author: HARPER, J. DAVIDSON, J.

text:
    Ex parte NITSCHE.
    (No. 3288.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Rehearing Denied Dec. 2, 1914.)
    Const. 1876, art. 5, § 17, provides that no person shall be held to answer for a criminal offense, unless on indictment, except where the punishment was by fine or imprisonment otherwise than in the penitentiary, and limited the jurisdiction of justice’s courts in criminal cases to those in which the penalty or fine was not more than $200. Acts 15th Leg. c. 79, §§ 13, 14, 15, defined the duties of county attorneys and required them to file an information either in the justice’s or county court in all cases instituted in the justice or county court, and whether the complaint was sworn before the attorney, the county judge, or the justice, and as brought forward in Code Cr. Proc. 1879, arts. 35, 37, 36, provided that, if the offense was a misdemeanor, the attorney should file an information together with the complaint. Acts 15th Leg. c. 103, by section 29 (now Code Cr. Proc. 19ll, art. 972), provided that, upon complaint before any justice or officer, authorized to administer oaths, of the commission of an offense within a justice’s jurisdiction, the justice or other officer must reduce it to writing and cause it to be signed and sworn to by the complainant and then filed; and Code Cr. Proc. 1911, art. 985, brought forward from the Code of 1856 in the same language, provides that, where complaint is made before any justice or officer authorized to administer oaths, the complaint and warrant shall be read to the accused. Held, that prosecutions for a felony must be upon indictment found by the grand jury, prosecutions for misdemeanors upon an information founded upon a complaint when brought in the county court, but that, in prosecutions in justice court, only a complaint was required, and hence a complaint sworn to before the county attorney, without any information filed, was sufficient therein.
    1. Indictment and Information (§ 2*) — Pbosecution in Justice’s Couet — Constitutional AND STATUTORY PROVISIONS.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 4 — 8: Dec. Dig. § 2.*]
    2. Statutes (§ 225%*) — Construction — Laws Passed at Same Session.
    All laws passed at the same session of the Legislature must-be construed together, and especially is this true where the Legislature is adopting a code of procedure immediately subsequent to the adoption of a constitution.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 304; Dec. Dig. § 225%.*]
    3. Statutes (§ 161*) — Construction.
    Where there is an irreconcilable conflict between two acts passed at the same session, the later act will govern.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 230-234; Dec. Dig. § 161.*]
    Davidson, J., dissenting.
    Original application by Ben Nits che for writ of habeas corpus.
    Relator remanded.
    E. T. Simmang, of Giddings, for appellant. P. J. Alexander, of Giddings, and C. E. Lane, Asst. Atty. Gen., for the State. '
   HARPER, J.

Complaint was sworn to before the county attorney, charging relator with selling unwholesome meat. This complaint was filed in the justice court, and relator tried and convicted. No information was filed by the county attorney in justice court, and relator seeks to have the proceedings declared void, because of the fact that the county attorney did not, in addition to a complaint, file an information on the complaint in the justice court. The question presented is: Where the county attorney takes the complaint and files it in the justice court, is he also required to file an information in that court? Relator’s able attorney admits that if the complaint is taken by the justice of the peace, or any officer other than the county attorney, the law does not require the filing of an information in the justice court, but he insists that article 36 of the Code of Criminal Procedure requires an information to be filed in justice court, if the complaint is sworn to before the county attorney. The writer cannot agree that an information is required to be filed on a complaint in justice court in any instance, and does not think the provisions of the Code of Criminal Procedure will bear any such construction, when read all together. The Constitution of 1869 provided in article 5, § 17:

“Every criminal offense that may by law be punished by death, or in the discretion of the jury by imprisonment to hard labor for life, and every offense that may by law be punished by imprisonment in the state penitentiary, shall be deemed a felony, and shall only be tried upon an. indictment found by a grand jury. But all offenses of a less grade than a felony, may be prosecuted upon complaint, under oath, by any peace officer or citizen, before any justice of the peace or other inferior tribunal that may be established by law; and the party so prosecuted shall have the right of trial by a jury, to be summoned in such manner as may be prescribed by law.”

Thus, under this Constitution, it is made plain that only a complaint was required in all prosecutions cognizable in the justice court. When the Constitution of 1876 was adopted, we find a provision:

“That no person shall be held to answer a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary.”

Then follow provisions providing for the various courts, including the justice court, limiting the jurisdiction of the justice courts in criminal cases where the penalty or fine to be imposed may not be more than $200, leaving to the legislative branch of the government proceedings to be had in misdemeanor cases to institute a criminal charge. Following the adoption of the Constitution in 1876, the Legislature convened in April, 1876, and in an act entitled “An act to define and regulate the duties of county attorneys,” we find the following provisions:

“Sec. 13. Upon complaint being made before the county attorney that an offense has been committed which the county court or a justice of the peace has jurisdiction to try, it shall be the duty of said county attorney to reduce the complaint to writing, and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said county attorney. Said complainant shall state the name of the accused, if his name is known, and the offense for which he is charged shall be stated in plain and intelligible words; and it must appear that the offense was committed in the county where the complaint is filed; and the complaint must show, from the date of the offense stated therein, that the offense is not barred by limitation.
“Sec. 14. The complaint specified in section thirteen of this act may be made before any judge of the county court, county attorney or justice of the peace; and, for the purpose of carrying out the provisions of this act, the county attorney is hereby authorized to administer an oath.
“Sec. 15. It shall be the duty of the county attorney, upon the filing of said complaint, to prepare an information in writing, which shall be in compliance with article 403, part third, title four, chapter three, of the Code of Criminal Procedure.”

