author: HARPER, J.

text:
    MYERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Juey (§ 103) — Juboes—Qualifications— Opinions.
    Code Cr. Proc. 1911, art. 692, subd. 13, provides for tbe determination of a juror’s bias, and that if it appears that an opinion has been formed from reading newspaper accounts, communications, statements, or reports, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict on the law_ and the evidence, the court, if satisfied that he is impartial and will render such verdict, may in its discretion admit him as competent to serve, but, if the court in its discretion is not satisfied that he is impartial, the juror shall be discharged. Held that, where jurors testified that though they had an opinion concerning defendant’s guilt formed from newspaper accounts of the occurrence, which in the absence of evidence would influence their action, they were nevertheless able to set aside such opinions and render a verdict entirely on the evidence, the court did not err in overruling a challenge for bias.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dec. Dig. § 103.]
    2. Homicide (§ 295) — Manslaughteb — In-steuctions.
    Where, in a prosecution for homicide, defendant testified that, after a difficulty with deceased in which he hit defendant twice, defendant went into a tent, procured a pistol, watched deceased for 20 minutes, then went out and shot him as he was approaching, the court properly charged that if deceased, with a pistol, about the time or just prior to the killing, struck defendant in the face or elsewhere or made any other assault or battery producing pain or bloodshed or if, in a serious personal conflict, great injury was inflicted on defendant by deceased by means of a weapon or other instrument of violence, then in either event that would constitute adequate cause was proper.
    [Ed. Note. — For other cases, see Homicide, Dent. Dig. §§ 606-609; Dee. Dig. § 295.]
    3. Homicide (§ 340) — Adequate Cause — Cooling Time.
    Where accused testified that after a difficulty in which he was struck and injured by deceased he went into a tent, got a pistol, and there waited for 20 minutes before he again approached deceased and shot him, an instruction on adequate cause omitting to submit the question of “cooling time” to the jury was more favorable to accused than he had a right to expect.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Appeal from District Court, Grayson County; W. J. Matbis, Special Judge.
    Henry Myers was convicted of murder in tbe second degree, and be appeals.
    Affirmed.
    C. Huggins and H. D. Cumby, botb of Sberman, -for appellant. C. E. Lane, Asst Atty. Gen., for tbe State.

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

   HARPER, J.

Appellant was prosecuted for murder and convicted of murder in tbe second degree and bis punishment assessed at 40 years’ confinement in tbe state penitentiary.

There are a number of grounds in tbe motion for new trial we cannot' «Insider, as no bills of exceptions were reserved, and tbe matters are not presented in a way we would be authorized to review them, such as the action of tbe court in overruling tbe application for a change of venue, overruling the application for a continuance, etc. In the absence of bills of exceptions, these matters are not reviewable by this court.

There are three bills of exception in tbe record, all of them relating to the action of the court in overruling appellant’s challenge for cause as to certain jurors, Messrs. Thompson, Owens, and Hardaway. Tbe bills show that Mr. Hardaway served on tbe jury, and as to this juror the bill shows: “J. A. Hardaway, on being examined as to bis qualification to sit as a juror, testified substantially as follows: T have no conscientious scruples against tbe infliction of death as a punishment for crime. I read an account of this killing. I don’t believe I have talked to anybody who claimed to know the facts of tbe case. Q. Have you formed an opinion as to tbe guilt or innocence of the defendant? A. From what I read I did. If taken as a juror I could set that opinion aside and try him on tbe evidence as introduced from tbe witness stand and certainly would do that. I would try him on tbe evidence introduced from tbe witness stand and under tbe charge as given me by tbe court. I don’t think that opinion would likely influence me in any way.’ Cross-examined tbe witness testified further as follows : ‘I was in Sherman’ at the time of tbe homicide. I did not see tbe body of tbe deceased. I don’t remember that I ever talked to my clerks in tbe store about it. I have talked to other parties about it. I don’t believe any one ever expressed their opinion in my presence as to tbe guilt or innocence of tbe defendant. I don’t know that Y ever expressed my opinion. I am not sure I have not, I don’t know whether I liave or not. Prom what I read of it of course I have an opinion. Q. Is that opinion adverse to defendant? A. Sure, yes. Q. Now it would take evidence to remove that opinion, wouldn’t it? A. Tes, from what I read of it; I don’t know anything else. I have heard it talked quite frequently. If I went into the jury box I would still have that opinion, and it would take evidence to remove that opinion. If there was no evidence introduced, that opinion would influence me. Q. In other words, you would be governed by the opinion you have unless evidence was introduced to remove it? A. Well, owing to the evidence, yes, the evidence might be altogether different from what I have heard. Tou understand I don’t know about that. Q. The proposition is this: Unless evidence was introduced to remove that opinion, that opinion would naturally influence you, wouldn’t it? A. Well, of course, yes, I would be governed by my opinion I have in regard to the matter.’ Challenged for cause. Examined again by state’s counsel, the juror testified further as follows: ‘Q. Tou stated to me you. would not consider that opinion that you have, as a juror, as a man, and what you read is on your mind; you have that opinion? A. Certainly. Q. As a juror serving in the case would you consider that opinion and allow that opinion to influence you after you had been sworn as a juror and the evidence was offered from the witness stand? A. I would be governed, of course, by the evidence, not by my opinion. I wouldn’t have that opinion at all; that is a matter I would discard and would not consider it as evidence in this case at all. It would not have any influence, according to the evidence. If you just read the indictment and offered no evidence at all, I would not convict the defendant. I would have to acquit him if I had no evidence. Q. Then that opinion you have would have no influence on you at all; you wouldn’t require any evidence to remove it and wouldn’t require any to add to it; you wouldn’t consider it as a juror? A. No. The Court: Tou just formed that opinion, did you, from reading about it in the papers? A. Tes. I think I read it in the Dallas News or the paper here, the Sherman Democrat. It did not contain what purported to be the evidence, just the circumstances, as well as I recollect. I did not read any evidence in it. I do not think my opinion is so definite and fixed as to influence me at all in making up my verdict.’ ”

Subdivision 13 of article 692, Code Cr. Proc. 1911, reads as follows: “That from hearsay or otherwise there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence him in his action in finding a verdict. Eor the purpose of ascertaining whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusions so established will influence his verdict. If he answers in the aflirmative, he shall be discharged; if he answers in the negative, he shall be further examined by the court, or under his direction, as to how his conclusion was formed, and the extent to which it will affect his action ; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and, if the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case; but, if the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.”

In subdivisions 3 and 4 of section 747 of White’s Ann. C. C. P. will be found a long list of cases construing this provision of the Code.

The other two bills are in substance the same as the bill above quoted, except it is not shown they served on the jury, and under all the decisions of this court the trial court did not err in overruling the challenged for cause; he evidently holding that they were impartial and could and would render a verdict in accordance with the law and the evidence, their opinions being but vague impressions formed from reading newspaper reports of the occurrence.

The statement of defendant, which was introduced in evidence, reads as follows: “My name is Henry Myers. Mr. Albert Brittain was at the camp January 4th before dinner and he and I had some trouble. He discharged me and told me to leave the camp. This was before dinner. After that I came to Sherman and was here in town awhile and left here about 4:30 o’clock and went back to the other camp where I was this morning. Mr. Brittain came to this camp this morning about 8 o’clock and I was going to Dike’s tent. I went in and Mr. Brittain came into the tent and said tó me, ‘Didn’t I tell you to leave this camp?’ I said, ‘Tes, sir;’ and I told him I was not going until I got my money. He said, ‘Tou are going right now;’ and said, ‘Go on out of this tent.’ I went out of the tent. He came out behind me. He said, ‘Get on up the road;’ and then he hit me twice and kicked me. Jim Carr, Monia Collins, and Joe Williams and Dike and a negro called Chuck, Jackson Booker, and I. C., a tall slim negro, were there and saw this. After this 1 went back to the tent where I was staying. This was Napolian Eisher’s tent. I went in and sat down on a box. I then got up and got the gun from under the bed. I sat on the box about five minutes. After I got the gun I came out of the tent and I saw Mr. Brittain coming toward me. I stepped about ten feet toward — • He got within about 60 yards of me and stopped and talked to Napolian Fisher, and I heard him tell Napolian he had better make me leave the camp; if he didn’t he was going to kill me. He then stepped toward me and looked me in the face. I then raised the gun and pointed it toward him. He said, ‘Henry, don’t.’ After he said this I shot him once. He fell to the ground. I put the gun back in the tent. I got my coat and went out into the road and walked and ran over to the other camp, which is south about 4 miles of this camp where the trouble was. I was in Si’s tent when I was arrested. I did not tell anybody about the shooting. I saw some white boys going toward town walking. After Mr. Brittain and I had our trouble when he hit me there at Dike’s tent he went over across the. creek about 100 yards and then he came back toward the tent where I was. I was watching him all the time and kept my eye on him until I shot him. The same parties were present when I shot him that were there when he hit me. It was not over 20 minutes after he' hit me until I shot him. I was still mad at him for hitting me, and I wouldn’t have shot him if he had not hit me. I am 22 years old.” This presents the matter in as favorable light to defendant as does any of the testimony adduced on the trial.

