, and had been with the father during that time. In addition to tMs both Charley and Robert testify that this had nothing to do with their taking the life of their father; that they had no intention of killing Mm when they went out to Ms house, but went after the two little cMldren, and they only killed him because he attempted to kill them. It could hardly be said to be manslaughter if one would read a communication in the afternoon, wait until 12 o’clock at night, arm one’s self, ride five miles to the house of the deceased, then go in his house, and shoot Mm while he is in bed, as contended by the state. Neither would manslaughter appear if they had no intention to kill when they went in the house, and the deceased then grabbed his gun, and said “You sons of bitches, I will kill both of you,” and attempted to do so. While the court submitted the issue of manslaughter in the language hereinbefore stated, we seriously doubt the facts attendant upon the homicide would raise that issue. Especially is there no statutory adequate cause in the case. Of course, if there was statutory adequate cause testified to by any witness, it would be error for the court not to so instruct the jury, but no witness testifies to any fact that would be statutory adequate cause. The nearest any witness comes to this is the statement of Mrs. Jones, in the record, wMch was furnished to the newspaper for publication. In this she admits she had become addicted to the morphine habit. It is her admission, no statement of the deceased. Of course, appellants insist that this was written by the mother at the instance and demand of the deceased, their father, bnt Mrs. Jones in her testimony admits that she had got into that habit twice, and had had the opium habit for seven years; that her husband was trying to break her of it; so that when Charley Jones saw that his mother in the statement admitted that she had been taking opium, he knew that, whether it was done at the request of his father or not, the statement was true, and it being no statement of the father, but an admission of the mother that he knew to be true, it would not be statutory adequate cause. The court in his charge permitted the jury to take this fact, together with all other facts in evidence, in passing on whether the facts were such as to be adequate cause in law to cause passion, having instructed them that by “adequate cause is meant such circumstances as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.”

Charley Jones himself testified: “We killed our father because he would have killed us right there if we had not killed him. We did not kill him because he whipped our mother. I cared for that, but I did not kill him for that. We did not kill him because he mistreated our little brothers and sisters. We did not kill him because he mistreated us. I did not kill him because he had mistreated Robert. I did not kill him because of any threat he made against me except the one he made there. I did not kill him because of any mistreatment of my mother. His cruelty to my mother did not prompt me to kill my father that night, nor the cruelty to the other children did not cause me to kill him. The sole and only cause that prompted me to kill my father was that my' father was trying to kill me. If he had not been trying to kill me in the manner and way I have detailed here, I would not have killed him regardless of these other things. These other things didn’t contribute to it at all, except that I was afraid of him. But I would not have killed him on account of that fear. My fear didn’t prompt me to kill him. What he did to my mother didn’t prompt me to kill him, and didn’t have anything to do with it.” Under such circumstances we do not think any one can contend that there was any statutory adequate cause as to this defendant. The court having instructed the jury on manslaughter as he did, it was no error to refuse the two special charges requested on this issue.

The court submitted the issue of self-defense fairly and fully under the facts, and in a way not complained of by appellants, and, according to our view of the facts, it was either justifiable homicide or murder. It is true that the evidence shows a course of continued ill-treatment by deceased towards his family, but when the circumstances are such as not to cause this misconduct to be deemed adequate cause in law to reduce an offense, then such facts become of cogent force and strength to prove the specific intent to kill under circumstances constituting murder. While the penalty assessed in this cause is severe, if the boys went to their father’s house and killed him under the circumstances detailed by Florence and Junie Jones, we cannot say that it is undeserved.

The judgment is affirmed.


