text:
    ALLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Intoxicating Liqttoes (§ 226) — Offenses — Evidence—Admissibility.
    In a prosecution for' keeping a place .where intoxicating liquors were sold without a license, where defendant admitted the ownership of the property, but claimed that it was rented to a club the members of- which used the liquor, evidence that after the time of the commission of the offense with which accused was charged, the selling of liquor in that place was enjoined is inadmissible, because merely being the opinion of the judge as to the legality of the sales and coming long after the commission of the alleged offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282-286; Dec. Dig. § 226.]
    2. Intoxicating Liquors (§ 226*) — Oittenses —Evidence—Admissibility.
    In a prosecution for keeping a place where intoxicating liquors were sold without a license, where accused claimed that he rented the premises to a club the members of which used the liquor, evidence that the place was located near a white school is inadmissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282-286; Dec. Dig. § 226.]
    3. Intoxicating Liquors (§ 239) — Offenses —Instructions.
    In a prosecution for keeping a place where intoxicating liquors were sold without a license, where accused admitted his ownership of the premises, but claimed that he rented them to an association, the members of which used the liquor, and offered evidence to that effect, special charges submitting his defense should be given.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    4.Intoxicating Liquors (§ 226) — Offenses — Evidence—Admissibility.
    In a prosecution against one Allen for maintaining a place where intoxicating liquors were sold without a license, where he admitted his ownership of the premises, but claimed that they were rented to an association the members of which used the liquor, evidence that the property was known as “Allen’s Garden” is inadmissible, generally, tending to prejudice accused, and if admitted should be limited to prove ownership.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282-286; Dec. Dig. ” 226.]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    W. D. Allen was convicted of keeping a house where intoxicating liquors were sold without license, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was tried under an indictment charging him with keeping-and being concerned in keeping a house where spirituous, vinous, and malt liquors were sold and kept for . sale without first having obtained a license.

The testimony of several citizens and policemen of Dallas, introduced by the state, would authorize a jury to find that in a place known as “Allen’s Garden” liquors were sold and kept for sale, the state’s contention being that Mr. Allen was the owner and proprietor of the place, and it was run under the name of the Scientific, Political, and Literary Association, as a subterfuge to cover up the illegal purposes of the place, that Allen might engage in the sale of liquors without paying the license fees due under our laws. Appellant’s contention is that, while it is true that he owned the house and grounds where the liquor is shown to have been kept and sold to the members of the club (there being some evidence of indiscriminate sales), the grounds and house was rented by the Scientific, Political, and Literary Association, a bona fide association of persons; that the club paid him $75 per month as rent for the premises, and he had no other or further connection with the business conducted there than any other member of the association. The alleged officers testified that they were officers of the association; that they paid the monthly rental to Mr. Allen; that the place was kept under their direction by a steward, the board of directors controlling the premises; that Mr. Allen was not an officer nor director, and had no voice in the control of the premises.

With these issues sharply drawn, in one bill it is shown: “That while the witness J. T. Murray, a witness for the state, was giving his testimony in chief herein, on direct examination, he was asked the following question by O. C. Westerfeld, assistant county attorney, in speaking of the club which this defendant is charged with running, and in which this defendant is charged with selling intoxicating liquors without a license; ‘Did you ever see them closed only when there was an injunction against them?’ to which question the defendant objected, and the court sustained his objection. The defendant objected because it was immaterial, illegal, incompetent, and prejudicial to this defendant to prove that he had been enjoined from selling liquor at this place by another and different court. Said objection being sustained by the court, and the county attorney having been informed by the court that he could not introduce this testimony as evidence against the defendant on this trial: Be it further remembered that while the Witness A1 Wolff, a witness for the defendant, was upon the witness stand, and after he had testified on direct examination that he was the president of the club which this defendant is charged with running, and in which the state had attempted to prove that he was selling liquor without license, was asked on cross-examination by the said O. 0. Wester-feld, assistant county attorney, ‘How many meetings the club had held since they had been enjoined from selling liquor without license,’ to which question the defendant objected for the reason above set out, and the court sustained tlie objections, and tbe defendant further excepted to tbe county attorney asking a second time a question which the court had instructed him was an illegal question, and thereupon the court again instructed the said assistant county attorney not to attempt to introduce this character of testimony. And be it further remembered that after the assistant county attorney had examined the said Wolff for a few minutes longer, he again asked the said Wolff the question, ‘How many meetings hare you had out there since this club has been enjoned from selling intoxicating liquor without license?’ to which question again the defendant objected, for the reason above stated, and the further reason that this question had been asked by the assistant county attorney and the court had ruled it to be illegal twice before, and the county attorney, after knowing of the ruling of the court, continues to ask this question, which is prejudicial and hurtful to the defendant. It is prejudicial and harmful that-the defendant must continually object to this question, and the court a third time sustains the objection of the defendant, and instructs the assistant county attorney a third time not to ask this (question. And be it further remembered that while the defendant, W. D. Allen, was upon the witness stand, and after he had given his testimony in chief, and it not having been brought out by the defendant, or any other witness, that the club which this defendant is charged with running, and in which he is being prosecuted for selling intoxicating liquor without license, had been enjoined, the said assistant county attorney, O. C. Westerfeld, asked if it were not a fact that he had been enjoined several months ago from selling liquor, and asked if he and the club had not been enjoined several months ago by a district court in Dallas county for selling liquor without a license, to which question the defendant’s counsel objected, and over the objection of the defendant’s counsel the defendant was forced to answer said question, and in order to answer the question it was necessary for him to answer the question in the affirmative, and did so answer the question in the affirmative.”

This testimony was inadmissible, and when the trial judge sustained an objection to it when it was first sought to be introduced, this should have ended the matter, and it was highly improper for the county attorney to keep propounding the same question to different witnesses after the court had instructed him not to do so. However,- it seems by his insistence he finally succeeded in getting the testimony before the jury, when the court compelled appellant to testify in regard to the matter, and also placed in the record an error which will necessitate a reversal of the ease. It is not shown that the same evidence was introduced in the injunction case as was introduced on this trial, and if the district judge did enjoin the sale of liquors'in such garden, this was but his opinion and judgment in that case, and such opinion and judgment was not admissible in evidence on the trial of this case, as the offense for which appellant was on trial in this case occurred long prior to the trial of the injunction proceedings had in the district court. There was and is no contention that appellant, the association, nor its officers had kept any liquor, or made any sale after the issuance of the injunction, and by this testimony it was sought to show, and in fact did tend to prove, that the district judge thought appellant was connected with the matter in a way to make him guilty of this offense by including him in the injunction.

Again, over the objection of the defendant, the state was permitted to prove that this garden was located near a school building which white children attended. This shed no light on whether or not appellant, or the Scientific, Political, and Literary Association was in control of the premises and conducting it. There was no contention that any license-- was held by either appellant or the association, the contest in its last analysis simply resolving itself around the question, Was appellant keeping, or was he concerned in keeping, these premises, or was the association doing so? The objection to this testimony should have been sustained.

Again, all the testimony shows that the grounds and house were the property of appellant. The state’s contention was that he was running a place for storing and selling intoxicating liquors. Appellant’s defense was that he had rented the premises to the Scientific, Political, and Literary Association, a chartered institution, and if any liquors were stored or sold on the premises, it was the act of the association and the steward, and other persons in control of the property, and not his acts and conduct; that while he owned the property, he had no connection with the management of it, nor control over it. He asked special charges presenting these issues, and they should have been given.