The court submitted murder in the first and second degrees in language not complained of in the motion for new trial. He also submitted manslaughter, defining the offense in the usual language, and instructed the jury: “You are instructed that, if deceased, with a pistol, did, about the time or just prior to the killing (if defendant killed him), strike defendant in the face or elsewhere, or made any other assault or battery on defendant producing pain or bloodshed, or if, in a serious personal conflict, great injury was inflicted upon defendant by deceased by means of a weapon or other instrument of violence, then, and in either event, this would be adequate cause.” We think this charge peculiarly applicable to the facts in this case as made by the testimony offered by appellant.

In instructing the jury that if deceased, with a pistol, did, about the time or just prior to the killing, strike defendant on the face or elsewhere, or make an assault on defendant, causing pain or bloodshed, this would be adequate cause, and in not instructing them on cooling time, was more favorable to defendant than he had a right to expect, and, if error, it was error of which he would' not be heard to complain. According to defendant’s testimony it was 20 minutes after he was assaulted by deceased before he shot him. And he further shows that during all that time he kept his eyes on deceased and shot him as soon as he came near enough to him to shoot, without a word being spoken. If a charge on cooling time had been given under the evidence in this case, the jury would certainly have found that sufficient time , had expired for his mind to cool, and in submitting manslaughter as he did, without charging on the issue of cooling time, the charge as given was more favorable to defendant than he had a right to expect or demand.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDBRGAST, J.

license: Public Domain

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Criminal Law (§ 1099) — Statement of Facts — Time op Filing.
    A statement of facts must be filed in the lower court within 90 days after adjournment, and hence a statement of facts not filed until September 17th comes too late to be considered on an appeal from a judgment convicting- accused of murder at a term which adjourned May 30th.
    [Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Camp County ; R. W. Simpson, Judge.
    Hamp Smith was convicted of murder in the second degree, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDBRGAST, J.

Under an indictment and trial for murder, appellant was convicted of murder in the second degree, and his punishment fixed at the lowest prescribed by law — five years’ confinement in the penitentiary.

The court at which he was tried adjourned May 30, 1913. The record proper was filed in this court on August 28, 1913, just within the 90 days within which the law requires such records to be filed. There is found with the file what purports to be a statement of facts, but it shows that it was not filed in the lower court at all and not filed in this until September 17, 1913. The law requires that statements of facts shall be filed in the lower court within 90 days from the adjournment of the court. Hence this purported statement we find with the files cannot be considered by us as a statement of facts in the case. There is no question raised or attempted to be raised that we can consider in the absence of a statement of facts.

The judgment is affirmed.


author: DAYIDSON, J.

text:
    BRADFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Criminal Law (§§ ' 1092, 1099*) — Appeal — Bill op Exception and Statement op Facts — Eppect op Delay in Filing.
    Where in a criminal case the bills of exception were filed 183 days after the adjournment of court, and the statement of facts 160 days after the adjournment, and no excuse for the delay was given, the matters contained in the bills and statement cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.*]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Spence Bradford was convicted of violating the Local Option Law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

This conviction was for violation of the local option law.

The bills of exception were filed something like 183 days after adjournment of court, and no reasons assigned why this delay. The statement of facts was filed about 150 days after the adjournment of court, and no reason given why the same was not filed in time. With the record in this condition, none of these matters can be entertained nor considered. In the absence of a statement of facts and bills of exception, there is nothing that this court can revise.

The judgment is affirmed.


text:
    RASBERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Weapons (§ 17) — 'Carrying a Pistol— Admission op Evidence.
    Where, in a prosecution for unlawfully carrying a pistol, accused claimed that he could not unbreaeh the pistol because the cylinder would not revolve, evidence was admissible that accused had the pistol in his hand and unbreech-ed and unloaded it.
    [Ed. fclote. — Eor other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    2. Criminal Law (§ 823) — Instructions—• Construing Together.
    An instruction that, if the jury found that accused unlawfully carried a pistol about his person as alleged, they should' find him guilty was not erroneous for not adding, “Unless they found him not guilty under some other paragraph of the charge,” where the succeeding paragraph charged he would not be guilty if the pistol was out of repair, etc.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    3. Weapons (§ 8) — 'Unlawful Carrying— Defense — Out oe Repair.
    It is unlawful to carry a pistol which is even broken or out of repair, if it can be still used for shooting, unless it is being carried to be repaired.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 7; Dec. Dig. § 8.]
    4. Criminal Law (§ 806) — Instructions— Repetition.
    An instruction that, while it was not an offense to carry a pistol to have it repaired, accused was not entitled to rely on that defense if he stopped • over on his way to the repair shop and engaged in business or pleasure was not erroneous, because the court did not .instruct in connection therewith that carrying the pistol would not be an offense if it could not be fired, having already so instructed in another paragraph.
    [Ed. Note. — For other cases, see Criminal Law,] Cent. Dig. §§ 1973, 1991; Dec. Dig. § 806.]
    5. Criminal Law (§ 829) — Requested Charges — Instructions Already Given.
    Special charges requested by accused were properly refused where they were fully covered by the main charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    6. Criminal Law (§ 1092) — Appeal — Approval oe Bill op Exceptions.
    An unapproved bill of exceptions to remarks by the county attorney cannot be considered.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2S03, 2829, 2834-2861, 2919;. Dec. Dig. § 1092.]
    7. Criminal Law (§ 1170) — Afeeal-Habmless Error — Exclusion oe Evidence.
    The exclusion of a question to a witness was not reversible error where it is not shown what the answer would have been.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Jim Rasberry was convicted of unlawfully carrying a pistol, and appealed.
    Affirmed.
    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 unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

The state’s evidence would show: That appellant went to a Christmas tree in the church at Whitehouse on the night of 24th of last December. That he and Charlie Carlton left there together, going towards the business portion of the town. A call of nature caused Carlton to step to one side, and while out there he heard two or three shots fired. He says he does not know whether it was a pistol shooting or large firecrackers. They then went on to the store, and appellant bought four 38 caliber pistol shells from Mr. Ham. When they came out of the store appellant had a pistol in his hand, and Mr. Ham asked him to let him see it. Ham says appellant handed it to him and he unbreeeh-ed it and it had three loaded and three unloaded shells in it. That he unloaded it and gave it back to appellant. Appellant lived some 3½ miles from Whitehouse, and then .started home; -Jim Hagan going a part of the way with him. Will Shahan testifies that as appellant and Hagan passed his house appellant had the pistol in his hand and fired it twice. Appellant admits he had the pistol on this occasion; says it was out of repair. That the cylinder would not revolve and the pistol would not shoot. That when he left home that night he brought the pistol with him to have it repaired. That he went direct to the blacksmith to have it repaired but the shop was closed, when he put the pistol in his pocket and carried it with him to the Christmas tree and had it at the store and other places the witnesses say, but denies that he shot it. He says he had some large firecrackers with him, and it was the firecrackers he shot. He is supported by other witnesses in his contention that his pistol was out of order on this occasion.

There are two bills of exception to the introduction of testimony. While the witness J. C. Ham was testifying he was asked, “How did you come to see the pistol?” and answered, “That appellant had it in his hand and was walking around with it.” He also stated he unbreeched it and unloaded it. Under the defense in this case that the cylinder would not revolve, and appellant’s testimony that he could not unbreech the pistol, the testimony was clearly admissible.

The court charged the jury:,

“(1) Now if you shall find from the evidence beyond a reasonable doubt that the defendant did in Smith county, Tex., on or about the 24th day of December, 1912, unlawfully carry on or about his person a pistol, then you will find him guilty and assess a proper penalty.
“(2) It is not an offense to carry a pistol that is broken or out of repair so that same cannot be fired. So if you shall find that the pistol was broken or out of repair, so that same could not be fired, then you will find him not guilty.
“(3) But, even though you may believe that the pistol was broken or out of repair, yet if you shall find from the evidence beyond a reasonable doubt that the pistol was in condition to be fired and could be fired, then you will find him guilty.
“(4) The defendant would have a right to carry a pistol from his home to a shop for repairs, provided in going to the shop and returning home he traveled a direct or reasonable and practicable route. But the defendant cannot claim the benefit of this exemption if he stops over in his journey at any place and engages in business or pleasure; and, if you believe from all the evidence in this case that the defendant carried the pistol to the shop for repairs and back home again by a reasonable and practicable route and had not digressed from his purpose by engaging in business or pleasure, you will find him not guilty.
“(5) But, if you .shall believe from all the evidence in this case that the defendant had digressed from his common purpose and intent and had gone from place to place in the town of Whitehouse and engaged in business or pleasure, then you will find him guilty.”