text:
    FORESTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    Rehearing Denied Feb. 11, 1914.)
    1. Juey (§ 67) — Summoning — Interest of Sheriff.
    In a prosecution for assault with intent to murder, the sheriff was the prosecuting witness, and accused’s motions to have unprejudiced citizens perform the duties of the sheriff and his deputies, and to require veniremen whose names were drawn from the wheel to be summoned, were denied. Code Or. Proc. 1911, art. 54, provides that all duties imposed on a sheriff may lawfully be performed by his deputy, while article 680 declares that accused may challenge the array only on the ground that the officer summoning the jury has acted corruptly and has willfully summoned persons known to be prejudiced against accused. Held, that as no special venire is authorized in prosecutions for ordinary felonies, and as the statute expressly directs how the juries shall be formed, the denial of accused’s motions was not erroneous; it not appearing that the sheriff acted, or that his deputy corruptly summoned only those veniremen who were prejudiced against accused.
    ,[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 291-302, 306; Dec. Dig. § 67.].
    2. Criminal Law (§ 363) — Evidence — Admissibility.
    In a prosecution for assault with intent to murder, evidence by a physician, who reached the prosecuting witness some ten minutes after the assault, to the effect that the witness was conscious when he reached him, but was pale from the loss of blood, is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804 ; Dec. Dig. § 363.]
    3. Homicide (§ 174) — Evidence — Admissibility.
    In a prosecution for assault with intent to murder, evidence of the finding of automatic pistol shells and bullets at the place of the crime on the morning after the shooting is admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    4. Criminal Law (§ 339) — Evidence—Admissibility.
    In a prosecution for assault with intent to murder, it was not improper to permit a telephone operator to testify that she knew the voice of accused over the telephone, and heard her on the night of the assault and previous thereto, talking over the telephone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 767-772; Dec. Dig. § 339.]
    5. Criminal Law (§ 1210) — Convictions— Sentence.
    Where accused, who was convicted of felony, had been convicted about a year before for another offense and sentenced to two years’ confinement in the penitentiary, and the record did not show that she had been pardoned, the court, in accordance with Code Cr. Proc. 1911, art. 862, providing that, when an accused has been convicted in two or more cases and the punishment assessed in each case is confinement in the penitentiary, judgment and sentence shall be rendered in each case in the same manner as if there had been but one conviction, except that the punishment in the second and subsequent conviction shall be limited to begin at the expiration of the first sentence, properly sentenced accused to confinement in the penitentiary for a term of years to begin at the expiration of the first term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3298-3301, 3315; Dec. Dig. § 1210.]
    6. Criminal Law (§ 1099) — Appeal—Statement of Facts.
    A statement of -facts relating to evidence heard on motion for a new trial will not be considered if not filed in term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Grayson County; W. J. Mathis, Special Judge.
    Pearl Forester was convicted of assault with intent to murder, and she appeals.
    Affirmed.
    Sturgeon & Beauchamp, 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

      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 an assault with intent to murder, and her punishment fixed at the lowest prescribed by law — two years in the penitentiary.

The evidence is amply sufficient to sustain the verdict and judgment.

The assault was charged to have been committed on November 2, 1912, on Lee Simmons, who was a few days later elected sheriff of said county, and duly qualified and was such sheriff at the time of this trial. The case was tried and the verdict rendered on May 7, 1913. The court adjourned for the term ten days later. When the case was called for trial, and after the state had announced ready, but before appellant announced she made a motion to have the court appoint some citizens of the county, who had no special interest in the case, or the result thereof, to perform any and all the duties incumbent upon said sheriff and his deputies. The court overruled this motion and qualified appellant’s bill of exception to his action, by stating that she did not ask that the constable perform said duties, and that no injury was shown. Before the selection of the jury and after the court ordered talesmen summoned, she made another motion setting up that the jury commissioners had drawn 60 names from the jury wheel to be summoned as jurors for that week of the court; that the sheriff did not summon 15 of them, and only 22 of them appeared as jurors, and she therefore prayed the court to require the others so drawn from the jury wheel to be summoned. The court qualified her bill to the overruling of this motion by stating that all regular jurors were accounted for prior to the filing of said motion. This bill of exception thus qualified was filed on June 13th about four weeks after the court had adjourned for the term. At that time appellant took another bill to the court’s said qualification, claiming that nothing in the record showed they were accounted for and because in conflict with the court’s testimony on the subject, which was heard on her motion for new trial. This bill was not filed until June 13th. The court qualified this, and appellant accepted and filed it, stating the same thing, that at the time of appellant’s complaint all regular jurors had been accounted for. If we could consider this latter bill and the testimony purported to be heard, it would show, in effect, that the presiding judge, who tried this case, testified on said hearing of the motion for new trial that quite a number of the jurors who were drawn from the jury wheel were excused by him for-legal cause, and some on account of legal exemption, and that 22 of the regular jury were thus left, who appeared as jurors at the time. Appellant made another motion challenging the array of talesmen because they were selected and summoned by the sheriff and his deputies with a view to cause her to be convicted and they were prejudiced against her and friends and supporters of the sheriff. The court, in approving appellant’s bill to his overruling this motion, qualified it by stating that no proof was offered in support of said motion. We have stated all the above matters pertaining to the summoning of the jurors, and to the organization and selection thereof so as to discuss them together.