The state was also permitted to prove that the property where the liquors were stored and sold was commonly called and known as “Allen’s Garden.” The defendant objected to this testimony, as under the facts of this case such testimony was not legitimate to prove that he was keeping, and concerned in keeping, the premises, and after the testimony was admitted, asked special charges seeking to control the effect of it. It may be true that the property was known as “Allen’s Garden,” but if as testified to by him and the officers of the association, he had rented this property for five consecutive years to the association, and during all that time he had no control over the property, nor connection with it other than to collect his rents, it can be seen how hurtful and harmful would be the testimony that it was known as “Allen’s Garden” under the evidence adduced and issues made. Under the peculiar circumstances of this case this testimony should not have been admitted; and, if admitted, it should have been controlled so that it would only apply to the ownership of the property, and not have been used as evidence that he was in control of the business conducted therein. He was not prosecuted for renting the premises, but as being interested in the business run therein.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    FINCH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Appeal and Ebror (§ 971*) — Witnesses (§ 40) — Appeal — Discretion of Trial Court.
    In a ci'iminal prosecution, the determination of the competency of children to testify is a matter left largely to the discretion of the trial court, who can judge from the demeanor and manner of the witness on the stand, and his determination will not be disturbed on appeal unless an abuse is shown.
    [Ed. Note. — For other cases, see Appéal and Error, Cent. Dig. §§ 3852-3857; 'Dec. Dig. § 971;* Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    2. Witnesses (§ 282) — Examination—Heading Questions.
    The allowance of leading questions is not improper in cross-examination of a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.]
    On Motion for Rehearing.
    3. Witnesses (§ 40) — Competency.
    Under Code Or. Proc. 1911, art. 788, providing that children who do not appear to have sufficient intelligence to relate the transaction or do not understand the obligation of an oath are not competent witnesses, a child of six years of age may testify if he understands the obligation of an oath and can relate the transaction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    4. Homicide (§§ 110, 300) — Defense—Self-Defense.
    Where deceased after some conversation caught accused by the throat and when accused freed himself deceased arose with his hand at his side saying he would kill him, the right of self-defense wa.s perfect, and hence no limitations of the' right need be considered in the charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 140-142, 614, 616-620, 622-630; Doc. Dig. §§ 110, 300.]
    5. Homicide (§ 300*) — Trial—Instructions.
    In a prosecution for homicide, where the charge on self-defense was not limited, a charge on the right of accused to take arms with him to the place of the affray is unnecessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    6. Homicide (§ 300) — Triái>-Instructions. ■
    In a prosecution for homicide, where the evidence was that accused and deceased agreed to meet unarmed, a, charge that accused had the right to bear arms should not be given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    7. Homicide (§ 309) — 'Telal—Instructions.
    In a prosecution for homicide, where the provocation was the pain caused by deceased’s assault, a charge on manslaughter limiting the cause to that of an assault causing pain is not too restrictive.
    [Ed. Note. — For other cases, see Homicide, .Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    Appeal from Criminal District Court, Har-rié County; C. W. Robinson, Judge.
    E. R. Finch was convicted of murder in the second degree, and he appeals.
    Affirmed.
    W. G. Love, E. T. Branch, and Brockman, Kahn & Williams, all of Houston, 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 & Kep’r Indexes

   HARPER, J.

Appellant was convicted of murder in the second degree and his punishment assessed at 20 years’ confinement in the penitentiary.

The first bill of exception complains of the action of the court in refusing to permit the six year old son of appellant to testify in the case. It is shown by the bill the testimony of this witness would have been material in reducing the offense from murder in the second degree to manslaughter, if he would have testified as is alleged in the bill. In the case of Anderson v. State, 53 Tex. Cr. R. 346, 110 S. W. 57, it is said: “It has been uniformly held by this court and is, as we understand, the rule which obtains- everywhere that the matter of passing on the competency and understanding of the witness is left largely to the sound discretion of the trial court. The demeanor and manner of the witness on the stand is often as pertinent a factor in determining the mental capacity and competency of a witness as anything else.” Taking this rule into consideration, we cannot say that the court abused his discretion in rejecting the testimony of this six year old child.

In the only other bill of exception in the record it is claimed that the court erred in permitting the state to ask Mrs. Della Finch certain questions which are alleged to be leading. The record shows that appellant introduced Mrs. Finch as a witness, that she was formerly his wife, and had her testify to certain facts in the case; and we think the questions were perfectly legitimate in cross-examination of said witness, especially so under the qualification of the court appended to this bill, which is accepted by appellant without objection and filed as a part of the record in this case. These are all the bills of exception in the record; no special charges were requested; but the remainder of the motion complains of the charge as given. Without taking up each ground in the motion, we will state we have read the charge as given and the grounds of objection, and we are of the opinion that the charge fairly submitted each issue raised by the evidence. By selecting one paragraph alone and criticis-ing it, the objections might appear tenable, but, when read as a whole, no grounds for such objections exist. The charge fairly submits manslaughter and self-defense under the evidence adduced, and we must consider the evidence in each case in passing on the charge, and, under the evidence adduced in this trial, the objections made present no error that should call for a reversal of this case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he assigns four grounds as reasons why he thinks this court was in error in not reversing and remanding this cause.

The first is that error was committed in not permitting the six year old son of appellant to testify. The rule has always been in this court that this is a matter within the sound discretion of the trial court, and, unless the record disclosed that he abused his discretion and acted arbitrarily, we would not review the matter. The trial judge sees the child, hears him testify on his examination, and while we always loathe to exclude any legitimate testimony, and if this child was a competent witness his testimony would be admissible, yet our Code of Criminal Procedure provides in article 788 that children who do not appear to have sufficient intelligence to relate the transaction, or who do not understand the obligation of an oath, are not competent witnesses; and in Williams v. State, 12 Tex. App. 127, it held that the method of testing the qualifications is confided to the trial judge, and whether or not a child is competent is committed to his sound discretion. While we thoroughly agree with the rule of law as announced in the cases cited by appellant in his brief, yet again, after carefully reading the answers of this child to the questions propounded to him, we are not prepared to hold that the court acted arbitrarily in the premises or abused his discretion in holding the child an incompetent witness under our statute. In the case of Zunago v. State, 63 Tex. Cr. R. 66, 138 S. W. 713, the rule is correctly stated and authorities cited. If appellant was not satisfied with the ruling of the court, he should have asked that the jury be retired and had said child examined as to his ability to relate the transaction, and that he in fact understood the obligations of an oath by the answers given, and then we would be more capable of passing on the question. The-bill does not purport to give the testimony of the child as to the transaction, but a mere statement that he would have testified that deceased “choked his papa first before his papa shot.”

We agree with those decisions cited by appellant wherein it is held that “the trial court should not ignore the phases of manslaughter which may arise on account of imperfect self-defense.” Brown v. State, 54 Tex. Cr. R. 126, 112 S. W. 80. But they have no application to this case.

It was perfect self-defense if the jury accepted the testimony of defendant. He testified that after some conversation deceased jumped at him and caught him by the throat; that he knocked him loose, when deceased arose with his right hand out of sight and said, “Xou son of a bitch, I will kill you;” that he then reached and got his pistol and shot. This presented perfect self-defense, and the court so instructed the jury, telling them: “A reasonable apprehension of death or great .bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said Bert Boatner, but further believe that at the time of so doing the deceased had made or was making an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant killed the deceased, then you should acquit him.”

The court in his charge, in applying the law to the case, placed no limitation on appellant’s right of self-defense, and those cases which hold that, where the court places a limitation on self-defense, he must then instruct as to what offense he would be guilty under such circumstances have no application. If the court had, in his charge, limited this right under any condition or circumstance, the cases cited by appellant would apply. ,

Appellant asked no special charge in regard to his right to taking arms with him to the place, and under such circumstances it has been held not to be error to fail to so instruct the jury, where the court gives a charge on perfect self-defense unfettered and unlimited.

But in this case, had such request been made, it should not have been given, for the testimony of Mrs. Finch would show “an agreement to meet in their shirt sleeves unarmed.” Deceased did go to the meeting, unarmed, in his shirt sleeves, while appellant carried a pistol, and yet there had been no prior trouble between them.

The charge on manslaughter is not too restrictive. It instructed the jury that “an assault causing pain” would be adequate cause, and this is the adequate cause raised by the testimony.

The motion for rehearing, is overruled.


text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Homicide (§ 303) — Assault with Intent to Kill — Evidence—Instructions.
    Where accused and his companions, claiming that prosecutor and his companions had robbed them, showed that prosecutor and his companions had ordered, at the point of pistols, accused and his companions to give up their money, and that thereafter accused shot prosecutor, a charge that if by “force and violence” the property was taken from accused and his companions by. prosecutor and his companions, accused and his companions had the right to slay prosecutor and his companions was not objectionable for using the words “force and violence” instead of the phrase “by assault and putting in fear of their lives or bodily injury.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. § 303.]
    2. Witnesses (§ 318) — Corroboration — Evidence — Admissibility.
    Where a state’s witness testified as to the furniture in a room where a crime was committed, it was permissible for the state to show, in corroboration by officers, that they examined the room, and that there was a table and bed therein, as testified to by the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. § 318.]
    3. Criminal Law (§ 366) — Evidence — Admissibility-Res Gestae.
    A declaration by a person shot, made not more than two minutes after the shooting, and while he was excited and seeking to get away, to the effect that he had been robbed and shot, is admissible as a part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    4. Homicide (§ 187) — Character—Evidence.
    In a prosecution for assault with intent to kill, where the defense was self-defense, and a witness testified that he did not know the general reputation of the third person accompanying prosecuting witness at the time of the assault as to being a peaceable, law-abiding citizen, and such third person had not testified, it was proper to exclude evidence that the witness had heard of instances in the life of the third person indicating that he was a dangerous man.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390ya; Dec. Dig. § 187.]
    5. Criminal Law (§ 656) — Remarks of Presiding Judge.
    Where on a trial for assault to murder, a physician testified to the nature of the bullet wound received by prosecutor, and accused sought to question the witness as to the force of a bullet, the remark of the court on sustaining an objection that it did not appear that the witness was an expert on the force of bullets, and it would make no difference whether the bullet hit proéecutor or not if the pistol used was a weapon that was reasonably calculated to produce death, was not prejudicial to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    6. Criminal Law (§ 1159) — 'Verdict — Conclusiveness.
    A verdict on sharply conflicting evidence, rendered on proper instructions, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    M. G. Wilson was convicted of assault to murder, and lie appeals.
    Affirmed.
    Baskin, Dodge & Eastus, of Ft. Worth, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at two years’ confinement in the penitentiary.