The first criticism of this charge is that in the first paragraph the court erred in not telling the jury in this paragraph they would find him guilty “unless they found him not guilty under some other paragraph of the charge.” It was not necessary to so instruct the jury in this paragraph when the court immediately followed it with a charge that he would not be guilty if the pistol was out of repair, etc.

The next criticism is that the court erred in not telling the jury that “it was no offense to carry a pistol that is broken or out of repair, without regard to whether it could be fired or not.” This is not the law; even though a pistol is broken or out of repair, if it can still be used as a weapon with which to shoot it is unlawful to carry same, unless it was being carried to be repaired, and this issue was presented in another paragraph.

The next criticism is that in the paragraph instructing the jury that it would be no offense to carry the pistol to have it repaired, and in instructing them, “but the defendant cannot claim the benefit of this exemption if he stops over on his journey and engages in business or pleasure,” etc., the court should have instructed them in this paragraph that if it “could not be fired” it would be -no offense. Having given this instruction, it was not necessary to repeat it. The court had instructed the jury that if it was broken and could not be fired to acquit, and it was only necessary to do so once. The question of whether or not the pistol could be fired was submitted to the jury, and the court in no part of the charge assumes that it could be fired.

The special charges requested by the appellant were fully covered by the court in his main charge, and it was not necessary to give them. In fact, a part of the court’s charge would read as if he copied therein a portion of the charges requested.

The court refused to approve the bill in regard to remarks of the county attorney; therefore it cannot be considered.

The question asked of Will Shahan “if he was not testifying for the state that he might collect his witness fees” was perhaps legitimate to affect his credit, but it is not shown what the answer of the witness would have been; consequently it presents no error.

We have carefully reviewed every matter raised by appellant in his bills of exception, and none of them present error.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    FISHER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Criminal Law (§ 1091) — Appeai^Bill or Exceptions — Contents.
    Defendant filed a bill of exceptions reciting, “Be it remembered,” etc., after which was incorporated a complete copy of the entire charge, followed by a recital that defendant excepted to the charge because it was on the weight of the evidence; that it was variant from the information, misstated the stock law (Pen. Code 19.11, art. 1241) under which he was prosecuted;' and that it permitted the fury to go back two years before the filing of the complaint. It then alleged that defendant requested the court to give the following charges, and purported to copy literally four special charges, and closed with the statement, “Which charges the court then and there refused to give and to which defendant in open court excepted.” Held, that the bill was too general to permit a review of any of the proceedings attempted to be excepted to.
    [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. § 10911
    2. Animals (§ 57) — Running at Large— Stock Law.
    In a prosecution for violating the stock law, it was proper for the court to permit the jury to go back two years prior to the filing of the complaint.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 114; Dec. Dig. § 57.]
    3. Criminal Law (§§ 1038, 1056) — Appeai>-Instructions — Evidence—Review.
    In order to raise any question in a misdemeanor case as to any claimed defect in the court’s charge, the defect must be specifically pointed out and excepted to • when the charge is given, and a bill of exceptions saved thereto, and in addition a special charge must be requested to correct the defect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 2668, 2670; Dec. Dig. §§ 1038, 1056.]
    4. Criminal Law (§§ 1056, 1091) — Appeal-Instructions — Evidence—Review.
    When a special charge is requested and refused in a misdemeanor case, it is essential to a review of the ruling that an exception be taken at the time, and the reasons for giving the request, and how and why it was necessary and proper, must be stated in the bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670, 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. §§ 1056,1091.]
    5.. Criminal Law (§ 1090) — Appeal—Objections to Charge — Misdemeanor Case-Motion por New Trial.
    An objection to the court’s charge in a misdemeanor case, made in a motion for new trial, cannot be considered on appeal but can only be raised by bill of exceptions.
    [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 Collin. County Court; H. L. Davis, Judge.
    R. C. Fisher was convicted of violating the stock law, and he appeals.
    Affirmed.
    W. R. Abernathy, of McKinney, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

By proper complaint and information appellant was tried and convicted for violating the stock law (article 1241, P. C. 1911), and his punishment fixed at a fine of $5.

The complaint and information allege in substance that heretofore a petition in conformity with law was presented to the commissioners’ court of Collin county, Tex., praying for an election to determine whether or not hogs, sheep, and goats should be permitted to run at large in said Collin county, and said court entered its order, ordering said election, and notice thereof was given as required by law, and said election was held in conformity with the laws of the state, and it was determined by the qualified voters at said election, who were then and there freeholders, that hogs, sheep, and goats should not be permitted to run at large in said county, and due and legal return of said election was made to the county judge of said county, and he opened, tabulated, and counted said returns as required by law and thereafter issued his proclamation to that effect, which said proclamation was duly posted at the courthouse door of said county; and after the expiration of 30 days from the issuance of said proclamation, and after the stock law had been adopted in said county, and anterior to the filing of this information, appellant did on June 15, 1911, then and there unlawfully and willfully turn out, and caused to be turned out, on lands not his own or under his control, and did then and there willfully allow to trespass upon the land of another, and did then and there willfully permit to run at large, certain stock of his own and under his control, to wit, hogs. The complaint and information are clearly full and sufficient, and the court correctly overruled appellant’s motion to quash them.

The testimony is amply sufficient to sustain the conviction. There is but one bill of exceptions in the record, which is an omnibus bill, and after the style and number of the cause it is: “Be it remembered that on the trial of the above-entitled cause the court charged the jury as follows:” Then follows a complete copy of the entire charge of the court, making about two typewritten pages. Then it says the defendant excepted to said charge because the same is upon the weight of the evidence and is variant from the information and misstates the stock law and permitted the jury to go back two years before the filing of the complaint. Then further says that the defendant thereupon requested the court to give the following charges and purports to copy literally four special charges. The bill then winds up, “Which charges the court then and there refused to give and to which defendant in open court excepted.” Clearly this bill is too general, under all the decisions, to require this court to pass upon any of the proceedings attempted to be excepted to. That the charge of the court, as stated in the bill, is upon the weight of the evidence and is variant from the information and misstates the stock law points out no specific error in any of these particulars.

As to the other objection to the court’s charge that it permitted the jury to go back two years before tbe filing of the complaint, it is clearly the law to do so. As to the court’s refusal to give the four special charges, no reason whatever is given in the bill or by either of the charges themselves why they should be given.

It is the settled law of this state that, in order to raise any question in a misdemeanor case as to any claimed defect in the court’s charge, such claimed defect must be specially pointed out and excepted to at the time the charge is given, and a bill of exceptions saved thereto, and then in addition special charges must be requested to correct such claimed defective charge by the court This has been so uniformly held, and in many recent cases many of the authorities collated to this effect, we deem it unnecessary to again cite the cases.

It is also the settled law of this state, and has been many times decided recently and the cases cited, that, when a special charge is requested and refused by the court, not only an exception in misdemeanor cases must be taken to the court’s refusal to give it at the time, but the reasons for giving it and how and why it is necessary and proper should be stated in the bill. This was in no way done or attempted to be done by this bill of exceptions.

It is also the well-settled law of this state that a complaint of the court’s charge in motion for a new trial in misdemeanor cases cannot be considered; that only a question of that kind can be raised by bill of exceptions. There is nothing further in this case requiring discussion.