These provisions are in chapter 79 (Session Acts, pp. 85 to 87), and were approved August 7, 1876. To give these sections a literal construction, it would, by the provisions of section 15, be seen that the county attorney was required to file an information in all cases, whether instituted in the justice or the county court, and whether the complaint was sworn to before him, the county judge, or the justice of the peace, and doubtless that would have been the proper construction to have given that act, if the Legislature had not at the same session later adopted another act, being chapter 103, entitled “An act to provide for the election of justices of the peace, and to define their powers and jurisdiction,” which was approved August 17, 1876, which was ten days subsequent to the act relating to the duties of the county attorney. It is a well-known rule of construction that all laws passed at the same session of-the Legislature must be construed together, and especially is this true where the Legislature is adopting a code of procedure immediately subsequent to the adoption of a constitution, and that, if there is an irreconcilable conflict between the two acts passed at the same session, the last-passed by the Legislature will govern and control. The act passed last, approved August 17th, was an act dealing exclusively with the justice courts, and embraces some 43 sections, one of which (section 29) reads as follows:

“Upon complaint being made before any justice of the peace, or any other officer authorized by law to administer oaths, that an offense has been committed in the county which a justice of the peace has jurisdiction finally to try, the justice or other officer shall reduce the same to writing, and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by such justice or other officer before whom it shall be made; and when made before such justice, or when returned to him made before any other officer, the same shall be filed by him. Said complaint shall state the name of the accused, if his name is known, and the offense with which he is charged shall be stated in plain and intelligible words, * * * and the complainant must show, from the date of the offense stated therein, that the offense is not barred by limitation.”

This provision provides, if the complaint is made before any justice of the peace or any other officer authorized by law to administer oaths, the proceedings which shall be had, and those provisions of the Code in force at that time and now in force, regulating trials before the justice court, provide that on the trial the complaint and warrant shall be read to the accused. Article 985, C. C. P. This article was numbered 824 in the Old Code in force in 1876, and has been brought forward in every revision since that time in identically the same language.

Under all these provisions of the Code, although sections 13, 14, and 15 of the act of August 7, 1876, provided that, when the complaint was made before any county judge, county attorney, or justice of the peace, it should be the duty of the county attorney to prepare and file an information, it was the rule of construction from 1876 to 1879, so far as we can ascertain, taking into consideration the provisions of the act regulating justice courts, passed August 17, 1876, and the provisions of the Code regulating trials in justice courts, no information was required, and trials have always been in justice courts upon complaint alone.

The first revision after the Constitution of 1876 was adopted was had in 1879, and sections 13, 14, and 15 of the act of August 7, 1876, were brought forward therein as articles 35, 37, and 36, with the verbiage slightly changed, but by reference to the revision of 1879 it will be seen, by the marginal notes in the official statute, that articles 35, 37, and 36 are based upon sections 13, 14, and-15 of the act of August 7, 1876; section 15 being changed so as to'read:

“If the offense be a misdemeanor, the attorney shall forthwith prepare an information, and file the same, together with the complaint, in the court having jurisdiction of the offense.”

Thus it is seen that in the broadest sense the county attorney would be required to .file an information in all cases in justice courts. However, it is not insisted that he is so required, but only in cases where the complaint is sworn to before him, and it is contended that this is the proper construction, when read in connection with the articles of the Oode immediately preceding. However, in the same revision of 1879, the provisions of the act of August 17, 1876, were also brought forward, and section 29, herein-before copied, was brought forward as article 902, as shown by the official statute adopted in 1879, and this section has been brought forward in every revision since that time, and is now article 972, and the provisions for the trial of cases in justice courts in force in 1876 have been brought forward in each revision of the Code unchanged, and still read that upon the trial “the complaint and warrant shall be read to the defendant.” Article 9S5 (O. C. art. 824).

By reading the provisions of chapter 3 of title 11 of the present Code of Criminal Procedure, relating to trials in justice courts, and the provisions in force governing trials in said courts in 1876, it will be seen they are identical, the language not being modified nor changed in the slightest particular, and it has always provided that only a complaint should be read to the defendant in justice court. After a careful review of the Code of Criminal Procedure under the Constitution in force prior to 1876, and the provisions of all the acts of the Legislature adopted since the adoption of the present Constitution in 1876, relating to the question in issue, we are of the opinion that our Criminal Code, as provided by the Legislature, under the Constitution, requires that, in prosecutions for a felony, it must be upon indictment found by the grand jury; in prosecutions for misdemeanors, it must be upon an information founded upon a complaint, when brought in the county court; but, when the prosecution is had in justice court, only a complaint is required. The various provisions of our criminal procedure so provide, when construed as a whole; and in our opinion it would be doing violence to the intent of the Legislature to so construe it, that in certhin instances a prosecution could be maintained in justice court upon complaint alone, and in other instances it would take both a complaint and information in the justice court. Of course, if the Legislature had so provided, it would be our duty to so hold; but when the entire Code is read, and the various acts as passed are considered, we do not think such a construction a proper one.

Relator remanded.

DAVIDSON, J.

(dissenting). Appellant was arrested for a misdemeanor, and tried in the justice court of precinct No. 1 of Lee county, and appealed thence to the county court, which appeal seems to have been dismissed.

It is agreed that the affidavit, and the affidavit so shows, charging appellant with the offense, was sworn to before the county attorney. He administered the oath. The county attorney then filed it in justice court of precinct No. 1, where the case was tried, resulting in appellant’s conviction and a fine of $50.