The testimony shows that Lincoln Pepper and his two cousins had gone from Alabama to Oklahoma, and from a point in that state bought a ticket for Dallas. En route to Dallas they stopped over in Ft. Worth and went into the bar of the Rosen Hotel. While in the saloon they and appellant, Lee Black and William Robinson, went into a back room and engaged in gambling. A short time before 12 o’clock they went to room No. 30 in the Rosen Hotel and gambled all night. There is virtually no conflict in the testimony up to this point, but from here on there is a sharp conflict. The state’s witnesses say that about 7 o’clock in the morning one of the Pepper boys won a “pot” and said he was going to quit, when Robinson slipped his hand back in his pocket and took the money off the table and put it in his pocket, and had the other Pepper surrender what money he had in sight and ordered them out of the room. When they left they say they were followed by Robinson and appellant, and after going down the steps, just as they were going out the door some one fired, and Lincoln Pepper was shot in the back. The Peppers returned the fire. The proof beyond doubt shows that appellant was the person who shot Lincoln Pepper. Appellant’s contention is that he, Black, and Robinson had won some money from the three Peppers; that Robinson started to leave, when the Peppers drew their pistols and forced them to surrender, not only the money they had won, but some of their own money; that the Peppers then lined appellant and Robinson up, and marched them out of the room, and down two flights of stairs, when they halted at the landing and told them to remain there until they left; that appellant made the remark he was going to have the Peppers arrested for taking his money, and started down the steps, when the Peppers opened fire on Mm, when he pulled his pistol and shot twice.

Thus it is seen the Peppers claimed they had been robbed by Robinson, Black, and appellant, and when they said they were going to hare them arrested, they were fired on; Lincoln Pepper being wounded. On the other hand, appellant, Robinson, and Black claim they were robbed by the Peppers, marched down the stairway, and when Wilson (appellant) said he was going to have them arrested, he was fired at by the Peppers, merely returning their fire in self-protection. The court submitted this issue to. the jury, and the only complaint of the charge in tMs or any other respect is that the court erred in his charge in instructing the jury that “if by force and violence” the property was taken from appellant and his friends by the Peppers, they would have the right, etc., to slay the assailants; the contention being that instead of using the words “force and violence” he should have used the words “by assault and putting in fear of their lives or bodily injury.” On this point Lee Black testified: “The way the game came to break up, I was sitting over on one side of the table, and Mr. Robinson and one of these Pepper boys were sitting to my left, and Mr. Wilson and another one were sitting on the bed to my right, and we were playing along there, and finally Mr. Robinson got up and said that he was going downstairs to get a drink of water and a little something to eat, or something like that, and he asked the rest of us if we wanted anything to eat, and when he did that, he just taken what money he had, but he picked his money up, and this boy that was playing with him says, ‘No, you won’t take none of my money.’ He says, ‘You won’t quit me at all.’ He says, ‘You won’t go out with none of my money,’ and he jerked out his gun and he says, ‘You must give me all your money.’ He says, T am not going to lose no money.’ He says, ‘I did not come up here to lose no money.’ So, when he done that, this boy that was playing with'me pulled Ms gun out, and this one that Wilson was playing with over on the bed, he pulled his gun out, he handed this boy that was playing with me, his gun—just handed it across the table—and he says, ‘Here take my gun while I get the money,’ and he just raked up the money—taken Robinson’s money. The man that had the two guns he was just holding them this way (indicating); Robinson was to my left, and I was to his right, and the boy had the guns tMs way (indicating); he had one of them on Robinson and one of them on me, and this boy that was playing with Wilson he had his gun in Ms hand, and he held it there and apparently he was watching these people next to me, and so this fellow taken the two guns and one of them made the remark to Wilson, he says, ‘Give me what money you have got,’ and Wilson handed him some money— I don’t know how much—and so one of them says, ‘Here, give me what money you have got.’ ‘Why,’ I says, T haven’t got any money.’ And he says, .‘Yes, you have; you have got it in your coat pocket there.’ So I handed him what money I had. The fellow took all the money that Robinson had in front of him; I don’t know how much he gave him, but he taken all the money he had in Ms hands there.” The testimony of Robinson and appellant is in substance the same, and when the court fold the jury that if the Peppers, or. either .of them, by “force and violence” secured the money, he sufficiently presented the issue, and the criticism of. appellant is hypercritical. No jury could have been misled, and in fact we think it a proper application of the law to the facts, at least a sufficient presentation of it, in the absence of any requested instructions.

Lincoln Pepper had testified to the furniture in the room. In corroboration of him it was permissible for the state to show by the officers that they examined the room, and there was a table and bed in the room, as testified to by Pepper.

O. P. Stanley, an officer, testified that he heard the shots and went at once to the hotel and caught the Pepper boys as they were running from the hotel, and that when he did so Lincoln Pepper, the one who had been shot, said, “They robbed me and shot me as we came down.” This was admissible as res gestee of the transaction; it being shown that he was excited,' was seeking to get away, and not more than two minutes had elapsed from the time the shots were fired until the exclamation was made. However, on objection of defendant the court excluded the statement; and, as it was properly admissible, no error was committed of which appellant can complain.

Lincoln Pepper had testified that he did not live in the same county as Olay Pepper, Ms cousin, and did not know his general reputation as regards being a peaceable, law-abiding citizen. TMs testimony was elicited by appellant. Clay Pepper was not a witness in the case,- and when he had thus answered the question, and when he had thus testified, the court did not err in excluding what he might have testified as to certain in-staneés in the life of Clay Pepper he had heard, but did not know as a fact. As before stated, he was not used, as a witness in the case, and if in fact Lincoln Pepper had heard of certain instances that would indicate he was a dangerous man, appellant nor Robinson nor Black had any knowledge of such fact at the time of the difficulty. Willis v. State, 49 Tex. Cr. R. 142, 90 S. W. 1100; Patterson v. State, 56 S. W. 59.

The only other bill of exceptions and complaint in the motion for new trial relates to remarks of the trial judge. It appears that Dr. Webb Walker had testified as to the nature of the wound received by Lincoln Pepper, its location, etc., when defendant sought to question the witness as to the force of a bullet, etc., the attorney representing the state objecting. The court sustained the objection, and when' the testimony was insisted on remarked “that it did not appear that the witness was an expert upon the force of bullets, and for the purposes of this inquiry it would make no difference whether the bullet hit the man or not if the pistol used was a weapon that is reasonably calculated to produce death or serious bodily injury.” Under the facts of this case this was a correct statement of the law, as the parties were both in one room, the lobby of the hotel. The remark could not have been injurious to appellant, for his pistol shot hit Pepper, while Pepper’s shots missed him, and the court in his instructions so presented the law as to justifiable homicide as would cause this remark to be really beneficial instead of hurtful to appellant.

As before stated, the issues were sharply drawn, but they were fairly presented in the court’s charge, and the jury finds the testimony of the state to be true, and under such circumstances we will not disturb the verdict.

The judgment is affirmed.


text:
    HOLLINS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1.. Criminal Law (§ 1159) — 'Verdict—Conclusiveness.
    A verdict on conflicting evidence, and sustained by evidence, if believed, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 770) — 1Trial—Instruc-tions — Affirmative Defense.
    Where accused, charged with carrying a pistol, admitted that he had the pistol, but showed that he had it for the purpose of selling it to a third person, the court must give an affirmative charge directing his acquittal, if his testimony is believed. *
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Wesley Hollins was convicted of unlawfully carrying a pistol, and he'appeals.
    Affirmed.
    Kay & Seagler, of Palestine, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       For óther cases see same tripic and section ÍSIUMBER in Dec.'Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol.. The state proved that appellant had a pistol on or about his1 person last Christmas morning. Appellant admits in his testimony he had the pistol, but says he had it on this occasion for the purpose of selling it to one George. Garland, and introduced other witnesses supporting his contention.