The judgment will be affirmed. '


author: HARPER, X

text:
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Indictment and Information (§ 159)— Designation oe Accused — Name—Change.
    Where, after an indictment was read to the jury, defendant on his own motion suggested that he was not properly designated therein, the court was authorized by Code Cr. Proc. 1911, art. 560, to direct an amendment of the indictment and subsequent proceedings so as to designate defendant by his right name.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    2. Intoxicating Liquoes (§ 236) — Evidence —Place of Offense.
    Evidence that prosecutrix procured from accused a bottle of distilled alcohol on March 2oth, at D., sufficiently showed the time and place of the offense, if one was committed.
    [Ed. Note. — Eor other cases, see Intoxicating^ ' Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3. Criminal Law (§ 935) — Proof of Venue-Presumptions — Statutes. .
    Under Code Cr. Proc. 1895, aft. 904, as amended in 1897 (Laws 25th Leg. c. 12), providing that in all cases on appeal the court will presume .that .the venue was proven in the trial court unless the question was made an issue at the trial and it affirmatively appears by bill of exceptions properly signed and allowed by the judge, accused cannot object for.the first time on motion for new trial to the state’s failure to prove the venue.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2193, 2194, 2297, 2298, 3068; Dec. Dig. § 935.]
    4. Intoxicating Liquors (§ 239) — Wrongful Sale — Variance.
    Where, in a prosecution for illegal sale of liquor, the indictment was returned March 31, 1913, and the evidence showed that the sale in question took place, if at all, on March 25, 1913, it was not error for the court to charge that, if the jury believed beyond a reasonable doubt that defendant in A. county, Tex., at any time during the month of March, and before the 31st day thereof, did sell intoxicating liquors, etc., they should find him guilty.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    5. Intoxicating Liquors (§ 236) — Wrongful Sale — Local Option Election — Petition — Proof—Waiver.
    Under Rev. Civ. St. 1911, art. 5728, providing that, if a local option election is not contested within 30 days after the result has been declared, the court may conclusively presume that such election is valid, the state, in a prosecution for selling intoxicating liquors in prohibited territory under such circumstances, is not required to prove that a petition for a local option election was signed by the required number of qualified voters.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    6. Criminal Law (§ 1064) — Appeal—Exceptions — Presentation in Trial Court.
    All matters of exception urged on appeal must have been first submitted to the trial court in a motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    7. Witnesses (§ 337) — Credibility of Accused-Indictment for Prior Offense.
    Where accused testified as a witness in his own behalf, evidence that he had been indicted for arson was admissible to affect his credibility. [Ed. Note. — For other cases, see Witnesses, ) Cent. Dig. §§ 1113, 1129-1132,1140-1142, 1146-1148; Dec. Dig. § 337.]
    8. Criminal Law (§ 404) — Evidence — Liq VOS.

    In a prosecution for sale of liquors in pro- ' hibition territory, evidence held to authorize the admission in evidence of a bottle of diluted alcohol claimed to be the liquor purchased by pros-ecutrix from accused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    9. Criminal Law (§ 861) — Exhibits—Intoxicating Liquors.
    Where accused was charged with illegally selling certain alcohol to prosecutrix in prohibition territory, and the bottle containing the alcohol was admitted in evidence, it was proper for the court to permit it to go to the jury for them to “smell its contents”; it not appearing that they drank any of it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2061; Dec. Dig. § 861.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Shelly Thompson w;as convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Átty. Gen., for the State.

      Fov other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Seri es & Rep'r Indexes

   HARPER, X

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

The first objection raised in the motion for a new trial in that the indictment was returned against Shelly Thomas, whereas the appellant’s name is Shelly Thompson, not Thomas. The following order appears in the record: “After the indictment had been read to the jury, the defendant on his own motion suggested that his name was Shelly Thompson and not Thomas, as stated in the indictment. It is therefore ordered by the court that the correction be made and that the indictment shall read Shelly Thompson, and it was so done.’’ This proceeding was authorized by article 560 of the Code of Criminal Procedure, and the court did not err in ordering the name changed in the indictment in accordance with the suggestion of appellant.

The proof in this case shows that the main prosecuting witness procured a bottle of distilled alcohol from appellant on the 25th day of March, at Diboll; consequently the objection in the motion that the “evidence failed to show the time and place of the offense, if an offense was committed,” is not well taken. If it is intended by this ground to raise the question that the evidence does not show that Diboll is in Angelina county, this comes too late in a motion for new trial. It was formerly held that lack of proof of venue could be raised in the motion for a new trial, and for this reason article 904 of the Code of Criminal Procedure was amended in 1897 (Gen. Laws 1897, c. 12) to read that in all cases the court on appeal will presume that the venue was proven in the court below, unless that question was made an issue in the trial of the case and it affirmatively appears by a bill of exceptions properly signed and allowed by the judge. This question, after the amendment was adopted by the Legislature, was fully passed on in McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93.

There is no merit in the contention that a variance is presented because the evidence shows that the sale, if a sale, took plage on March 25th, while the court in his charge instructed the jury that if they believed beyond a reasonable doubt that defendant in Angelina county, Tex., at any time during the month of March, and before the 31st day of March, 1913, did sell intoxicating liquors, etc., they would find appellant guilty. The indictment was returned on the 31st day of March, and it was proper for the court to instruct the jury that the offense must have been committed before that date. |

The next objection is that the indictment, charges that the order published was by order of the commissioners’ court. If this objection was supported by the allegations in the indictment, under some of the decisions of this court, the objection would be meritorious. But by no strained construction could’ such a meaning be given to the words contained in the indictment. The indictment alleges that the newspaper in which the order-was published was selected by the county-judge, and publication of same made.

The objection that “the defendant cannot waive the right but the state must prove-that a petition was signed by the required number of qualified voters ordering the election to determine whether the sale of intoxicating liquors should be prohibited” is-without merit. Article 5728, Revised Statutes, provides that, if the election is not contested within 30 days after the result has been declared, the court shall conclusively presume that the election is valid and binding.

These are all the grounds contained in the motion for a new trial, but, some 30 days after the adjournment of court, four bills of exception were approved by the court and filed by appellant, presenting other questions. If appellant relied on them to secure a new trial, to have been fair to the trial court he should have presented the questions thus raised in the motion for a new trial. The court, in acting on his application for a new trial, of course only ruled on such matters as were presented in the motion for new trial, and the law contemplates that all matters which are relied on to present error shall be presented first to the trial court that it -may correct its own errors, if errors there be.

However, we have read and considered the four, bills. The first complains that the court permitted the state to show that appellant had been indicted, charged with arson. Under all of our decisions this was admissible as affecting his credit as a witness. The next complains that the court erred in permitting to be introduced the bottle of diluted alcohol secured by the prosecuting witness from appellant. She testified that immediately upon its purchase she delivered it to Mr. Tucker. Mr. Tucker testified he delivered it to the constable, Mr. Lockhart. Mr. Lockhart said he placed it in a safe, and on the day of the trial he went to his safe and got it from the place where he placed it. Even appellant, upon being shown the bottle, testified: “That looks like the same bottle Susie got from me, and it looks like the same substance that was in it when I let her have it.” Under such testimony there-was no error in admitting the bottle of liquor in evidence. It is also complained that, the bottle of liquor was handled by- the jury,, and they “smelled its contents.” There is no evidence that they drank any of it, and. tlie fact they had it in their hands and smelled its contents would present no error.

The fact that the prosecuting witness was named at the date of the alleged purchase Susie Gooden, that between the time she made the purchase and the time of the trial she had married a man named Lewis, and was called Susie Lewis, would present no variance. The indictment charged a sale to Susie Gooden, the name she bore at the time she says she made the purchase.

The judgment is affirmed.


text:
    BLACKBURN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Seduction (§ 45) — Prosecution — Sufficiency oe Evidence.
    Evidence, in a prosecution for Seduction under promise of marriage, held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    2. Criminal Law (§ 309) — Evidence — Presumptions — Chastity.
    The law presumes the chastity of every woman, and especially would this be true of a young girl of 17.-
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 738; Dec. Dig. § 309.]
    3. Seduction (§ 50) — Pbosecution—Instruc-tions — Chastity.
    In a prosecution for seduction under promise of marriage, where defendant claimed that he had heard of prosecutrix’s intimacy with others but did not produce any witness who had told him of any such intimacy, instructions affirmatively requiring the jury to believe beyond a reasonable doubt that prosecutrix had submitted herself to defendant solely by reason of his promise to marry her, and that if she prior to that time had been intimate with any other person, or if defendant had ever been intimate with her prior to his promise of marriage, to find him not guilty, sufficiently submitted the question of the previous, chastity of the prosecu-trix.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    4. Criminal Law (§ 800) — Instructions — Definition oe Offense.
    Under Pen. Code 1911, art. 10, declaring that words which 'have their meaning specially defined shall be understood in that sense, though contrary to their usual meaning, and that all words specially used in the Code, except those defined, shall be taken in the sense in which they are commonly understood, and Code Cr. Proc. 1911, arts. 58, 59, providing that words, unless specially excepted, have the meaning given to them in the Penal Code, it is unnecessary to define words in the Code which are ordinary English words generally understood.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    5. Criminal Law (§ 1186) — Appeal—Harmless Error — Instructions.
    Under Code Cr. Proc. 1911, art. 743, providing that judgment shall not be reversed unless the error was calculated to injure the rights of defendant, it was not reversible error in a prosecution for seduction under promise of marriage, where there was evidence of the seduction and of the promise of marriage, to define the offense strictly in accordance with the statute without specifically defining it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    6. Seduction (§ 50) — Prosecution—Instructions — Definition of Offense.
    In a prosecution for seduction under promise of marriage, an instruction, strictly in accordance with the statute, that, if any person by a promise of marriage shall seduce any unmarried female under the age of 25 years, he is guilty of seduction, and literally quoting Pen. Code 1911, art. 1448, declaring that the term “seduction'’ is used in the sense in which it is commonly understood, was sufficient even if it were necessary to define the offense to the jury; it being the rule that, where the charge taken as a whole substantially defines the offense and whatever words therein are necessary to be defined, that is all that is required.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.