The contention of appellant is that he could not be tried in the justice court, because the county attorney failed to file an information wdth the justice of the peace, as required by the statute. It seems also that no advantage was sought to be taken of this in the justice court, but the question was raised on appeal in the county court. The state’s contention seems to be that, because the question was not raised in the justice court, therefore appellant waived filing of the information in the justice court. Ther'e is no merit in such contention, and it is unnecessary to discuss it. Where the law requires an information to be filed in a criminal case, it must be filed. The accused cannot waive it. If the justice court jurisdiction did not attach to the case, and the proceeding was void for want of the information, the appeal to the county court could not confer jurisdiction upon that court on appeal. The statute requires that, in all cases filed originally in the county court, a complaint and information shall be filed. The information is a necessary prerequisite to the jurisdiction of the county court to try the case. This is settled by all the authorities and by the statute, and the Constitution authorizes this. Article 5, § 17. This case was within the jurisdiction of the justice court to try and dispose of on its merits, and it would become final, unless the convicted party saw proper to appeal to the county court. The Legislature being invested with all the authority necessary to prescribe the practice and method of procedure in justice court, rules of procedure or practice the Legislature saw proper to provide in reference to these matters would be valid and mandatory. Wherever authority as to rules of procedure and matters of practice are discretionary in the Legislature, their action with reference to the matter is final and binding on courts. That body provided in article 35 of the Code of Criminal Procedure that:

“If the offense be a misdemeanor, the attorney shall forthwith prepare an information and file same together with a complaint in the court having jurisdiction of the offense. If the offense charged be a felony, he shall forthwith file the complaint with the magistrate of the county and cause the necessary process to be issued for the arrest of the accused.”

The attorney here spoken of was mentioned in the preceding article as being either the district or county attorney. Where the “jus-. tice of the peace or other officer” takes the affidavit or complaint and files it with the justice court, it is not necessary for the county attorney to file an information. That article is not in conflict with article 35, but, if it is, article 35 will control because special in its application to eases specified in the act. The information must be filed by the mentioned officer. The county and district attorney are the only officers who are empowered and required to file informations. Article 35 specially applies with reference to complaints taken before the county or district attorney and filed in misdemeanor cases, and it requires that in all such cases such attorney “shall forthwith prepare an information and file same together with the complaint,” etc., and under all such circumstances the information shall be filed with the proper court “forthwith” by the county or district attorney. The Legislature had the right to provide this procedure and make it apply only to the county and district attorney. It had the further right to require the filing of this information, and, as the Legislature has so provided, this court nor any other authority would have the right to say this procedure was or is illegal and shall not be followed. There is nothing directory to this; it just says “he shall” do so, and the facts show he did not, and under the terms of this statute, until the information has been filed, where the county or district attorney takes the affidavit, the court does not acquire jurisdiction to try the ease. Filing the information with the complaint is a prerequisite. The same rule obtains in all cases filed

originally in the county court, but in justice court it only obtains when the county or district attorney takes the affidavit. The trial in the county court is void for want of the information. This statute is equally as imperative as that applying to the county court. The language is as emphatic in article 35 as it is in those articles which apply to trials of misdemeanors in the county court where complaint has been made and first filed in that court. This court has adhered to those provisions of the statute at all times and under all circumstances. The Constitution authorizes it, and the statute requires it. Article 5, § 17. The Legislature, as before stated, had a right to so order, and this court has not the authority to say their action was illegal. As illustrative of this, the Legislature has provided a form of recognizance on appeal from county court to this court. This court has always upheld that statute and form rigidly, dismissing a great number of eases because the statutory form was not followed, holding that the jurisdiction of-this court did not attach for want of these. In compliance with article 35, the conviction in the justice court was illegal for want of information, and- the justice court could not acquire jurisdiction without it; therefore the conviction was a nullity.

Judge HARPER cites the Constitution of 1869 to support his views. That Constitution was abrogated by Constitution of 1876, and is not in force. We must look to the latter Constitution and its provisions and legislation thereunder.

I dissent.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    DICKERSON v. STATE.
    (No. 3283.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Appeal from Houston County Court; C. M. Ellis, Judge. Mose Dickerson was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., State.
   PRENDERGAST, P. J.

Appellant was convicted for violating the prohibition law, fense being a misdemeanor. There is neither a statement of facts nor bill of exceptions. No. question is raised which can be considered m the absence of these. The judgment is affirmed.


author: HARPER, J.

text:
    EATON v. STATE.
    (No. 3292.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Appeal from Rains County Court; J. B. Allred, Judge. Acquilla Eaton was convicted of playing cards at a place other than a private residence, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of playing cards at a place a residence. W. E. Bevers, a deputy sheriff, testified that he was informed that a game of cards was being played out in the woods, where appellant and some others were cutting wood; that he went to this place and found his information to be true; that he watched the game long enough to see one hand played and another dealt; that he saw appellant pick up the cards when dealt; and that when he arrested the participants appellant had cards in his hands. Appellant’s testimony is that a game was being played, but by others; that he did not engage in the game. There is but one bill of exceptions in the record, and that complains of the action of the court in refusing to- give a special charge requested. As the charge of the court required the jury to find affirmatively beyond a reasonable doubt that appellant did play at a game of cards, the refusal of the special charge presents no error. The judgment is affirmed.


text:
    HARRISON v. STATE.
    (No. 3297.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Appeal from District Court, Grayson County; M. H. Garnett, Judge. M. O. Harrison was convicted of theft from the person, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of theft from the person, and his punishment fixed at the lowest prescribed by law. There is neither a statement of facts nor a bill of exceptions. No question is raised which can be considered in the absence of these. The judgment is affirmed.


author: DAVIDSON, J.

text:
    Ex parte HICKMAN.
    (No. 3307.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    Appeal from District Court, County; J. C. Scott, Judge. Habeas corpus by J. E. Hickman for the purpose of obtaining bail. Prom a judgment denying the application for bail, the relator appeals.
    Reversed, and bail granted.
    Hudson & Hudson, of Bryan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator was refused bail on habeas corpus trial. A review of the facts and the conditions presented by this record, we believe, justifies granting bail, and that the judge erred in not admitting relator to bail. The judgment will therefore be reversed, and bail granted in the sum of $7,500. The sheriff of Robertson county will take bond under the terms of the law in accordance with the opinion. The judgment is reversed, and bail granted.