The court, in his charge, instructed the jury: “If you believe from the evidence beyond a reasonable doubt that- the defendant had on his person a pistol as charged, but you should further believe from the evidence that at the time he so had said pistol he had started to the barber shop to show said pistol to Geo. Garland for sale, by previous arrangement between the defendant and George Garland, and on the day he is alleged to have carried the pistol he had a reasonable expectation of finding Geo. Garland at said barber shop, and you further believe he was on his way to said barber shop, on the usually traveled route, for the purpose of making said sale, and for no other purpose, then he would not be guilty of unlawfully carrying a pistol, and an this event you will acquit him. * * * Now if you believe from the evidence before you, beyond a reasonable doubt, that the defendant, Wesley Hollins, did in Anderson county, Tex. on or about Dec. 24, 1912, unlawfully have on and about his person a pistol, as charged, and that he had no legal right to carry said pistol, as before set out, then he would be guilty; and if you so find, you will assess his punishment at 'a fine of not less than $100, nor more than $200, or by imprisonment in- the county jail not less than 30 days, nor more than 12 .months, or by both such fine and imprisonment.”

It is thus seen the court submitted the defensive issue affirmatively, and the jury did not believe the testimony. About the only question presented is that although the jury did not believe it, and the trial judge also, by overruling the motion for new trial, declares his lack of belief in the testimony, yet we should find the testimony true and reverse the case. There are no bills of exception, no complaint of the charge of the court in the motion for pew trial, and no special charges requested, as before stated; the only contention that we can consider being that as the testimony offered in behalf of appellant, if true, would show that he was not guilty of unlawfully carrying the pistol. We cannot substitute our judgment for that of the jury and the trial judge. Suppose defendant and all his witnesses had testified he had no pistol on that occasion. No one would question the right of the jury to find that he did have one on that occasion, as the officer had so testified. Instead of doing so, he testifies to-what is termed a confession and avoidance; he admits he had the pistol, but that he had brought it to town for the purpose of selling it. Because the testimony offered in his behalf would support his plea in avoidance, was the jury bound-to accept it as true, any more than, when one is.found in possession of stolen articles, and he testifies he bought the goods down the road from a person whose name he cannot recall? In either event the explanation, if true, would entitle one to.an acquittal. Of course, such evidence calls for an affirmative charge on that theory, but when the charge is given, and the jury finds the explanation untrue, we will not disturb the verdict in the one ease nor the other.

The judgment is affirmed.


text:
    COMPTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Indictment and Information (§ 41)— Information—Complaint—Necessity.
    An information must be based on a complaint.
    [Ed. Note.—Eor other cases, see Indictment and Information, Cent. Dig. §§ 152, 163-169; Dec. Dig. § 41.]
    2. Disorderly House (§ 6)—Offenses—Per-sons Liable.
    One who sells real estate to a purchaser who uses it for immoral purposes is not guilty of an offense, but one who leases property with knowledge that the lessee will use it for immoral purposes is guilty.
    [Ed. Note.—Eor other eases, see Disorderly House, Cent. Dig. §§ 6, 9-13; Dec. Dig. § 6.]
    3. Indictment and Information (§ 70)— Information—Formal Requisites.
    An information by a county attorney must allege that he presents to the court that accused has committed the offense charged, and the second count of an information which reads, “and the affiant aforesaid, upon his oath aforesaid, further deposes and says that on said above date and at said time and place,” is objectionable as merely stating that affiant charged accused with committing an offense, but not presenting that accused committed the offense charged.
    [Ed. Note.—Eor other cases, see Indictment and Information, Cent. Dig. § 192; Dec. Dig. § 70.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    C. Y. Compton was convicted of crime, and he appeals.
    Reversed and remanded.
    Nunn & Love, of Georgetown, and W. A. Barlow, of Taylor, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted under an information containing two counts.

As there is no complaint in the record upon which to base an information, it .would be our duty to reverse and dismiss the ease, for, as said in Branch’s Criminal Law, “There is no authority for the presentment of an information if it is not based upon a complaint, and on appeal from a judgment of conviction where an information was presented, the complaint as well as the information must appear in the transcript.” Thornberry v. State, 3 Tex. App. 37; Turner v. State, 3 Tex. App. 551; Casey v. State, 5 Tex. App. 462; Lackey v. State, 14 Tex. App. 164; Rose v. State, 19 Tex. App. 470; Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; McVea v. State, 35 Tex. Cr. R. 1, 26 S. W. 834, 28 S. W. 469; Dickinson v. State, 38 Tex. Cr. R. 472, 41 S. W. 759, 43 S. W. 520; Diltz v. State, 56 Tex. Cr. R. 128, 119 S. W. 92. But inasmuch as it will be necessary to reverse and remand the case on other grounds, we have decided to reverse and remand, with instructions to the county judge, if no complaint was in fact filed, to dismiss the case from the docket.

As stated before, the information contains two counts, but the court in his charge submitted to the jury only the second count in the information, and correctly so, for the evidence would not sustain a conviction on the first count, and shows that if appellant is guilty, if guilty of any offense, only of leasing the house for immoral purposes, there is no evidence that he was interested in the business carried on in the house as charged in the first count. There was a sharp conflict in the evidence as to whether he leased or sold the premises to Dollie Steed. If he sold the premises he would be guilty of no offense, as the law places no limitation as' to whom a person shall sell his property. If he leased the house to Dollie Steed, knowing the purposes for which she intended to use it, and permitted her to so use it, he would violate the law. But as this case will be reversed, we think it would be improper for us to comment upon the testimony. Consequently, several questions are raised which we will not discuss, but will say that the deed from appellant to Ida. Collins, dated November 12, 1906, would shed no light on the transaction with Dollie Steed in March, 1911, and on another trial it should not be admitted.

Appellant moved to quash the second count in the information (the one under which he was convicted) and the motion should have been sustained. The second count reads: “And the affiant aforesaid, upon his oath aforesaid, further deposes and says that on said above date and at said time and place,” etc. Appellant contends this is not a “presentment of an information,” but is an oath in the nature of a complaint, and his contention should have been sustained. In the case of Zinn v. State, 151 S. W. 825, this court held in an opinion by Presiding Judge Davidson: “The contention is made that the information does not present in the court, under the last count mentioned and quoted, that appellant had violated the law; that it only presents to the court that the affiant further deposes and says. This is not sufficient. The information may allege' that the affidavit was filed, but it must allege that the county attorney presented in the court that appellant did the prohibited thing. It is not sufficient to present that there was an affidavit filed to the effect that appellant committed the offense, but the county attorney must directly present the fact that he charges and presents in the court that appellant did the act of -which complaint is made. The first count in the information was properly presented; but it does not present that appellant, on either of the subsequent counts in the information, committed the offense. It only states the fact that the affiant, whoever he may have been, charged appellant with committing the offense. It nowhere, in connection with the third count, presents that appellant violated the law as charged in that count.” This opinion is so fully applicable to the facts in this ease, we merely adopt it without further remarks.

The judgment is reversed, and the cause is remanded.


author: DAVIDSON, P. J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Larceny (§ 23) — Acts Constituting Single Theft.
    The taking of goods from different departments in a department store during a night pursuant to one purpose constitutes but one theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 50-52; Dec. Dig. § 23.]
    2. Criminal Law (§ 823) — Instructions— Misleading Instructions.
    An instruction on a trial for theft of property worth over $50 that theft of property under the value of $50 is punishable by imprisonment in the county jail and by fine, or imprisonment without fine, and, if the jury believe that accused is guilty and have a reasonable doubt as to whether the value of the property taken is less than $50, the verdict must be guilty of theft of property under the value of $50, when read in connection with a charge that, before the jury can convict accused of a felony, the state must show beyond a reasonable doubt that $50 worth or more of property was taken at the same time, is not misleading, but sufficiently places the reasonable doubt as to value in favor of the defendant.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    3. Criminal Law (§ 571) — Reasonable Doubt — Degree of Offense.
    One charged with theft of property worth over $50 cannot be convicted of a felony, where there is a doubt as to the value, and he is then entitled to an acquittal of the felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1272; Dec. Dig. § 571.]
    4. Criminal Law (§ 1090) — Rulings on Evidence — Bill of Exceptions — Review.
    Grounds in a motion for new trial based on rulings on evidence will not be considered when not perpetuated by bills, of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Jim Wilson was convicted of theft, and he appeals.
    Affirmed.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. -

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

   DAVIDSON, P. J.