    For other definitions, see Words and Phrases, vol. 7, pp. 6389-6393.]
    7. Criminal Law (§ 954) — Appeal — Sufficiency of Grounds. •
    Complaint, in a motion for a new trial, that the court erred in not giving defendant’s charge, without Showing in any way whereby it should be given, was too general to point out any error or require consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363 — 2367; Dee. Dig. § 954.]
    8. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    In a prosecution for seduction under promise of marriage, a charge that the fact that the prosecuting witness had frequently had sexual intercourse with appellant after the first act, and her allowance of embraces, etc., from one to Whom she had formerly been engaged, while she was between 13 and 15 years old, would show that she was unchaste, would have invaded the province of the jury as being a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Oscar Blackburn was convicted of seduction, and he appeals.
    Affirmed.
    Owsley & Owsley, of Denton, for appellant. J. W. Sullivan, F. F. Hill, H. R. Wilson, Co. Atty., and F. M. Bottorif, Asst. Co. Atty., all of Denton, and 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, P. J.

Appellant was convicted of seduction and his punishment fixed at five years’ confinement in the penitentiary.

The testimony of Miss Nora Crites, the alleged seduced girl, and the appellant, who is alleged to have seduced her, both without question shows that they were raised and lived in the same community and knew one another practically all of their lives; that he was about a year and a half older than she; that about March 1, 1910, when she was about 16 years of age, be became her suitor, and that a few months thereafter he made love to her, professing to her his love and she stating that she loved him, and thereupon they became engaged to be married; that he devoted his attention to her pretty constantly from that time until February, 1912, intending, as he himself testified, all this time to keep his engagement with her and marry her; that, soon after they first became engaged in 1910, by mutual consent they fixed about Christmas, 1910, to get married, and she prepared her wedding garments, but from some cause he, with her consent, postponed the wedding till July, 1.911, and thereafter from time to time he postponed it until February, 1912, when he made up his mind that he would not marry her. From the time he first became engaged to her, as he claimed, until a week or two before he had the first act of intercourse with her, he had made no indecent proposal to her to that effect, and neither of them had conducted themselves towards the other to indicate any such thing. She testified that about three months before the first act of intercourse he began after her to have sexual intercourse with him, just talking to her all the time about it and worrying her to death and that he was going to quit coming if she did not yield to him; that he was worrying her all the time about it for this three months before he succeeded in inducing her to yield to him; that she loved him, just worshipped him, all this time; and that she had continuously loved him all the time and even up to the time of the trial in February, 1913. She further testified that the first act of intercourse he had with her was about April 25, 1911 (she could not fix the exact date), and that he, at that time, again promised to marry her, and that she yielded to him solely because of his then and oft-repeated promise and engagement to marry her. It seems that he kept a memorandum of the exact date on which the first act of intercourse occurred, testifying that it occurred on April 12, 1911. He denied that at that particular time he promised to marry her, but he says that he had been engaged to her for about one year at that time, all the time intending to marry her, and that he knows that she at the time of this first act of intercourse relied upon his promise to marry her. She further testified that she had a baby by appellant, which was about 13 months old at the time of this trial. She further testified positively that no other man Other than appellant had ever at any time had sexual intercourse with her, and positively that he was the father of this child of hers, and that he had never had intercourse "with her until after they had been engaged to be married nearly a year, and, as stated above, she yielded to him solely on account of his promise to marry her.

Appellant himself testified that, a long time after he became engaged to marry the girl and that he loved her and intended to marry her, a certain man told him that he (that man) had had intercours'e with the girl. He said at the time he was engaged to marry the girl and intended to do so and did not resent what this man told him, and, while it had some effect on him, it did not change his intent then to marry her. Although this case pended for about a year after he was indicted, he never produced this witness whom he claimed told him this, nor did he give any satisfactory account of why he did not produce this witness on the trial. He also testified that long after his engagement to this girl, and after he had this first act of intercourse with her, he was told by his uncle that one Lee Martin had told his uncle, and that his uncle told him, that said Martin claimed to have had sexual intercourse with this girl. Martin denied all this on the stand and swore positively that he had never at any time had sexual intercourse with this girl. The record shows further that the appellant never abandoned his intention to marry this girl until her father had him arrested in February, 1912, for the offense of fornication with this girl; that that was the “straw that broke the camel’s back” and made him abandon his intention to marry this girl. When pressed in cross-examination on the stand, he did not deny the paternity of this girl’s child, nor would he go to the extent of saying_ that he believed that it was not his child. The utmost that he would say was that he did not know. To take his testimony, alone, we think it is amply sufficient to sustain the verdict of his guilt. But, when backed up by all the other testimony in the record, it seems there could be no reasonable doubt by any one of his guilt.

The main contention of appellant is that the court did not specifically require the jury to believe that the girl was chaste before they could find him guilty. “The law presumes the chastity of every woman. Lagrone v. State, 12 Tex. App. 426.” Especially would this be true of a young girl of 17, such as this girl is shown to have been. Substantially all of the intimation in this record that in any way tends to show that this girl was not a chaste girl, at the time appellant seduced her, was appellant’s suspicion and claimed information from third parties,, whom he did not produce to substantiate what he claimed they told him, and the further fact that, while this young girl was from 13 to 15 years of age, she and one Lee Martin were devoted lovers, each loving the other and professing their love for one another, and that as such lovers she permitted him to hug and kiss her and perhaps on some occasions sat in his lap. Both she and Martin in their testimony deny any improper or undue familiarity between them and positively deny any act of intercourse at any time. On this point the evidence further discloses that she herself broke off with Lee Martin because he began drinking and until that they both contemplated and Intended marriage.

We think the court sufficiently submitted this question to the jury both in affirmatively requiring the jury to believe beyond a reasonable doubt that appellant had carnal knowledge of this girl and at the time she consented thereto solely by reason and because of his promise to marry her. Then, in again telling the jury pointedly that if they did not believe from the evidence beyond a ¡reasonable doubt that she’submitted to this act of intercourse by reason and because of and in consideration of his promise to marry her, to find him not guilty. Again he pointedly and clearly told the jury that if this girl, prior to the time appellant had this first act of intercourse with her, had ever at any time had intercourse with any other person or persons, to acquit him, and that if he had' ever had intercourse with her prior to his promise and engagement to marry her, to find him not guilty. So that substantially from all this did the court require the jury to believe that she was chaste before they could convict appellant, and that if she was not, to acquit him.

Another complaint of appellant is that the court did not specifically define the word “seduction” and that that resulted in material injury to him. The court, in his charge, first told the jury, strictly in accordance with the statute, if any person by a promise of marriage shall seduce an unmarried female under the age of 25 years, and shall have carnal knowledge of such female, he is guilty of seduction. Then followed by quoting literally the next article of the statute (article 1448): “The term ‘seduction’ is used in the sense in which it is commonly understood.” Our statute (article 10, Pen. Code) expressly provides that words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term, or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and such matter relative to which they are employed. Articles 58 and 59, Com. Cr. Proc., prescribe, “All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law;” and “the words and terms made use of in this Code, unless herein specially excepted, have the meaning which is given to them in the Penal Code, and are to be construed and interpreted as therein declared.” This court, in many decisions too numerous to cite, has held that it is unnecessary and not error not to define words in the Codes which are ordinary English words and which are commonly and ordinarily understood by people generally. See Humphreys v. State, 34 Tex. Cr. R. 434, 30 S. W. 1066; Douglass v. State, 33 S. W. 228; Austin v. State, 51 Tex. Cr. R. 328, 101 S. W. 1162; Thomas v. State, 55 Tex. Cr. R. 295, 116 S. W. 600; Barber v. State, 142 S. W. 577; Harris v. State, 144 S. W. 232; Moore v. State, 144 S. W. 598; Clay v. State, 146 S. W. 166. It is unnecessary to cite the many other decisions. Possibly, notwithstanding these statutes, there might arise a ease, as this court has in some cases held, that it would be necessary to define to the jury the word “seduce” or “seduction” under the offense of seduction. In our opinion this ease and the evidence in it is not such a case, and under article 743, Code Cr. Proc., no error is presented which should require the reversal of this case, even if appellant’s contention that the word is not specifically defined be correct. But, under the terms of the statute and the charge of the court above stated, we think that, even if it were necessary to define said word to the jury, it has substantially been so defined sufficiently. It is the settled law of this state that where the charge taken as a whole substantially defines the offense and whatever words therein are necessary to be defined is all that is required.