HARPER, J., not sitting.


text:
    SPEER v. STATE.
    (No. 3321.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1914.)
    1. CRIMINAL Law (§ 885*)—Suspended Sentence-Recommendation "of Jury—Necessity of Application.
    Where no application for suspended sentence was made by accused, the jury has no right to recommend such suspension.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    2. Criminal Law (§ 1038) — Appeal — Requested Instructions — Exceptions to Charge.
    Under Acts 33d Leg. c. 138, the refusal of requested charges will not he considered on appeal, where no objection was filed to the court’s charge when it was presented to counsel for inspection.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    3. Criminal Law (§ 829)—Trial—Request-ed Instructions—Reputation.
    Where the court’s charge fully covered the law of the case, there was no error in refusing charges requested by defendant.
    [Ed. Note.-—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Mrs. K. C. Speer was convicted of pandering, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of

pandering, and her punishment assessed at five years’ confinement in the state penitentiary.

There are no bills of exception in the record reserved to the introduction or rejection of any testimony had on the trial of this case. The first bill of exceptions complains of the following matter: After the jury had retired, they propounded to the court the following question: “Can we recommend a suspended sentence?” To which the court replied in writing: “No application for a suspended sentence has been requested; hence you have no right to recommend it to the court.” Appellant contends that, although no application had been made by her, yet the jury ought to have been permitted to recommend a suspension of the sentence, if they so desired. This is not the law. Barnett v. State, 170 S. W. 143, recently decided, but not yet officially reported.

Appellant, at the time the charge of the court was presented, to her counsel for inspection, filed no objections thereto; but the record discloses several special charges were requested. It has been held, under the law passed by the last Legislature (Acts 33d Leg. c. 138), these should not be considered, unless objections were made to the charge as given at the time same was presented to counsel for inspection. If error there be, either of omission or commission, the court’s attention must be called to such matter by objection to the charge in the particular where it is deemed erroneous before it is read to the jury.

However, we have read the court’s charge, and think it a fair submission of all the issues raised by the evidence, 'and fully covered all those portions of the special charges requested which are the law of the ease. Of course, the. testimony is in direct conflict. The state’s evidence makes a case, while that of defendant and her witnesses would render her absolutely innocent of the offense of pandering, although running a rooming house of questionable reputation at least. Under the evidence, we do not think there is any question that Mrs. J. G. Wilson, Jr., had acts of intercourse with men in appellant’s rooming house, yet under appellant’s testimony the court instructed the jury:

“The court further instructs you that if you find from the evidence that Mrs. J. G. Wilson, Jr., committed acts of prostitution in the Opera Hotel, and if you believe from the evidence that said house was a house of prostitution, still before you can convict the defendant, after finding as above, you must also find beyond a reasonable doubt that the defendant, Mrs. K. C. Speer, induced or procured or attempted to procure the said Mrs. J. G. Wilson, Jr., to enter or remain therein as an inmate thereof for the purpose of prostitution.”

He also instructed the jury:

“You are instructed that a house of prostitution is one that is kept for the purpose of prostitution, or where prostitutes are permitted to resort or reside for the purpose of plying their vocation. Unless you believe from the eyidence beyond a reasonable doubt that the Opera Hotel, which is alleged to have been kept by this defendant, was such a house of prostitution, as above defined, then it is your duty to find the defendant not guilty.”

Under the facts we do not feel authorized to disturb the verdict, and the court in his charge having fully covered the law of the case, there was no necessity to give any of the special charges requested.

The judgment is affirmed.


text:
    ROMANO v. STATE.
    (No. 3335.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1914.)
    1. Criminal Law (§ 1099)—Appeal—State-ment oe Facts.
    A statement of'facts, not filed until four months after the adjournment of the term of court at which defendant was convicted, could not be considered on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 1099)—Appeal—Presen-tation for Review—Refusal of Instruction.
    An assignment of error, complaining of the refusal of a requested instruction, could not be considered on appeal, where no statement of facts was filed in time.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ • 2866-2880; Dec. Dig. § 1099.]

      Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    George Romano was convicted of embezzlement, and appeals.
    Affirmed.
    L. A. Dale and O. C. McDonald, both of El Paso, 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

   DAVIDSON, J.

Appellant was convicted of embezzlement; Ms punishment being assessed at two years’ confinement in the penitentiary.

The statement of facts was not filed until nearly four months after the adjournment of court. Appellant files an affidavit in regard to this matter, the substance of which is that he had only employed counsel to defend Mm in the trial court, not having in contemplation his services to perfect an appeal. When court adjourned he did not file pauper’s affidavit in regard to securing statement of facts, because he says his friends had agreed to secure money sufficient to obtain the statement of facts. The money was not obtained until after the 90 days had elapsed. After this time a statement of facts was prepared and presented to the district judge, who approved the same as being correct, which statement of facts was filed practically four months after the court adjourned. Under the decisions of this court the statement of facts cannot be considered.

A special charge was requested, which was refused. Without the statement of facts, we are unable to determine whether there was error in refusing to give this charge. Therefore, we cannot revise this question.