Appellant was convicted of theft of property over the value of $50; his punishment being assessed at two years’ confinement in the penitentiary.

He was porter in a department store. Goods were missing from the store to the amount of several hundred dollars. Upon an investigation of the matter, appellant took the officers and alleged owner of the store into the basement of the building, and from a place where they had been secreted procured two grips and turned them over to the parties. These grips contained the missing property, consisting of various and divers articles which were carried in stock in the store, handkerchiefs, socks, stockings, suits of clothes, ladies’ underwear, dress skirts, and other things.

One of the principal contentions is there is serious' doubt in the testimony that as much as $50 worth of the goods were taken at one time. There is evidence to justify the jury in concluding that that theory was not true. Among other things, it is shown that quite a lot of the goods found in the grips were in stock the evening before the discovery of the missing goods the following morning. This evidence went to indicate the property was taken after the store closed the previous evening. Evidently appellant secreted the grips, and was particeps eriminis, if not the real and only actor, in placing the goods in the grips. Upon being questioned about the goods, he told the officers that he knew where they were, took them -immediately into the basement, and secured the grips from the place where they had been hidden. If the goods were taken, as indjeated, the night previous to their discovery, it would follow they were all taken in pursuance of one purpose, and taken from the store the night previous. The testimony indicates there was more than $50 worth of the property taken the night before. If they were taken that night, it would necessarily follow that they were taken in pursuance of one purpose and design, and not taken at different dates: The fact they were taken from,different sections of the store under the circumstances of this case would not constitute different takings, and would support the proposition that they were taken in pursuance of one purpose, and, legally speaking, at the same time, so far as the doctrine of theft is concerned when applied to different takings.

It is contended, however, that the court’s charge is wrong in submitting the issue of different takings. The court’s charge in this connection is as follows, after charging theft of property over the value of $50: “Theft of property under the value of $50 shall be punished by imprisonment in the county jail not exceeding two years and by fine not exceeding $500, or by such imprisonment without fine. If you believe, beyond a reasonable doubt from the testimony that the defendant is guilty, and have a reasonable doubt as to whether the value' of the property taken by defendant, if he took any property, at one time was of the value of less than $50, then you Will find the defendant guilty of theft of property under the value of $50, and assess his punishment at confinement in the county jail,” etc. It is contended this charge is erroneous, in that it made the conviction for the lesser offense depend solely upon the existence of a reasonable doubt that the value of the property taken by him at one time was less than $50; his contention being that under the law, if the jury believed the defendant guilty of taking the property described in the indictment and had, a reasonable doubt as to whether the value of the property taken by him at one time was $50, he was entitled to the benefit of this doubt; and, further, that the jury was not authorized to find defendant guilty of the lesser offense,' although they might not have had a reasonable doubt, but might have believed beyond a reasonable doubt that the value of the property taken by the defendant at one and the same time was less than $50. While this charge is awkwardly worded, yet we are' of opinion that it was not in any way injurious to the defendant, and, in fact, we do not believe the jury could have been misled by it. If the jury had a reasonable doubt that the property was of the value of less than $50, they were instructed to convict of the misdemeanor. This places the reasonable doubt in favor of the defendant. Under this charge, if the jury had a reasonable doubt that the property was less in value than $50, they were instructed to acquit of felony. It is tantamount to instructing the jury, if the property was of less value than $50, they should acquit of felony, or, if they had a reasonable doubt in their minds as to the value being less than $50, they should convict of the misdemeanor.

Unquestionably the law is that before the appellant could be convicted of a felony the value of the property must be $50 or in excess of $50. If there was a doubt of this, he was entitled to an acquittal of felony. The jury was appropriately instructed that, before they could convict him of a felony, the state must show beyond a reasonable doubt that there was $50 worth or more of property taken at the same time. Then followed the charge with reference to misdemeanor theft above quoted. We think the charge sufficiently places the reasonable doubt as to the value and that the jury was not and could not have been misled by this charge.

There are some grounds in the motion for new trial with reference to rulings o'f the court admitting and rejecting testimony, but these are not perpetuated by bills of exception, and therefore are not discussed.

We are of opinion, taking the matters as presented, that we would not be justified in reversing this judgment; therefore it is affirmed.


text:
    RICHARDSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.
    Rehearing Denied June 27, 1913.)
    1. Bigamy (§ 4) — Indictment—Requisites.
    An indictment for bigamy must state the name of accused’s first wife and aver that she is alive, but need not state her maiden name.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 19-29; Dec. Dig. § 4.]
    2. Criminal Law (§ 1092) — Appeal — Bill of Exceptions — Time of Filing.
    A bill of exceptions, not filed in the trial court until more than 90 days had elapsed from the adjournment of court for the term¡ cannot be considered -on appeal; the time for filing not having been extended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283⅛-2861, 2919; Dec. Dig. § 1092.]
    3. Criminal Law (§§ 1092, 1099) — Bill of Exceptions — Statement of Facts — Approval.
    Under Rev. Civ. St. 1911, art. 2076, providing that any judge whose term of office may expire during the time prescribed for the filing of the statement of facts and bill of exceptions may approve the same, the statement of facts and bill of exceptions must be approved and signed by the trial judge after his term of office, providing his signature and approval can be obtained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, - 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.].
    4. Criminal Law (§ 1144) — Appeal—Questions Reviewable — Instructions.
    In the absence of a statement of facts, the court on appeal will presume that the trial judge correctly charged the law applicable to the testimony, and the complaint that the trial judge failed to give special charges requested cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771. 2774r-2781, 2901, 3016-3037; Dec. Dig. £ 1144.]
    Appeal from District Court, Parker County; J. W. Patterson,-Judge.
    Frank Richardson was convicted of bigamy, and he appeals.
    Affirmed.
    ■Stennis & Wilson, of Weatherford, and N. A. Gentry and Lasseter & Mellwaine, all of Tyler, for appellant. Bernard Martin, Wm. N. Bonner, and Jouette M. Bonner, all of Wichita Falls, J. E. Carter, Co. Atty., of Weatherford, 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

   HARPER, J.

In this case appellant was prosecuted and convicted of bigamy, and his punishment assessed at four years’ confinement in the penitentiary.

No motion was filed to .quash the indictment, but after conviction a motion in arrest of judgment was filed alleging defects in tile indictment. We do not deem it necessary to discuss the grounds, as this court held adversely to appellant’s contention in the case of Morville v. State, 63 Tex. Cr. R. 554, 141 S. W. 98. It was formerly held by this court that it was unnecessary to give the name of the legal or first wife. Watson v. State, 13 Tex. App. 76. This case, however, was overruled in the case of McAfee v. State, 38 Tex. Cr. R. 127, 41 S. W. 627, and it was held necessary to state the name of the first wife and that-she was then living; but in no case has it ever been held that it was also necessary to state her maiden name, and, as stated in the Morville Oase, no good reason can be stated why this should be stated.

There are a number of alleged bills of .exception in the record, and an alleged statement of facts accompanies same. Very able briefs have been filed both in behalf of the state and the appellant, but there are two reasons why we cannot consider the bills of exception. The first is that appellant was tried October 24, 1912. His motion for new trial was overruled on November 4, 1912, and the court adjourned for the term on the 7th day of November. The bills of exception were not filed in the court below until February 11, 1913, more than 90 days having elapsed from the adjournment of court for the term, and not being filed within the .time authorized by law they cannot be considered.

But on another ground they could not, if filed in time,'be considered. The case was tried before Hon. J. W. Patterson, judge of the district court of Parker county; the bills are not verified by his signature, and neither is the statement of facts approved by him. The first act passed authorizing bills of exception to be filed after term time contains this provision: “Judges whose terms of office may expire before the adjournment of the term of said court at which said cause is tried, or during the period of twenty days after the adjournment of the term, may approve such statement of facts or bills of exception.” Our laws have so provided ever since bills of exception were permitted to be filed after term time, and these provisions have been crystallized into article 2076 of the Revised Statutes of 1911, which reads: “Any judge of a district or county court whose term of office may expire before the adjournment of the term of such court at which a cause may he tried, or during the period prescribed for the filing of the statement of facts and bill of exceptions, or conclusions of fact and law,' may approve such statement of facts and bill' of exceptions, or file such findings of fact and conclusions of law, in such causes as provided in this chapter.” Thus it is seen .it has never been contemplated by our laws that any person other than the judge who presided in the trial of the case should be permitted to approve bills of exception or statement of facts. If such a contingency should arise where it would be impossible to secure the signature and approval of the trial judge, such as his death, permanent removal beyond the limits of the state, or other cause rendering it impossible to secure his approval, a different question might be presented. Nothing of this character is made to appear in this record. While we have not judicial knowledge of that fact, yet we know as a fact that Judge Patterson declined re-election, and thus rendered it necessary to elect another at the last general election. We are officially apprised of the fact that Judge P. O. MeKinsey was elected and qualified as judge of that district within the time provided by law, and that he is now and has been judge of that district since about the 1st day of last January; but this fact alone did not authorize him to approve bills of exception in cases tried by Judge Patterson in the preceding October. There is sound reason for this rule. It is impossible for Judge MeKinsey to know what bills of exception were in fact reserved, or whether the grounds of objection stated in the bills are in fact the grounds urged on the trial of the case; but the main reason is that the statute provides for the outgoing judge to sign and approve the bills of exception and statement of facts, and there is no provision of law authorizing the incoming judge to approve them. Again, while the law gave the appellant 30 days after term time in which to prepare and file his bills of exception, yet they were not filed in that time, and while Judge Patterson remained in office no request was filed asking an extension of time, and no extension of time was granted' by Judge Patterson, and it was not until after Judge MeKinsey had taken the oath and assumed the duties as judge that any effort was apparently made to secure an extension of time, or any effort made to prepare or file bills of exception.