Appellant has several grounds in his motion for new trial, such as the court erred in not giving his charge number so and so, without showing in any way thereby why it should be given, and other like grounds which are entirely too general to point out any error or authorize or require this court to consider them, as has many times and uniformly been held by this court. It is unnecessary to cite the cases.

It would have been on the weight of the evidence for the court to have told the jury in his charge that the fact that the prosecuting witness had frequently had sexual intercourse with appellant after the first act, or her said conduct with said Martin while they were lovers, and she was so young, would show that she was unchaste, and no such charge should have been given. These matters were all before the jury for their consideration on the whole case. There is no other question presented showing any error or that requires any discussion.

The judgment will be affirmed.


text:
    GRIMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Witnesses (§ 379) — Conteadiction—Im-peachment — Inconsistent Statements.
    Where, in a prosecution for assault on defendant’s stepdaughter with intent to rape, his wife testified that she was not informed of the assault by prosecutrix on the day of its alleged occurrence, and that at no time that evening did prosecutrix seek her, nor did she ask prosecutrix if defendant had ruined her, and on cross-examination denied that on the Sunday following she'had told S. that prosecutrix came to her on the night of the alleged assault and told her of it, the court properly permitted S. to testify that prosecutrix's mother had so stated to her; the court having charged that the jury could not consider such evidence against accused, but only to aid them in passing on the credibility of the mother.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    2. Criminal Law (§ 730) — Trial—Prosecuting Attorney — Misconduct.
    In a prosecution for alleged assault on defendant’s stepdaughter, with intent to rape, the mother having testified for accused that her other daughters had left home and were cold and indifferent to her, it was not prejudicial misconduct for the prosecuting attorney to ask her the reason why they had left home, creating an inference that accused had assaulted them also, where the court promptly sustained an objection to the question, did not permit the witness to answer, and instructed the prosecuting attorney not to ask the question again.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    3. Indictment and Information (§ 189)— Conviction of Offense Charged — Election — Evidence.
    Where the state elected to prosecute accused for assault to rape, he was not entitled to a peremptory instruction because the testimony of prosecutrix showed rape instead of assault to rape.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 582-595; Dec. Dig. § 189.]
    4. Criminal Law (§ 814) — Trial—Request to Charge — Applicability to Evidence.
    Where, in a prosecution for assault on defendant’s stepdaughter, the evidence showed that if accused assaulted her at all it was with intent to rape, a request to charge that, if accused penetrated the rectum of prosecutrix, the jury should acquit, was properly refused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Criminal Law (§ 1090) — Misconduct of Attorney — Bill of Exceptions.
    Misconduct of the county attorney, in that he used certain language in regard to which charges were requested and refused, cannot be reviewed, where there is no bill of exceptions verifying the fact that the county attorney used the language objected to.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    George Grimes was convicted of assault, and he appeals.
    Affirmed.
    Pierson, House & Pierson and Albert Walker, all 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

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

   HARPER, J.

This is the second appeal in this case; the opinion on the former appeal being reported in 141 S. W. 261. Therefore we do not deem it necessary to detail the facts again. On this trial appellant was again convicted of assault with intent to rape his stepdaughter, and he again appeals-the case to this court.

To make our ruling on the first bill of exceptions plain it is necessary to state a portion of the testimony of appellant’s wife; appellant having offered her as a witness. On direct examination at the instance of appellant, Mrs. George Grimes testified: “The defendant, George Grimes, did not any time during that evening after I got back from Grand Prairie make any attack of any sort or kind on Bessie Smith; he did not lay his hands on her. I did not at any time after I returned, or before I went away, hear her holler or scream. The defendant did not at any time on that evening after I had gotten back from Grand Prairie send me out behind the barn, or tell me to go out there and stay until he called for me. At no time that evening did Bessie come out and find me 'behind the barn and I ash her if George had ruined her.” She, having thus testified at the instance of appellant, she would be subject to impeachment on these matters the same as any other witness, and on cross-examination she was asked if the Sunday following the alleged assault, on the way to Grand Prairie, she did not tell Mrs. Ollie Smith that Bessie had come out to her behind the bam and told her that appellant had tried to ruin her. She denied making this statement to Mrs. Ollie Smith, and, as it was about a matter she had testified to on her direct examination, there was no error in the court permitting Mrs. Ollie Smith to testify that Mrs. Grimes did tell her that the prose-cutrix, Bessie, had come out to her behind the barn immediately after the assault, and told her that appellant had tried to ruin her. The court in his charge instructed the jury they could not consider this as any evidence against the defendant, but could only consider it for the purpose of aiding the jurors in passing on the credibility of the witness Mrs. Grimes, if considered at all.

On the other appeal of this ease we held as inadmissible that appellant had assaulted his other stepdaughters, and for this-reason they had left him. It is shown by a bill that, when Bessie Smith was being interrogated, she was asked why her sisters-left home. The court promptly sustained objection to this question. In the light of the ruling on the former appeal in this case,, this was an improper question. It is also shown that the prosecuting officer asked some other witnesses questions calculated to elicit the same information, objection to which-was sustained by the court. In approving the bill the court states: “This bill of exception No. 3 in this cause is approved with this explanation: It will be noticed that when Bessie Smith and her sister Lettie-Smith were on the stand, and the question, was asked why they were not living at home, the court promptly and immediately sustained an objection to the county attorney ashing the question. The objection to the question propounded to Mrs. George Grimes, wife of the defendant, was just as promptly sustained. As soon as it was asked, Mr. Walker said, ‘We object.’ And then it was that the court told the county attorney not to ask the question, and instructed him when the defendant’s attorney ended his exception, ‘You are instructed not to ask the question again.’ The question to Mrs. Grimes came up under the following circumstances, as the record will show: Mrs. Grimes had stated in her testimony that none of her children lived with her; that she didn’t know whether they were dead or alive, and had stated that her daughters were cold and indifferent toward her; and that one of them just simply gave her a- finger in a limp way. Mr. McCutch-eon, the county attorney, prior to the question objected to by the defendant, asked her if she had made these statements before the jury, and she said that she had; whereupon he asked her: ‘Don’t you know the reason for that? Don’t you know that George Grimes tried to do the same thing to all of them that he did to this girl?’ It was under these circumstances that this question was asked, and the objection immediately sustained, and the county attorney instructed not to ask the question again.” The question to Mrs. George Grimes, considering her testimony about the conduct of her children, in a measure excuses the county attorney’s asking her the question he did. As no witness was permitted to state to the jury that appellant had ever been guilty of any improper conduct towards the other girls, while the questions were highly improper, as the court in the presence of the jury reprimanded the county attorney, it is not such a matter as will necessitate a reversal of the case. In none of the cases cited by appellant did the court in the presence of the jury reprimand the attorney and promptly sustain the objection as the court did in this case.

The peremptory instruction requested by appellant should not have been given. If the testimony of Bessie Smith should be held to show rape, instead of assault to rape, which is exceedingly doubtful, yet, as the state elected to prosecute him for assault to rape, appellant would not be heard to complain.

As to the special charge requesting the court to charge the jury that if appellant penetrated the rectum of Bessie Smith to acquit, the court did not err in refusing same. The evidence and all the evidence, if it shows any offense, shows an assault with the intent to have carnal intercourse with the girl.

There is no bill of exception verifying the fact that the county attorney used the language in regard to which special charges Nos. 4 and 5 were requested. The court refused the charges, and, in the absence of any showing that the language was used, We must presume the court ruled correctly.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    PIGG v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Perjury (§ 19) — Indictment—Defects. .
    Where an indictment, seeking to charge accused with perjury in that he testified that he was not asked certain questions before a grand jury, did not allege that accused was a witness or how he got before the grand jury, and if he was a witness that he was ever sworn by the jury before being asked the questions, it was fatally defective.
    [Ed. Note. — Eor other cases, see Perjury, Cent, Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19.]
    2. Perjury (§ 25) — Indictment—Materiad-XTY.
    Where an indictment for perjury alleged that accused testified that he had not been asked certain questions before a grand jury but the questions themselves did not show that they were material to any examination that the grand jury had jurisdiction to make, and there was no allegation of facts showing that the questions were material nor that they were falsely answered, the indictment was fatally defective. •
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    3. Indictment and Ineoemation (§ 6) — Finding — Jurisdiction—“Grand Jury.”
    A grand jury is an inquisitorial body pertaining alone to offenses committed within the county or that could be prosecuted in the county and has no power to inquire concerning offenses committed beyond the county’s boundaries.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 29-33; Dec. Dig. § 6.