In the first place, the sheriff was not a party to the suit, although he was the person alleged to have been assaulted. The state of Texas was the party to the suit against appellant. The duties of a sheriff, prescribed by law, are such as must necessarily make him more or less active for the state in every felony case prosecuted in the courts, and in a great many of such cases he is an important witness and used as such. Of course, the fact that he is an important witness in any case does not disqualify him from acting in his official capacity in serving any and all process therein. There is nothing in this record anywhere which shows that said sheriff, Simmons, summoned those jurors, whether those drawn by the jury commissioners or the talesmen. Article 54, 0. O. P., is that, whenever a duty is imposed by this Code upon the sheriff, the same duty may lawfully be performed by his deputy. And the record nowhere shows or tends to show that he or any of his deputies in any way talked to any of the jurors who were summoned, or in any other way tried to influence them against appellant. There is with the record what is agreed to by all parties and approved by the court as the complete testimony by question and answer on their voir dire of every juryman, some 37, summoned in this cause. This was not filed until June 20, 1913, about five weeks after the court adjourned. If we could consider this, it would show that said sheriff personally did not summon a single one of the jurors, but that they were summoned by two of his deputies, and the testimony of each of these jurors would show .that neither the sheriff nor any of his deputies in any way whatever attempted to influence them against appellant, or said anything to them in any way about her, or in connection with this case, other than merely summoning them; and that said jurors were wholly disinterested, entirely without prejudice, and in every way fair and impartial.

Our statute expressly provides that no challenge to the array of jurors shall be allowed when the jurors have been selected by jury commissioners. C. O. P. art. 681. Article 680 provides that the defendant may' challenge the array for the following causes only: That the officer summoning the jury has acted corruptly, and has willfully summoned persons' upon the jury, known to be prejudiced against defendant with a view to cause him to be convicted. While appellant’s motion alleged this ground for challenge to the array of talesmen, she swore to it only “to the best of her belief and information.” As stated above, the court, in qualifying the bill, said she offered no proof in support of said motion, and, as stated above, if we could look to the whole record, it would show that her allegation was affirmatively untrue and without foundation.

It will be borne in mind that this was an ordinary felony case — not a case where a special venire was authorized or permitted by law. It is only in special venire cases that the law authorizes or permits an attachment or other process to be issued for special veniremen who do not appear. C. C. P. art. 673. And that even in such cases the cause shall not be unreasonably delayed on account of the absence of such veniremen. Article 696, O. O. P. This being an ordinary felony case, the statute expressly directs how the jury shall be formed in chap. 4, tit. 8, art. 702 et seq., and there is nothing in the record to show that this statute was not strictly complied with. So that in our opinion no error is shown by the court in overruling' appellant’s said motions.

There is testimony in the record to the effect that, on the evening of the night said Simmons was shot, appellant had a conversation with the constable at Sherman in which she asked him if “we went out of office when the sheriff did”; he told her they would; and she said she hated that. . Mr. McAfee was sheriff at that time. She said she always hated officers until she came here and liked these, and she hated to see them go out. She further asked him if he did not.wish somebody would kill Mr. Simmons before he went in office, and, when he told her he did not, she said she would. She said if she was a man she would kill anybody that interfered with her business that way. And at the time of this conversation she pulled out an automatic pistol from under her pillow and exhibited it to the witness. lie said it must have been a 32 or a 38; that about 10 o’clock that night appellant alone went into a drug store and ‘phoned to the transfer company to send her a conveyance to a certain place in Sherman. She then left the drug store, but soon after returned thereto and again called up the transfer company to know why the conveyance had not been sent to her. She at once left the drug store again. Very soon after this the transfer company did send a carriage to the place designated by her, and she got in the carriage and directed the driver to take her to Mr. Simmons’ residence, telling the driver to call Mr. Simmons out to the carriage, and, as an excuse why she did not go to the door of his residence and call him out herself, to tell him that she was crippled and could not, and to induce him to come to the carriage to see her. She was a stranger to this hackman. The hackman took her to Mr. Simmons’ residence, went in and knocked, and, upon Mr. Simmons coming to the door, delivered to him her said message. This was about 10:20 at night. Mr. Simmons and family had already gone to bed, but were not asleep. He at once partially dressed and went out on the edge of the sidewalk to the carriage. Either the door thereto was then open, or the glass of the door lowered. He stepped up to the carriage, and she asked, “Is this Mr. Simmons?” He replied, “Xes.” She thereupon immediately began shooting at him and shot from four to six times; three of the balls taking effect in the body of Mr. Simmons. He ran some 30 feet, got behind a tree; she got out of the carriage, walked up the street by the tree he was behind hunting for him. Before this he did not know who it was who called him out to the carriage, nor who was shooting him, but then recognized, and swore that it was, appellant. She did not discover him behind the tree, and, apparently not knowing what had become of him, she did not go back to the carriage, but left the scene and was soon after-wards caught and arrested. The evidence was amply sufficient to identify her as the person who shot said Simmons. Immediately after appellant left the scene, Simmons ran into his residence and had Dr. Netherly immediately called over the ’phone. He had also retired, but hastily partially dressed, jumped into his automobile, and went to Mr. Simmons’ residence, some seven or eight blocks, as rapidly as he could, reaching there within about ten minutes from the shooting. Dr. Netherly testified to the wounds on said Simmons and Simmons’ condition immediately after -he readied Mm.