The record being in this condition, and no statement of facts nor bills of exception contained therein, we cannot consider it. The other questions sought to be raised are not presented in a way we can consider them. There is no complaint in the motion for new trial as to the charge of the court, while there is complaint of the failure of the court to give some special charges requested. However, in the absence of a statement of facts approved by Judge Patterson, the judge who tried the case, and in the absence of any reason being stated why the same was not presented to him and approved by him, we must presume the judge charged the law, and all the law, applicable to the testimony.

The judgment is affirmed.


text:
    RUST v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1.- Highways (§ 17)' — Establishment by ■ Peescbiption— Sheficiency of ‘Evidence. _
    _ In a prosecution for obstructing a public road, evidence for the state that overseers had been appointed for the road for every year from 1878 down to the, trial would have supported a finding that the state had acquired title by limitation, where the road did not coincide with the road as laid out by the commissioners’ court.
    [Ed. Note. — Eor other cases, see Highways, Cent. Dig. § 24; Dec. Dig. § 17.]

      '2. Highways (§ 7) — Establishment by Pee-scbiption — Permissive Use.
    Where, at the time a road was laid out by a jury of view on the line of a survey, there was an old road crossing such survey diagonally, and the owner of such survey, who was a member of the jury, told the other members that the public might continue to use the old road until he chose to fence the survey, the use of the old road by the public was not adverse to his title.
    [Ed. Note. — Eor other cases, see Highways, Cent. Dig. §§ 10, 12-14, 16, 18; Dec. Dig. § 7.]
    3. Highways (§ 164) — Obstruction — Criminal Offenses — Questions for Jury.
    In a prosecution for obstructing a public road, evidence that accused went to the county commissioner of the precinct and inquired about the boundaries of the road and was authorized by the county commissioner to fence the road was sufficient to present an issue of fact for the jury whether accused’s act was willful, which should have been submitted by a proper instruction, although there was evidence for the state -that he was not authorized to fence 'the road by the county commissioner, since if the jury believed the evidence first referred to they could hardly have found that he acted with evil intent and legal malice.
    [Ed. Note. — For other cases, see Highways, .Cent. Dig. §§ 447-455; Dec. Dig: § 164.]
    4. Evidence (§' 386) — Parol Evidence — Establishment of Highway.
    The report of a jury of view appointed to lay out a road and the order of commissioners’ court- adopting such report could not be varied by the testimony of .a juror tha't the report did not correctly describe the highway as in fact surveyed and adopted by the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1678-1697; Dec. Dig. § 386.]
    Appeal from Red River County Court; George Morrison, Judge. " '
    B. A. Rust was convicted of obstructing a public highway, and he appeals.
    Reversed and remanded.
    Chambers & Black, of Clarksville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted for obstructing a public road, and from such conviction prosecutes this appeal.

The report of the jury of view and the order of the commissioners’ court, adopted in 1898, show that the Clarksville and Stephenson ferry.-road would run with the north and east line of the N. G. Benton survey. The' road, as originally used and worked from 1878 down to the present time, ran diagonally across this survey. If the state has title to this road as used, it is by limitation- and hot by order of condemnation nor brder of the commissioners’ court. We think the evidence offered in behalf of the state would disclose title, by limitation, as it- is shown that overseers have been appointed for this road for every year from 1878 down to the time of this trial; but, while the evidence offered in behalf of the state would support such a finding, yet the evidence offered in behalf of appellant would tend to show that an old road was on the land as it now runs prior to the time a road was laid out-by the jury of view; that the owner of this survey was a member of the jury of view; and, while the lines of the road as run out called for the north and east lines, yet that Mr. Upchurch told the other members of the jury of view that the public might continue to use the road running diagonally across the survey until he should choose to fence the' survey. If this fact be true, the use of the road would not be adverse to Mr. Upchurch’s title to the land, and this issue should have been submitted to the jury. Farr v. State, 55 Tex. Cr. R. 271, 116 S. W. 570.

Again, appellant and Jim Law testify that they went to the county commissioner of that precinct and asked him about the boundaries of this road, stating that they understood it in fact called for the lines of the survey, and they desired to know if that were true; that the county commissioner told them he did not know but would examine the record and see; that he reported to them later and told them he could find no record, and the 'county commissioner then authorized them to fence the road on the line, which they did do. The county commissioner denies authorizing them to do so, but this presented an issue of fact to be determined by the jury, and as this act is charged to have been “willfully” done, taking the testimony of appellant and Law as true, they would have hardly also found that the act was done with evil intent and with legal malice.- While, as stated before, •the evidence offered-in behalf of the state was ample to authorize the jury to find that the county commissioner made no such statement-to appellant, and there was ample evidence to sustain that the act was willfully done," yet such testimony raised an issue of fact. A special charge was requested in regard -thereto, and the court erred in not properly submitting that issue to the jury.

Again, after the state had introduced in evidence the petition for the road, the report of the jury of view, and the order of the commissioners’ court adopting the report, it permitted one member of the jury to testify that the report was not correct in calling for the north and east lines of the survey, but that in fact they surveyed and adopted the road diagonally across the survey as the road at present runs. • The report of the jury of view which was sworn to in 1898 and adopted by an order of the commissioners’ court could not be varied by parol testimony.

There are a number of other matters presented by the record, but the above three bills are the only bills that present error, but on account of them the judgment is reversed, and the cause is remanded.


text:
    JEFFERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Homicide (§ 285)—Instructions Defining Homicide—Sufficiency.
    An instruction which defines homicide in the language of the statute, except it uses the expression “the destruction of the life of one person” instead of the statutory expression “the destruction of the life of one human being,” is not objectionable.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 585; Dec. Dig. § 285.]
    2. Cbiminai, Law (§ 790)—Instructions— Direction to Jury to Follow Instructions—Sufficiency.
    An instruction that the jury are the exclusive judges of the facts and the credibility of the witnesses, but that the law must be received from the court, and that they are bound thereby, sufficiently charges that the jury must receive the law from the court in its instructions.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 790.]
    3. Criminal Law (§ 1159)—'Verdict—Con-clusiveness.
    A verdict on conflicting evidence will not be disturbed on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    John Jefferson was convicted of murder in the second degree, and he appeals.
    Affirmed.
    O. B. Wigley and A. S. McKee, both of Newton, for appellant. C. E. Lane, Asst. Attj/. Gen., for the State.

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

   DAVIDSON, P. J.

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

Appellant criticises the following quotation from the court’s charge: “Homicide is the destruction of the life of one person by the act, agency, procurement, or culpable omission of another”—because the same is erroneous and incorrect and fails to define homicide, as that term is used in law and defined in the statutes of the state. These objections are quite general, but an inspection of the statute, compared with the charge given, shows that if there is any difference it is in the fact that the court used the expression “the destruction of the life of one person by the act,” etc., instead of “the destruction of the life of one human being.” There is no merit in this contention, and we deem it unnecessary to discuss the matter.

The second criticism of the charge is that the court failed to state to the jury in the written charge delivered that they were to “receive the law from the court in this written charge. We think the court’s charge is fully sufficient on this question.” The charge is as follows: “Xou are the sole and exclusive judges of the facts proven, of the credibility of the witnesses, and the weight and value to be given to their testimony, but the law you receive from the court, and you are bound to be governed thereby.” This was sufficient on that question.