The writer desires to say that if the facts had been presented in time to be considered, it is a very serious question whether appellant should have been convicted of the charge of embezzlement, and in fact the writer does not believe he should. have been convicted.

As the matter is presented, we are of opinion that the judgment must be affirmed; and it is accordingly so ordered.


text:
    WATTS v. STATE.
    (No. 3303.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.
    Rehearing Denied Dec. 2, 1914.)
    1. Criminal Law (§ 366) — Admissibility of Evidence — Res Gestas — Robbery.
    In a prosecution for theft from the person, a witness’ testimony that immediately after the alleged theft the injured person came to his place, which -was about 200 yards from the scene of the theft, and requested the witness to give him something with which to defend himself, as the persons who had robbed him were then trying to" kill him, was properly admitted as part of the res gestso, where it appeared that the statement was made while the injured person was excited from being robbed and chased.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    2. Witnesses (§ 388) — Cross-Examination —Impeachment.
    On cross-examination of a witness for the defendant, the state’s counsel was properly permitted to ask him for impeachment purposes, whether, on the day following the alleged theft from the person, -he had made a written statement to the city attorney concerning what occurred at the scene of the theft.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.]
    3. Criminal Law (§ 396) — Hearsay — Ex Parte Statement.
    An ex parte written statement made by a witness for defendant to the city attorney was properly admitted on rebuttal, over defendant’s objection that it was hearsay, where defendant had previously elicited testimony as to the contents of a portion thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    4. Criminal Law (§ 508) — Witnesses—Competency — Convicted Person.
    A person charged, in a separate indictment, with the same offense as defendant, and convicted thereof, was incompetent to testify on defendant’s behalf, though sentence had been suspended and not pronounced against him.
    [Ed. Note. — For other cases,' see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig'. § 508.]
    5. Larceny (§ 31) — Indictment—Value of Property Stolen.
    An indictment for theft from the person need not charge the value of the property taken.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 76-80; Dec. Dig. § 31.]
    6. Criminal Law (§ 918)— Jury — Objection after Conviction.
    An objection that defendant, a negro, was discriminated against, in violation of Const. Amends, U. S. 14, 15, in that the jury commission did not draw a negro on the petit jury, came too late when first made after conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2163-2192, 2195, 2196, 2219-2224; Dec. Dig. § 918.]
    7. Criminal Law (§ 826) — Instruction — Time to Request.
    A requested instruction should be called to the court’s attention before he reads his charge to the jury.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. § 826.]
    8. Witnesses (§ 388) — Cross-Examination —Impeachment—Statements before Grand Jury.
    In a prosecution for theft from the person, it was not error to permit the county attorney, on cross-examination to lay a predicate for impeachment, to ásk a witness for defendant whether he did not make certain statements before the grand jury, though the effect of such evidence was not limited by the court’s instruction, where no request was made for such an instruction, and it appeared that the evidence thus elicited could not have been considered for other than impeachment purposes.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.]
    9. Witnesses (§ 393) — Cross-Examination — Impeachment — Statements before Grand Jury.
    A statement made by a witness before the grand jury, reduced to writing and identified by the assistant county attorney, and signed by the witness, was properly admittted in evidence to impeach the witness, where a proper predicate had been laid for impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    10. CRIMINAL Law (§ 824) — Failure to Instruct— Effect of Evidence.
    In a prosecution for theft from the person, failure of the court to limit the effect of evidence admissible only for impeachment purposes was not error, in the absence of a request for such an instruction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    11. Criminal Law (§ 1159) — Appeal—Evidence.
    The weight of evidence and credibility of the witnesses, in a criminal case, is for the jury and not for the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3Q83; Dec. Dig. 1159.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Will Watts was convicted of theft from the person, and appeals.
    Affirmed.
    J. D. Cottrell, of Plano, for appellant. G. 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

   DAVIDSON, J.

The indictment contains one count charging robbery and one charging theft from the person. The county attorney elected to try on the count charging theft from the person.

Claude Mayes was permitted to testify, over appellant’s objections, that at the time or immediately after the time of the alleged theft the injured party Reagan came to his place, something like 200 yards from1 the scene of the theft, and requested the witness to give him something to defend himself; that the negroes had robbed him and were then trying to kill him. Mayes further testified that he stepped out of his door and saw three men standing up the street near where two streets cross. His testimony does not definitely in the bill of exceptions state the distance'these persons were from his house or the distance from the scene of the theft. This occurred immediately after the transaction, and, if we go to the statement of facts, the state’s evidence shows that these parties had chased Reagan, some using a knife or knives and a pistol. This matter was so closely related to the transaction, and while the alleged injured party was laboring under excitement, etc., we think it comes under the rule of res gestae. See Walling v. State, 55 Tex. Cr. R. 258, 116 S. W. 813. There were two bills of exception reserved to this; the court signing the last of the two bills with this qualification:

“This testimony was admitted as res gestee; the evidence showing that the matters testified by the witness occurred as quickly as the witness could run from the place of the alleged theft and immediately thereafter to the Mayes restaurant, about halfway around the block, a distance of about 200 yards.”

This evidence, under the authority of Walling v. State, supra, would be admissible. Other cases might be cited in support of this proposition, but the Walling Case seems to be directly in point.