    For other definitions, see Words and Phrases, vol. 4, pp. 3148, 3149.)
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    M. C. Pigg was convicted of perjury, and he appeals.
    Reversed and dismissed.
    S. R. Allen and Eidson & Eidson, all of Hamilton, 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

   DAVIDSON, J.

The perjury alleged in the indictment is said to have occurred before the district court on the trial of appellant under a charge of perjury.

It is alleged in the indictment: “It then and there became and was a material question whether the said M. C. Pigg had, when he (the said M. C. Pigg) was a witness before the grand jury of the said Hamilton county, Tex., at its August term, 1912, and of which grand jury one J. W. Smith was foreman, been questioned and interrogated by the said grand jury as aforesaid as to whether he (the said M. C. Pigg) knew of any betting on any baseball game, or whether he had held stakes on any baseball game played in Hamilton county, Tex., and especially as to whether he (the said M. O. Pigg) had been interrogated and questioned by said grand jury as aforesaid with reference to whether he (the said M. O'. Pigg) knew of any betting on a game played at Evant between the Hamilton team and Star team and whether he (the said M. 0. Pigg) had held any stakes on a game of baseball played at Evant between the Hamilton and Star teams, and the said M. 0. Pigg, being so sworn as aforesaid, then and there on the trial of said issue upon his oath as aforesaid did falsely, willfully, and deliberately before the said Hon. J. H. Arnold, judge as aforesaid, and before the jurors so sworn as aforesaid, depose, state, and testify among other things in substance and to the effect following: T was not asked if I knew of any betting (meaning X was not asked when I was before the grand jury of Hamilton county, Tex., at its August term, 1912, of which J. W. Smith was foreman as aforesaid) between anybody in a game of baseball played at Evant between the Hamilton and Star teams. I was not asked (meaning that he [the said M. 0. Pigg] was not asked or questioned by said grand jury as aforesaid at its August term, 1912, aforesaid) the' question whether or not I knew of any betting on the game of ball played at Evant between the Star and Hamilton teams, or held any stakes put up on that game’ — which said statements so made by the said M. 0. Pigg were then and there material to the issue in said cause, whereas in truth and in fact the said M. O. Pigg was questioned and interrogated and asked by the said grand jury of Hamilton county, Tex., at its August term, 1912, as aforesaid, of which grand jury J. W. Smith was' foreman as aforesaid, whether he (the said M. C. Pigg) knew of any betting between anybody in a game of baseball played at Evant between the Hamilton and Star teams, and whereas in truth and in fact the said M. 0. Pigg was interrogated, questioned, and asked by said grand jury as aforesaid whether or not he (the said M. 0. Pigg) knew of any betting on the game of ball played at Evant between the Star and Hamilton teams, or held any stakes put up on that game, and which said statement and statements so made by the said M. 0. Pigg as a witness in said case, in the manner and form as aforesaid, were deliberately and willfully made and were deliberately and willfully false, as he (the said M. C. Pigg) then and there well knew, against the peace and dignity of the state.”

This indictment is attacked from many standpoints: Eirst, it is not alleged Pigg was a witness before said grand jury at the time alleged in said indictment; it is not alleged in said indictment that he was sworn as- a witness before said grand jury; it is not alleged that the questions which it was stated in said indictment were actually asked Pigg were material to any investigation by said grand jury; nor is it shown that the statements alleged to have been testified to- by said defendant while a witness in his own behalf were material to the issues then being tried before the court (that is, material to the guilt or innocence of the defendant for which he was then being tried). It is further objected to the indictment that it does not state. which of the statements were material; the said statements relate to more than one matter, and evidently being made in answer to more than one question, and relating to several distinct and independent matters, and not so connected as to make the falsity of one the falsity of all, and it being impossible from the language of the allegations as to the materiality to determine from such allegation which statements it would be claimed were false. The indictment is further attacked because it appears from the allegations that it was not a material issue between the state and appellant in the district court of Hamilton county, wherein appellant was charged with perjury, as to whether he was interrogated and questioned by the grand jury whether he knew of any betting on any baseball game, or whether he held stakes on any baseball game played in Hamilton county, because the material inquiry would not be as to the questions but would be only as to what he did testify, if he did, when a witness before the grand jury. Further the indictment is attacked because the questions asked could not be material unless it was alleged that the betting occurred in Hamilton county, and the questions are not shown to have been limited or restricted to betting in Hamilton county, but the questions are general and broad as it is possible to make them without any reference to Hamilton more than any other county.

On inspection of this indictment it occurs to us it is subject to the criticisms urged. The indictment does not allege anywhere that at the time appellant was asked the questions before the grand jury, except inferentially, he was a witness. Of course we might infer from the fact that he was testifying before the grand jury that he was a witness before that body, but it is not alleged specifically that he was a witness or how he got before the grand jury. The indictment further does not allege that if he was a witness before the grand jury he was ever sworn by the grand jury before being asked the questions.

The indictment does not allege it was material before the grand jury to ask the witness the questions, or the questions were material at the time they were asked, or that they applied to Hamilton county, or violations of the law. It may be further stated that the indictment, in our judgment, is specially defective in not showing that these questions asked were material. There is nothing to indicate they were material as to any inquiry before the grand jury. It is not shown that he testified anything. What the answers were, if he was asked before the grand jury, are not stated. The grand jury would only have the authority to investigate violations of the law, and the fact that he stated before the district court that he was not asked those questions before the grand jury could not be material. They were but questions that may or may not have been asked in the district court as a predicate for impeachment, if in fact he could be impeached in that way. A witness may be impeached by showing that he testified differently at some other time or place than at the time he was then testifying. If these questions were asked in the district court as alleged, and he denied having made them before the grand jury, it was not material. It does not show or allege, or undertake to show or allege, what his testimony was before the grand jury, or that it was different there from what it was in the district court. It may not have been material to have asked him these questions before the grand jury. Unless he answered falsely, it could not constitute perjury. If he answered truthfully, it could not be perjury, unless he answered he knew of no violations of the law in Hamilton county in the matter asked about, it would make no difference. The Hamilton county grand jury had no right to inquire about cases beyond Hamilton county.

That was an inquisitorial body pertaining alone to offenses committed in Hamilton county or that could be prosecuted in Hamilton county. There are so many reasons why this indictment is fatally defective it is useless to pursue this matter further. We might go further and state, if it were- necessary, that by the plea of former acquittal appellant was charged with perjury before the grand jury in regard to stating that he had not held certain stakes. If it was the same matter set up in that indictment and the answers would have been to questions set up in this indictment, of course that plea of acquittal would have been a bar to this prosecution. Perhaps we might go further still under the statement of facts and show that the state has no case upon which to predicate a conviction, if we should go beyond the questions asked and look to the evidence, which shows that defendant may have answered and did perhaps answer. It seems, if there was any bet on the game between the Hamilton and Star baseball teams, it was between two named parties. They signed a check each, and the winner was to have both. It seems these checks were not deposited with appellant directly but left in his business house to be delivered to him. 1-Ie in some way came into possession of them, and the parties who signed the checks, talking with him subsequently about the matter, told him that these checks were signed with the understanding that it was to be a bet if there was no violation of the law, but, if there was, then the giving of these cheeks was to be withdrawn and there was to be no bet, as they did not purpose to bet in violation of the statute or the law of the state. They were informed of the fact that it might be a violation of the law, and the matter ended. These were facts upon which he was acquitted in the other case, or the substance of them. While the matters are stated generally with reference to the questions, we have stated, we think, sufficiently enough to show this case ought not to have been tried and that appellant, as we understand this record, has not violated the law.

With reference to the sufficiency of the indictment on various grounds, numerous authorities- may be cited, some of which will be mentioned: Mattingly v. State, 8 Tex. App. 345; Brooks v. State, 29 Tex. App. 584, 16 S. W. 542; Higgins v. State, 50 Tex. Cr. R. 433, 97 S. W. 1054; Wynne v. State, 60 Tex. Cr. R. 660, 133 S. W. 682; Agar v. State, 29 Tex. App. 606, 16 S. W. 761; Gallegos v. State, 50 Tex. Cr. R. 190, 95 S. W. 123. We might also cite Brown v. State, 40 Tex. Cr. R. 48, 48 S. W. 169; Moss v. State, 47 Tex. Cr. R. 459, 83 S. W. 829, 11 Ann. Cas. 710; Parker v. State, 25 Tex. App. 743, 9 S. W. 42; Weaver v. State, 34 Tex. Cr. R. 554, 31 S. W. 400.