Appellant contends that the evidence does not support the conviction: First, because it does not show that the deceased came to his death by the wound inflicted by the defendant; and, second, that the verdict and judgment are contrary to the law and the evidence and not supported by the evidence. We are of opinion that the evidence is sufficient on both propositions. The evidence was conflicting as to the relation of the parties to the difficulty and who was in the wrong. The state’s evidence shows that appellant was clearly the aggressor in the difficulty which resulted in the death of the deceased. The defendant introduced evidence to the contrary. This was a matter for the jury; they saw the witnesses and heard them testify. Under such circumstances, this court would hardly be justified in setting aside the conviction.

Finding no reversible error in the record, the judgment is affirmed.


text:
    Ex parte LYNCHARD.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Bail (§ 43*) — Bailable Offenses — Statutory Rape.
    After a trial for statutory rape on accused’s 13 year old daughter, resulting in a “hung jury,” where it did not appear that force was used, the court erred in refusing bail, especially as accused might have been prosecuted for incest; the highest penalty for which is 10 years’ imprisonment.
    [Ed. Note.—For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Habeas corpus proceeding by M. L. Lynch-ard to obtain his release on bail. From the judgment, relator appeals.
    Reversed, and bail granted.

      J. J. Bishop, Miller & Miller, N. Frank Faulk, and W. L. Faulk, all of Athens, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with rape on his 13 year old daughter, Nevada Lynchard. He was tried prior to the suing out of this writ of habeas corpus (as shown by the record), resulting in a “hung jury” or mistrial. The evidence adduced on that trial is incorporated in the record as a statement of the facts.

Without a discussion of the facts, we would call attention to the fact that appellant could have "been prosecuted for either one of two offenses, incest or rape. Had the state elected to prosecute for incest, the highest penalty authorized by law to be inflicted would have been 10 years in the penitentiary. However, the state, as it had a right to do, the girl being under 15 years of age, elected to prosecute for statutory rape; and it is provided that this offense may be punished by the infliction of the death penalty. The record in this case does not disclose any force was used, and under the circumstances and the evidence before us we think the court erred in refusing appellant bail. It is not proper for us to discuss the testimony, but the judgment is reversed, and bail granted in the sum of $5,000.

Reversed, and bail granted.


text:
    BROOKINS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied June 27, 1913.)
    1. Homicide (§ 203) — Evidence — Dying DECLARATIONS.
    Where decedent, after being shot, was informed by the physician that examined him that he would die and he then told the doctor that he believed he was going to die, that he did not mind dying, and then rehearsed the facts surrounding the shooting, and died before daylight the next morning, his declarations to the physician were admissible.
    [Ed. Note. — For other cases, see ' Homicide, Cent. Dig. §§ 430-437; Dee. Dig. § 203.]
    2. Homicide (§ 308) — Second Degree Murder — Instructions—‘ ‘Implied Malice. ’ ’
    In a prosecution for homicide, the court charged that malice was a necessary ingredient of murder in the second degree, the distinguishing feature, so far as malice was concerned, being that in murder in the first degree malice must be proved beyond a reasonable doubt as an existing fact, while in murder in the second degree it may be implied from the fact of unlawful killing, that “implied malice” is that which the law infers from or imputes to certain acts, however suddenly done, so that when the fact of unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree; and hence, if the jury believed beyond a reasonable doubt that defendant with implied malice shot deceased and killed him, as charged, they should find defendant guilty of murder in the second degree. Held, that such instruction was correct.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.

    For other definitions, see Words and Phrases, vol. 4, pp. 3433, 3434; vol. 8, p. 7682.]
    3. Homicide (§ 295) — Manslaughter—“Adequate Cause.”
    An instruction on manslaughter, defining “adequate cause” as such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and that the jury, in determining whether adequate cause existed, should consider all the facts and circumstances in evidence, and if by reason of such facts and circumstances defendant’s mind was incapable of cool reflection, then the proof of the sufficiency of the provocation satisfies the requirements of the law, was correct.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.

    For other definitions, see Words and Phrases, vol. 1, pp. 181, 182.]
    4. Homicide (§ 300) — Sele-Deeense — Threats.
    Where, in a prosecution for homicide, defendant introduced evidence of communicated threats by deceased, but the state offered no> testimony that the threats had not in fact been made, the court properly charged that if the jury believed from the evidence that deceased had previously made threats to take defendant’s life, and that threats had been communicated to defendant, and that at the time of the killing deceased started to get his gun, or did some-other act which reasonably appeared to defendant to manifest his intention then and there to execute the threats previously made, viewing the same from defendant’s standpoint, then the jury should find defendant not guilty.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 3Ó0) — Sele-Defense — Threats — Instructions.
    Where, in a prosecution for homicide, defendant testified to communicated threats against his life by deceased, but the state offered no testimony that the threats had not in fact been made, nor any evidence on that issue, the court did not err in limiting defendant’s right of self-defense, arising from his evidence of such threats, by making his right conditional on the jury’s finding that the threats were in fact made.
    [Ed. Noté. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    Appeal from District Court, Harrison Comity; H. T. Lyttleton, Judge.
    .Philip Brookins was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Beard & Davidson, of Marshall, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 25 years’ confinement in the state penitentiary.

There is but one bill of exceptions in the-record. In it it is claimed that the testimony of Dr. G. D. Mahon ought not to have been admitted in evidence. The doctor testified he was called to see Dan Boyd, deceased, shortly after he was shot; that he examined the wound, and found it was a fatal one, and so informed Dan; that Dan said he believed he was going to die and that he did not mind dying; that he told Dan he was going to die, and he (the doctor) told him he wanted to know about the matter and the cause of the trouble, when Dan told him: “He said he and Philip Brookins never had any cross words in their life; that Philip came by that evening and talked with him a little while, and said he 'was going up and kill Eli Collier, seemed to be mad at Eli, and he was going up there and kill him, and Dan said he advised him to go on home and not get in trouble, and he went on up to Eli’s and afterwards came back down there. When he came back down Danny said he was out in his lot putting up the mules or feeding them and was coming out of the gate. Think he said he had put his mule up and coming out of the gate, and kinder stooped over to latch the gate or chain it, when he was shot. Pie said he didn’t know Brookins was there. Pie said he was coming out of the gate when he was shot. I examined around the corner of that house and saw some tracks there. I also picked up an empty Winchester shell right there on the ground. I found the shell right there at the corner of the house where the tracks were. The moon was shining, and this shell was in the moonlight. Part of the tracks were in the shadow of the house, and part were in the moonlight. The tracks were right at the corner of the house. It is my opinion that gunshot wound killed him. I left there about 11 o’clock that night.” By the testimony it is made clear that deceased knew he was going to die at the time he made this statement to the doctor, and in fact did die before daylight next morning, and under such circumstances, under all of our decisions, the testimony was clearly admissible. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Pierson v. State, 18 Tex. App. 562; White v. State, 30 Tex. App. 655, 18 S. W. 462; Taylor v. State, 38 Tex. Cr. R. 563, 43 S. W. 1019; Brande v. State, 45 S. W. 18, and authorities cited in Branch’s Crim. Law, § 484.

The court instructed the jury on murder in the second degree:

“Malice is also a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved, to the satisfaction of the jury, beyond a reasonable doubt, as an existing fact, while in murder in the second degree.malice will be implied from the facts of an unlawful killing.
“Implied malice is that which the law infers from or imputes to certain acts, however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, ’ nor tend to • mitigate, excuse, or justify the act, then the law- implies malice, and the murder is in the second degree; and the law does not further define murder in the second degree than if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the " other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree.
“Now, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant in the county" of Harrison and state of Texas, on or about the 18th day of February, 1913, as alleged, with his implied malice, did' shoot Dan Boyd with a gun and thereby kill the said Dan Boyd, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided it be not less than five years.”

Appellant complains of the concluding paragraph of this charge, and insists that in that paragraph he shohld have instructed the jury in regard to manslaughter and self-defense; that it eliminates from the consideration of the jury the charges on manslaughter and self-defense. A charge must be read as a whole, and thus considered. Following these paragraphs of the charge, the court instructed the jury if they had a reasonable doubt as to whether appellant was guilty of murder in the second degree, they would acquit him of murder in the second degree, and consider the charge on manslaughter, and, following the charge on manslaughter, he instructed the jury if they had a reasonable doubt as to whether or not he was guilty of manslaughter, they would acquit; and in addition to this gave the usual charge on presumption of innocence and reasonable doubt as to the whole case. None of the authorities cited by appellant support his contention, but all the decisions of our court have upheld charges on murder in the second degree, drawn in the language used. McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; Douglass v. State, 8 Tex. App. 527; Hernandez v. State, 53 Tex. Cr. R. 469, 110 S. W. 753; Branch’s Crim. Law, § 426, and authorities there cited. In the case of McDowell v. State, 151 S. W. 1049, the charge did not re-, quire the killing to be upon implied malice; in this case the charge does do so, and is not subject to that criticism. The same may be said of the cases of Anderson v. State, 144 S. W. 282, and Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 910, all of which are cited by appellant, and are all that are relied upon by him, and by reference, to the charge in those eases and the charge in this case the distinction will be plainly seen. In those "cases the court’only instructed the jury if the killing was “unlawful.” In this case the court requires the jury to find that the killing was done with “implied malice,” which term he had fully defined in the preceding paragraph.