Will Smith, alias Lee Smith, testified for the defendant. After he had finished examining the witness, state’s counsel proceeded to cross-examine him. Among other things, he asked the witness if he had made a statement to the city attorney at Plano the day after the alleged transaction, which was written down. These statements were with reference to what occurred at the scene of the theft. The objection was that it was an ex parte statement, and the defendant was not present, and had no chance to cross-examine him. The court admitted this as a matter of impeachment. The facts are not sufficient to show definitely the matter, and for this reason the bill might be considered defective. The witness qualifiedly denied making some of the statements. This bill seems to show that these questions were simply asked for the purpose of impeachment. Under the statement of the bill, we think there was no error. If it was not for the' purpose of impeachment, and was an ex parte statement in the absence of the defendant, the bill should have shown it. This was proper as a predicate for impeachment.

Dick Reagan was the injured party. A bill of exceptions recites after the defendant had rested his case, and the state wais offering rebuttal testimony, among other things, the county attorney offered to read in evidence an ex parte statement made by Dick Reagan before the city attorney at Plano. It is further recited this ex parte statement was not taken at the examining trial, but was made in the office of the city attorney, and no one was present, except himself and the witness Reagan. This statement was written, signed, and sworn to by Dick Reagan. Objection was urged to this on the ground that it was hearsay, prejudicial, and defendant was not present at the time it was made, and was hearsay as to him. Thereupon the court stated that, counsel for defendant having asked the witness Harrington to state whether certain things were or were not in the ex parte statement, he did not see how counsel were in a position to object to its being read to the jury. Thereupon counsel for defendant stated that the county attorney had been reading excerpts from an ex parte statement, and that he felt sure that he had at one time objected to them and understood that the evidence would go in over his objections; that he only asked the witness about a part of the ex parte statement, matters that Mr. Truett had read from extracts from the ex parte statement. Thereupon the court stated that he had not ruled on the ex parte statement, and would keep it out, except for the cross-examination of the witness. Thereupon the county attorney stated that he read a part of the ex parte statement about which the witness testified, and that was directly on the matter brought out by counsel for the defendant at the time, and since that time counsel for the defendant has asked the witness numerous questions as to whether this statement does or does not contain certain things. Thereupon the court overruled said objection and permitted the county attorney to read said statement in evidence before the jury. Then follows the statement of the witness read, or that portion of it read, to the jury. The court explains this bill in this wise:

“The state was permitted to read in evidence the ex parte statement of Dick Reagan, complained of because the defendant had examined the witness Harrington in regard to the contents of the statement. Furthermore, the examining trial statement of Dick Reagan had already been admitted in evidence without objection by defendant, and said examining trial statement contains all the material matters that are contained in the ex parte statement.”

As presented, we think there is no error. The bill recites that the witness Reagan had .been examined about some of these matters by counsel for the defendant, and the statement made was read by the county attorney in answer to those questions and that examination. The bill does not undertake to show nor assert that the statement introduced was not in reply or to meet the questions and matters brought out by the appellant. If one party reads a portion of a statement, the other side has the legal right to read all the remaining portion of it which relates to or explains that which was introduced by the first party, or about which inquiry is made. Unless this is shown to be error, this court cannot hold it error.

Another bill recites that Bud Bowman, alias Automatic Slim, was called by defendant and offered as a witness. Objection by the county attorney was that this witness was not competent, he being charged, under a separate indictment, with the same offense as this defendant, and his case has not been finally settled. Thereupon,, at request of counsel for defendant,' the jury was withdrawn. The court then stated that he understood that the witness offered by the defendant is charged in a separate indictment with the same offense, and this witness had been tried and not acquitted, but was convicted and given a sentence for so many years and his sentence suspended. The court further stated that he would rule that the law means that, unless he is acquitted, he cannot testify. Then follows the testimony which witness would have given had he been permitted to testify, covering several pages. This witness was not a competent witness for'the defendant. The statute provides, where parties are indicted jointly or for the same offense under separate indictments, they cannot be used as witnesses for each other until they have been acquitted. This applies to felony cases. The witness had not been acquitted but had been convicted. He was not a convict, within the terms of the statute, because sentence had not been pronounced against him, but the sentence was suspended. This would not render him a competent witness fpr defendant. The indictment and the verdict of the jury were hanging over him. Under the statute, until he has been acquitted, he could not be a competent witness for the defendant.

Another bill recites that after defendant had been convicted, and after the evidence was all in for the state, a motion was made by defendant to require the state, to elect oil which count it would rely for a conviction, and after the state had duly elected to rely on the second count in the indictment, to wit, theft from the person, the defendant then made his motion in arrest of judgment. The 'substance of this motion is that the indictment was defective because it did not allege the value.of any item charged to have been taken from the person of Dick Reagan, but simply charges that said Will Watts did then and there, etc., take corporeal personal property, to wit, one pocketbook, containing one $10 bill, the same then and there being United States paper money, and two nickels, and one bottle of medicine. It is unnecessary to charge the value of the property taken in cases of theft from the person. See Chitwood v. State, 44 Tex. Cr. R. 439, 71 S. W. 973; Shaw v. State, 23 Tex. App. 497, 5 S. W. 317; Green v. State, 28 Tex. App. 497, 13 S. W. 784; Branch’s Criminal Law, § 827.

It is further contended the motion in arrest of judgment should have been sustained because the defendant is a negro, and the jury commission who drew the grand jury that indicted appellant, and the jury that tried him, discriminated against him in this: The said jury commission did not draw a negro on the petit jury, and therefore, he was discriminated against, in violation of the fourteenth and fifteenth amendments to the Federal Constitution of the United States of America. And further that defendant was in jail when the indictment was returned, and not given a chance to object to the grand jury that found the indictment. These matters came too late after the conviction. If appellant had desired to take advantage of the proposition of discrimination, against him because he was a negro, it should have been taken in advance of the conviction.