The judgment is reversed, and the prosecution is ordered dismissed.


text:
    MASTERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Homicide (§ 300) — I nstbuctions — Threats.
    Where, in a prosecution for homicide, there was evidence that deceased had threatened to kill defendant, and that such threats had been made openly to him and also to others and communicated to him, it was error to omit to charge on such question in connection with the law of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 309) — Instructions — Manslaughter — Defense of Relative — Threats.
    Where the evidence showed direct and communicated threats, and also that accused at the time was defending his sister, who was decedent’s wife, and at the time of the killing defendant made a motion to get his pistol, such facts presented the issue of manslaughter, even though they did not amount to self-defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. | 309.]
    3. Homicide (§ 291) — Instructions—Improp- ' er Treatment.
    Where decedent’s attending physician testified that the wound inflicted by accused was not necessarily fatal, that decedent’s life might have been saved by an operation which the witness desired to perform, but was forbidden to do so by decedent's mother, who had him in charge, and that she administered to him certain medicine which was detrimental and which witness told her not to give, entitled accused to a charge on negligence and improper treatment by others.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 696; Dec. Dig. § 291.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Robert Masters was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    C. M. Ellis and S. A. Denny, both of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

Appellant was convicted of murder in the second degree, and given live years in the penitentiary.

It is urged that the court committed error: First, in failing to give in charge the law of manslaughter; second, the law of threats; and, third, the law with reference to negligence or improper treatment of deceased by third parties. Without going into anything like a detailed statement of the facts, appellant and deceased were brothers-in-law; the deceased having married appellant’s sister about a year and a half prior to the homicide. There was a previous trouble between the parties, in which the deceased seems to have been the aggressor. Threats were made by deceased directly to the defendant prior to the homicide that he would take his life, as well as to others, who communicated the threats to appellant. On the morning of the homicide and prior thereto, the deceased and his mother had intended, and had given notice to that effect, leaving the town of Crockett, where they were, and had gone to the depot for that purpose. The deceased had used $300 of his wife’s money without her knowledge or consent. With $50 of this amount he had purchased a horse; had traded this horse for another horse and colt. On the morning of the homicide, and prior to the supposed departure of deceased and his mother, his wife, appellant’s sister, had phoned to the bank to ascertain if she had any money on deposit. She was notified that she had none. She was then aware of the fact that her husband had used all the money; and she so swears. She was a state’s witness. The deceased returned from the depot to the house where the parties all lived, or had been living, and got the horse and colt, one or both, and had started away, when his wife intercepted him and forbade him taking them away. A war of words ensued between them, when he announced his purpose to take them, and she forbade him to do so. While this colloquy and disturbance was going on appellant arrived home, and went in the house preparatory to eating his dinner. He was driver of an ice wagon; it was the noon hour, and he had come home for his dinner or lunch. While deceased and his wife were in the yard engaged in their trouble over the horses, the deceased pushed his wife off, or struck her two or three times, and she called appellant the third time before he responded. He went into the yard from the house, having procured his pistol, where the parties were, or near where they were. This occurred at the time or just after deceased struck or pushed his wife, appellant’s sister, from him, deceased. His sister hallooed to appellant, “Robert, come here, come out the back door and make Herbert stop.” Appellant hesitated a little while because he and deceased had had previous trouble, and he says, realizing the fact that deceased had threatened to kill him, he did not care to go. After his sister called him the third time he did go. He says: “I knew it was my sister, and she needed assistance, and I went out there. I went out there and said: ‘Herbert, you go and leave Bertha alone; you have been running over her all the while, and you go on and leave her alone.’ And he says: ‘You go on and attend to your own damn business; you haven’t anything to do with me at all’ — and at that instance he went for his pocket, his right pocket, with his right hand, and I fired immediately. I shot him in the right side.” In this connection he says that he shot at his arm in order to stop him from getting his pistol out of his pocket, but missed that, and the ball went into his side. It is further shown by the evidence of the attending physician that the wound was not necessarily fatal, and that the life of deceased might have been saved if an operation had been performed. He talked with the, doctor about the matter, and he told him that he would pay for the operation, and urged him to have it performed. The doctor wanted to attend to this matter, but was forbidden to operate upon deceased by his mother, who had charge of deceased. It is also in evidence that the mother of the deceased gave the deceased medicine which the doctor told her not to give, and the doctor so testifies, and further testifies that the medicine given was detrimental to deceased and ought not to have been given. It is also shown the mother of deceased sent to the drug store and got the medicine and gave it over the command and injunction of the physician. Without going any further into the details of the testimony, this, we think, is sufficient to give a bird’s-eye view of the case for the questions raised.

This testimony raises the issue of threats. The court failed to charge upon this issue in connection with self-defense, and refused special requested instructions presenting this matter for the consideration of the jury. This was error.

Again, this evidence clearly presented the issue of manslaughter from, two distinct standpoints: First. The assault and conduct -of the deceased toward appellant’s sister. She was a female relative within the statute, although she was the wife of deceased. The authorities are clear upon this point. See Stapleton v. State, 56 Tex. Cr. R. 425, 120 S. W. 866, and Branch’s Criminal Law, § 511, for collated authorities. The second phase of manslaughter should be given from the general circumstances of the case, facts, and combination of circumstances. The appellant had gone to the rescue of his sister under the circumstances detailed, and further circumstances are in evidence that deceased had threatened to kill defendant, and made a motion to get his pistol; and, even if it did not amount to self-defense, these circumstances would present the issue of manslaughter.

Again, we are of opinion the charge with reference to the negligence and improper treatment by others than the defendant should have been given in charge to the jury. See Morgan v. State, 16 Tex. App. 593; Franklin v. State, 41 Tex. Cr. R. 27, 51 S. W. 951.

Upon another trial it is suggested the court be more explicit and full in his charge on self-defense, and present these issues so that defendant may have the benefit of those matters if they arise under the law and facts.

The judgment is reversed, and the cause is remanded.


text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Homicide (§ 250) —Evidence — Sufficiency. .
    In a prosecution for homicide, evidence held sufficient to support a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, ■Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    2. Criminal Law (§ 1099) — Statement of Facts — Time of Filing.
    Where accused complained of the misconduct of the jury, a statement of facts as to the evidence on the motion for new trial, which motion was overruled, cannot be considered where not filed until after the adjournment of •court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Madison County ; S. W. Dean, Judge.
    Manse Johnson was convicted of manslaughter, and he appeals.
    Affirmed.
    T. J. Ford, Carl T. Harper, of Madison-ville, Dean, Humphrey & Powell, of Huntsville, and Fisher & Fisher, of Austin, 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, P. J.

Appellant was convicted of manslaughter and his punishment fixed at four years’ confinement in the penitentiary.

In some of the grounds of appellant’s motion for new trial he complains that the evidence is insufficient to sustain the verdict. However, he does not present this matter in his brief. We have read the statement of facts. The proof by the state is sufficient to show practically an unprovoked killing of the deceased by appellant, and that he shot at him as many as four times and hit him three times. As soon as he shot at him the first time the deceased ran, pleading that he shoot 'him no more; but appellant pursued him and shot him twice more. The evidence is amply sufficient to sustain the verdict.

In his motion for a new trial and supplemental motion, appellant complained of what he alleged was misconduct of the jury in some particulars. The state resisted this and made a motion to strike out appellant’s supplemental motion setting up these grounds because it was filed too late. The record shows clearly that the court heard considerable evidence as to these matters in hearing and ruling upon the motions for new trial, and that after hearing all the evidence he overruled the motion. There is in the record what purports to be a statement of facts as to this evidence. The term of the court at which the trial occurred adjourned on May 17, 1913. This purported statement of facts on the hearing of said motion appears not to have been agreed to, and approved by the court until July 1, 1913, and filed the next day. The Assistant Attorney General objects to the consideration of this purported statement on the ground that it was not filed until long after the adjournment of the court, and'under the law, in order to be considered, it must be filed during the term of court. The Assistant Attorney General’s objections are well taken, and, under the uniform and repeated holdings of this court, this statement cannot be considered. It is useless to cite all the cases, but see Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Knight v. State, 144 S. W. 967; Vick v. State, 159 S. W. 56.

There are no other questions presented.

The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    GERRADE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Criminal Law (§§ 1095, 1102*) — Appeal — Statement of Facts.
    Documents purporting to be a statement of facts and bills of exception, not approved by the trial judge, will be stricken out on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.*]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.

      Mrs. W. B. Gerrade was convicted of keeping a bawdyhouse, and she appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for keeping a bawdyhouse, and her punishment fixed as prescribed by law.

There is indexed in the record what is stated to be a statement of facts and three bills of exception.. Neither' of these documents were approved by the trial judge; hence the motion of the Assistant Attorney General to strike but these documents, is granted, and they will not be considered. There is no question raised that can be considered in the absence of a statement of facts.

The judgment will be affirmed.