The court in his charge submitted the issue of manslaughter. While under the facts in this case we do not think that issue was raised, the submission of it to the jury was favorable to defendant, and the court, in defining adequate cause, defined it thus: By the expression of “adequate cause” is meant such as would commonly produce a degree of anger, rage, resentment, or terror, in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in determining whether adequate cause existed instructed them to take into consideration all the facts and circumstances in evidence in the case, and if by reason of such facts and circumstances the defendant’s mind was incapable of cool reflection, then the proof of the sufficiency of the provocation satisfies the requirements of the law. There was no statutory adequate cause testified to in the ease; and, as stated hereinbe-fore, we do not think there were facts in evidence which called for a charge on manslaughter, but if so, the courts charge on manslaughter as a whole was as direct an application to the testimony as was required, in the absence of any request for a more specific charge. In the case of Rogers v. State, 149 S. W. 128, cited by appellant, the adequate cause testified to was a statutory cause, and in such it has always been held that the court must instruct that such provocation is in law adequate cause, but in a ease where there is no statutory 'cause, it is right and proper to leave it to the jury to determine whether or not adequate cause existed in a case.

The only ground in the motion referred to in appellant’s brief, and the only one we deem it necessary to discuss, relates to the court’s charge on self-defense, appellant contending that he was entitled to a charge on self-defense on account of apparent danger, and one in connection with threats. This is the law when the evidence raises such issues, but in this case the appellant’s testimony raises no issue of actual or apparent danger other than danger incident to or growing out of threats. He testified: “Monday morning I went to work cutting post, and worked all that day until Monday evening about 3 o’clock. I got some bark in my. eye and quit and went home. I stayed at home about an hour and then went over to Eli Collier’s to get my cousin to wash for me. My cousin is Minnie Collier, Eli’s wife. I got to Eli’s house about 4 o’clock and stayed there until about sundown. I took my gun with me. Eli wasn’t there. I went from there on down to Dan’s house. I stayed at Eli’s house until about sundown and then went over to Dan’s house. It is about a quarter of a mile from Dan’s house to' Eli’s house. The sun was just going do'wn when I first got to Dan’s house. I went there and sit down on the steps at Dan’s house. My wife and her two sisters were there. I just said ‘Good evening’ to my wife that time, and that is all that was said, and I left and went on around through the bottom, and after while I come back and asked her for the lock for my door, and asked her if she wanted to go home. I come back the second time to get the lock, a door lock. I wanted to lock up my house over at Mr. Moore’s. The sun was down when I got there that time. Those same three women were there when I got back there. I asked my wife did she want to go home, and she talked like she would go, and looked like the way she talked they were keeping her over there. While I was talking there Eli and Dan come up. Eli went on home and Dan stopped. Dan kept on to the lot and turned his mule loose. He never said nothing then, and I went on up to Eli’s house, and as I didn’t see my cousin the first time and went back to see her. When Dan come before I went up to Eli’s house Dan didn’t say anything to me, I was gone up to Eli’s this last time about half hour. While I was up there Eli said, ‘Philip, it is a good thing you got your gun, because Dan said coming on he was going to-kill you to-night or tomorrow night if he caught you talking with your wife,’ and I said, ‘What for? I ain’t done nothing to him for him to talk that way to me,’ and he said, ‘You heard what I told you?’ and I said, ‘Well, I believe I will ask him,’ and goes on down there and set on the steps, and he didn’t talk like he was mad at that time. When I went back there the third time and set on the steps, he asked me what did my cousin say about washing, and I said she was going to wash for me, and then he went and asked his wife was any water in the trough and come on back, and then he called me around there to where he was, around at the corner of the house. I went around there, and he said, ‘What are you toting that God damn gun for?’ and I said nothing; I just come across the bottom, and he said, ‘If I see you talking to Laura, I am going to kill you,’ and said, ‘Wait, and I will go and get it,’ and he started to the house, and I shot him. I shot once. When he left me setting on the steps in front and went around to the back he had done put up his mule. He was standing there at the corner of the house when I shot him. He was not at the gate when I shot him. When he told me what he was going to do he was as close to the gate as that man over there, about six feet, and when he turned to go in the house I shot him. I shot him because he told me he was going into the house to get his gun to kill me for talking to my wife.”

It is thus seen he says that he shot deceased because he had been told of a threat of deceased, and deceased repeated the threat and started in the house to get his gun as he thought. The court instructed the jury:

“Evidence has been introduced in this case by the defendant of threats against his life by deceased. You are instructed that where a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he is permitted to in-'troduee evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made.
“Now, if you believe from the evidence in this case that the deceased, Dan Boyd, had previously made threats to take the life of this defendant, and that said threats had been communicated to defendant, and you further believe that at the time of the killing the deceased, Dan Boyd, started to get his gun, or did some other act which reasonably appeared to the defendant to manifest his intention then and there to execute the threats previously made, viewing the same from the defendant’s standpoint, or if the evidence raises in your minds a reasonable doubt as to whether deceased did so or not, then and in that event you should acquit the defendant, and say by your verdict ‘Not guilty.’ ”

This was a direct application of the law to the issue of self-defense as ’ made by the testimony of defendant, and there was no other testimony raising or suggesting the issue. The state’s case would make a case of murder — even support a verdict for murder in the first degree, because it would suggest and tend to show lying in wait, shooting deceased from the shadow of a house when deceased did not know appellant was present.

Again appellant insists that the court erred in instructing the jury “that if they believed from the evidence that threats had been made,” that his right to act should not have thus been limited, and whether the threats had in fact been made or not, he would have the same right to act as if threats had been made, if he had so been informed. This is the law; and, if the state had offered any testimony that the threats had not in fact been made, the charge would be erroneous. But the state offered no testimony as to threats, either that they had or had not been made, and the appellant elicited all testimony adduced on this issue on the trial. Appellant testified as above stated, and the only other witness testifying on this issue was Eli Collier. All the state proved by this witness was: “I know Philip Brookins, and I knew Dan Boyd. I remember the time Dan Boyd was shot. Just a short time before the shooting. Philip Brookins came to my house a.nd I talked with him. It was about a quarter of an hour before the shooting. He said while at my house he was going back down there and talk to them people, and if they didn’t talk to suit him he was going to burn powder. He had a Winchester with him. He come up by the side of the house and acted like he was slipping up. Didn’t say anything as he come up\ and when I first seen him he was peeping in the hall. This was about 7 o’clock that evening. When he said what I have just told, X told him he had better take the gun and go back over to Mr. Moore’s and shut up, and he said he wasn’t going to be run over or bullied, and he taken the gun and went on down towards Dan Boyd’s house. This all happened the evening of the shooting.” This is all the evidence the state sought from this witness. When defendant was examining this witness he sought to prove that Eli had communicated the threats to appellant, thus making him his witness on that issue, the state having asked him nothing in regard to threats. The fact that the witness failed on examination by the defendant to support the testimony of appellant on that issue, and testified at the instance of appellant and in answer to questions propounded by him, “I did not tell him (appellant) at any time that Dan Boyd (deceased) said he was going to kill him,” would not call for a charge such as suggested by appellant in his brief. As before stated, if the state had offered any testimony that no threats in fact had been made, or questioned the witness Collier in regard thereto, then the rule of law relied on by appellant would apply. But when a defendant testifies as to threats being made and consummated, and seeks to support that theory by testimony of another witness, and fails, and the state offers no testimony on that issue, the charge as given is a sufficient presentation of the law. The charge as given was a forceful application of the law to the plea of self-defense as made by the defendant’s testimony, and the rule relied on by him does not apply under the evidence in this case. He testified to threats, and a belief that deceased started in the house to get a gun to execute the threats. Appellant then elicited from Eli the testimony contradicting the testimony of appellant on this issue. No other testimony on that point was offered by the state or defendant. There was a direct conflict in the testimony of these two witnesses, the testimony of both on that issue being offered and introduced by appellant, when the court submitted to the jury the issue of whether or not they had been made, and under the evidence this was proper.

The judgment is affirmed.