Appellant requested a special charge, which was refused by the court. The bill states that after the state and defendant had introduced all of their evidence, and after the court had given his main charge to the jury, the defendant duly presented to the court special charge No. 1, and requested him to give same to the jury. Upon the merits of the charge itself, in view of the charge given by the court, we do not believe it presents error. The matter was sufficiently given by the court in his main charge. The court says that this bill of exception was presented to him on the 5th oí September, and that he had no recollection of the charge having been presented to him, yet he would have refused it, and, if it was in his power, would still refuse to give it. Under the late statute, this charge comes too late. There was no exception taken to the court’s charge, so far as this record is concerned, before it was read to the jury, aud no exception reserved to any portion of that charge. The bill recites that this charge was asked after the court had read his charge to the jury. Appellant should have brought himself within the rule to the extent of calling the court’s attention to it before he read his charge to the jury. We are of the opinion this bill does not show that appellant brought himself within the letter or spirit of that statute.

Another bill recites appellant, after the testimony was all in, asked the court to withdraw from the jury all of the testimony of Claude Mayes wherein he stated what occurred between himself and Reagan at Mayes’ restaurant just after this transaction, and especially the expressions used by Reagan that “they have robbed me.” All this was a part of the res gestee, aud the facts all show for the state that these parties drew a pistol and had a knife or knives, and it was at the time of the alleged theft and occurred immediately after he demanded the return of his property. It is unnecessary to go into details. It was part of the res gestae. We are of the opinion that the testimony was admissible, and there was no error in not withdrawing it.

Another bill recites that, while Thomas, defendant’s witness, was being cross-examined by the county attorney, he asked him if he did not make certain statements before the grand jury. Appellant objected on the ground that these were ex parte statements and at a time and place where defendant was not present and was not allowed to be present, and was hearsay as to him, etc. This was permitted to go to the jury. What that testimony is is not set out in the bill, but the bill further recites that the court erred in not limiting this to impeachment purposes, and further recites that this was called specially to the court’s attention in the ninth paragraph of the amended motion for new trial. The court appends this statement to this bill.

“The question propounded to the witness was legitimate and proper for .the purpose of laying the predicate to impeach the witness. The portions of the statement read in evidence tended or rather did impeach his statement made on the trial. There was no request made to me at the time to limit the evidence. There was no < barge requested for this purpose, and no exception made to my charge because of this fact. The jury could not possibly have used such evidence for any other purpose.”

These reasons given by the judge seem to be sound, especially in view of the late statute which requires these exceptions to charges, etc., before the charge is read to the jury. We also have a line of authorities to the effect that, where testimony can be used for no other purpose than impeachment, it is not error to refuse to limit.it. Under the qualification of the bill by the court, there is presented no error requiring a reversal for this reason.

Another bill recites that the state produced a witness named Neathery, who testified that he was assistant county attorney and was before the grand jury when the witness Allen Thomas testified with reference to the robbery or theft from Dick Reagan on the 6th of February; that he reduced the statement of Allen Thomas to writing; that the same was read over and signed by Allen Thomas, and the witness identified the paper shown to him as being such statement. Thereupon the county attorney stated he would offer two paragraphs of such statement for the purpose of impeachment. Counsel for defendant examined the statement, and then stated to the court that he objected to the statement because it was hearsay as to the defendant. The court thereupon asked the county attorney if he had laid a predicate for this evidence, and the county attorney stated that he had. The court thereupon overruled the objection. The county attorney read said extracts from said statement of Allen Thomas made before the grand jury, which is unnecessary here to repeat, but it is set out in the bill. The court makes this statement on this bill:

“The county attorney had in fact laid the proper predicate for the purpose of impeaching the witness, and, before the charge was read, the defendant and his counsel were given 'an opportunity to except to it, and no exception was made to the charge because it did not state to the jury that such evidence was only admitted for the purpose of impeaching said witness, nor was any such charge requested of me.”
This testimony was properly admitted under the statement of the court, and appellant did not bring himself within the rule of the statute by which he could take advantage of the matter in regard to the failure of the court to charge with reference to this testimony.

It is also contended the evidence is not sufficient to support the conviction of theft from the person. It is unnecessary to repeat • the evidence in this connection. It is, we think, sufficient to show that appellant took suddenly from the pocket of Reagan his property and refused to give it up. Reagan shows it was a pocketbook with $10 and two nickels in it and a bottle of what he called medicine, which was diluted alcohol prepared for medicine under the direction of his physician. This was denied by appellant’s side of the case. We think the evidence is sufficient if the jury believed Reagan, but there is other testimony which corroborates him. But, be that as it may, we think the evidence is sufficient to justify the verdict of the jury; they have the right to weigh the testimony and credibility of tbe witnesses and pass on those matters.

For the reasons indicated, this judgment will be affirmed.