Appellant did not testify. Her defense was alibi and denying ber identity as the party wbo shot Simmons.

Tbe court did not err in permitting Dr. Netberly to testify over appellant’s objections that Simmons was conscious when he reached him and examined Mm on this occasion, and that he was pale from the loss of blood, but calm and not specially excited at the time. There is nothing by appellant’s bill or otherwise to indicate that this testimony was not res gestee. It was not hearsay. Neither did the court err in permitting Mr. Goode to testify that early the next morning he examined the sidewalk and yard in front of Simmons’ residence and found a steel bullet on the sidewalk. Neither did the court err in permitting the witness Paul Smith to testify that he was present the next morning, examined the sidewalk and premises in front of Simmons’ residence, and saw Mr. Etchi-son find some empty 38 automatic pistol shells there. The fact that this steel pistol ball and these shells were not found till the next morning would go to the weight only and not to the admissibility of this evidence. Neither did the court err in permitting Miss Mattie Gamble, the young lady telephone operator, to testify that she knew the voice of the appellant over the/phone and heard her the night Simmons was shot, and previously thereto, talking over the ’phone.

When the court sentenced the appellant in this case, the state introduced before Mm a properly certified copy of a judgment of the district court of McLennan county, Tex., in a case against appellant, dated April 25,1912, sentencing her to confinement in the penitentiary for the term of two years from that date for theft of property of over the value of $50. At the same time, as shown by the bill, Mr. Lyle, her brother-in-law, testified, as stated by the court in his qualification of the bill, that she was the same person described in said judgment of conviction from McLennan county, and no proof was offered that she had been pardoned. The court thereupon sentenced her in this case, in accordance with the verdict of the jury, to two years’ confinement in the penitentiary; such confinement to begin when the sentence in the McLennan county case expired. This was strictly in conformity with the statute (article 862, G. G. P.), and the many decisions of this court thereunder (Culwell v. State, 157 S. W. 765, and authorities therein cited).

The only other matter necessary to mention is that by appellant’s motion for new trial he attacked the verdict of the jury on account of the improper conduct of the jury in considering their verdict on several grounds. The state contested this and filed an answer denying all of her allegations in that regard. The record shows, as stated above, that the verdict and judgment in this case were rendered on May 7,1913. The motion for new trial was heard and overruled on May 16th, at which time the court heard evidence on these contested issues, and then overruled the motion. The court did not adjourn until the next day, May 17th. There is with the record in this case what purports to be a statement of facts showing all this evidence. It was not filed in the court below until June 20, 1913, some 5 weeks after the court adjourned. Appellant’s attorneys have filed a motion and affidavits herein, seeking to have this court consider said purported statement of facts, but in no way shows any such state of facts as would authorize this court to consider it. The said purported statement of facts is on less than seven pages of typewritten matter. It could more properly have been contained on only three or four pages. There is no sufficient reason whatever shown or urged why this statement was not filed within term time. It could have been written out by the stenographer, or any one else, easily within an hour from the time appellant’s motion for new trial was overruled. The court did not adjourn until the next day.

It has been the uniform holding of this court in a great many cases that such statements must be filed during term time and that this court cannot consider them, unless so filed. It is needless to collate all of the cases. We cite only some of them: Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 977; Bailey v. State, 144 S. W. 1005. In the absence of a statement of facts, this court must conclude that appellant’s attack on the jury was not sustained.

The judgment is affirmed.