text:
    HOUSE v. STATE.
    (No. 3261.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1914.)
    1. Cbiminal Law (§ 699) — Trial—Opening Statement por Defense — Right.
    Under Code Cr. Proc. 1911, art. 717, prescribing the. order for trial, and providing that after the evidence of. the state is introduced the nature of the defenses relied upon shall be stated by defendant’s counsel and the facts expected to be proved in their support, it is error to refuse permission to make such statement when application therefor is made in an apt time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]
    2. Criminal Law (§ 699) — Trial—Opening Statement by Defendant — Time.
    The fact that defendant had put two character witnesses on the stand before offering to make such statement does not defeat his right to make the statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]
    3. Homicide (§ 169) — Evidence—Previous Conduct of Deceased — III Will Toward Defendant.
    In a prosecution for homicide, where defendant contended that deceased was angry with him because defendant had succeeded in winning a young lady for whom both had been rivals, while the state contended that the ill feeling was caused by a remark made by defendant concerning a sister of deceased, but that it had been, explained, and deceased, at the time of the homicide bore no ill will toward defendant, defendant was entitled to show, as a circumstance tending to support his version of the difficulty, that deceased had urged another young man to attempt to go with the young lady, offering the use of his horse and buggy for such purpose, and stating that he would stop defendant from going with her if’ he was big enough, and he thought he was, which statement was communicated to defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    4. Witnesses (§ 406) — Contradictory Statements — Competency—Other Offenses — Details.
    In a prosecution for homicide, where defendant had denied having had an altercation with a road overseer, even though the state might show that defendant had previously been convicted for such altercation, it was error to permit all the details of that transaction to be presented to the jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    5. Homicide (§ 309) — Instructions—Manslaughter-Application of Facts.
    In a prosecution for homicide, where defendant had previously been severely beaten by two others and contended that deceased had taken part against him dn that affray, and that just before the homicide deceased made a sneering reference thereto which enraged defendant, who thereupon attacked deceased with an axe handle and killed him, defendant was entitled to an instruction applying the law of manslaughter
    to the acts of deceased and of those whom defendant claimed were acting with him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    6. Homicide (§ 309) — Instructions—Manslaughter— Standpoint of Defendant.
    Where the state’s theory was that deceased took no part in the previous affray and bore no ill will to deceased, the court should have instructed the jury that they should consider the question of provocation from the standpoint of the defendant as the facts were presented to his mind.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. § 309.]
    7. Homicide (§ 290) — Instructions—Intent.
    Where defendant killed deceased by striking him with an axe handle, which was admittedly not a deadly weapon, and claimed that he had no intent of killing deceased, he was entitled to an instruction as to the law of White’s Ann. Pen. Code 1911, art. 719, which provides that where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not guilty of homicide unless it appears that there was an intent to kill, but he may be convicted of any grade of assault and battery.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. § 290;]
    8. Criminal Law (§ 823) — Appeal—Harmless Error — Instructions—Cure by Other Instructions.
    ■ Where defendant contended that deceased had participated in a previous affray between defendant and two others, in which defendant was severely beaten, and that at the time of the homicide deceased made a sneering reference to that beating which enraged defendant so that he attacked and killed deceased, error in instructions on manslaughter, which limit the provocation to the acts at the time of the killing, was cured by other instructions that the jury should consider all the facts and circumstances in evidence in regard to the adequacy of the provocation.
    [Ed. Note. — For other' cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    Davidson, J., dissenting in part.
    Appeal from District Court, McLennan County; Richard I. Mimroe, Judge.
    Sam House was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Allen Beadel, of Moody, and Williams & Williams, of Waco, 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-

   DAVIDSON, J.

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

The evidence shows, substantially, that appellant and deceased were young men living in the same section of the county, and had been friends. Prior to the trouble which resulted in the death of the deceased, a young lady came to the neighborhood and taught school. Defendant and deceased became rivals for her affection; appellant winning in the race. This angered the deceased, and was the cause of ill will on the part of the deceased. About a week or ten days before the fatal trouble, appellant was invited to a social gathering where deceased and the Irwin boys attended. The evidence tends to show that he was invited to attend with a view of having trouble that did actually occur at the social function in which the Irwin boys gave appellant a pretty severe beating. It was an issue on the trial whether the deceased was in this or not as a participant. Appellant’s testimony shows he was, and that, when appellant had one of the Irwin boys down, deceased caught him by the hair and pulled him off, to the end that the Irwin boys might have the advantage, which they seem to have secured after this act on the part of deceased. The state sought to deny this. This made an issue on this particular question. A few days subsequently appellant and his brother went to the town of Moody at the request or command of their father to buy a plow, have some blacksmith work done, and purchase an axe handle. While waiting for the work at the blacksmith shop, deceased and a friend drove into town. The inference is fully and fairly de-dueible that neither deceased nor appellant expected to meet each other in town. About 12 o’clock appellant and his brother and another young man were talking. The deceased and his friend passed them. Deceased asked him how he felt by now. The wounds inflicted by the Irwin boys and deceased, if he was engaged in it, had not healed; he was still suffering from that beating. He says that when deceased spoke to him, using the language mentioned, he did it in a sneering way, and that he immediately followed and struck him twice with the axe handle on the head. Some of the witnesses say that he struck three times, once after deceased fell to the sidewalk. There is a great deal of testimony introduced in regard to this particular question as to whether two or three licks were struck, and whether deceased was down when one of the licks was struck. Those are matters about which the testimony raised the issue. Appellant said that he was angered and outraged at the previous beating given him, and, knowing that deceased was engaged ' 1 it, that the remark made to him by deceased as he passed so outraged him that he proceeded to assault him. It is agreed that the axe handle was three feet long and weighed one pound and nine ounces. This is a sufficient statement of the case, we think, to bring in review the matters thought necessary to be discussed.

The first bill of exceptions was reserved to the refusal of the court to permit appellant to make a statement to the jury, as authorized by the statute of his side of the case, as to the testimony which would be introduced. The bill recites the following: After a statement by the attorneys to the effect above mentioned, the court stated:

“It is not customary, and that has not been the practice. Mr. Williams: But it is the statute. The Court: I do not feel like doing that; it is not practiced anywhere that I know of. Mr. McNamara:, This is not the time for it, even if we followed that rule. Mr. Williams: We put on two character witnesses. I am not trying to do anything unusual. It is the plain letter of the statute. The Court: I will overrule the plain letter of the statute. You will have plenty of time to argue the case when the evidence is in.”

This bill is signed without qualification. Among other things, the statute provides that the indictment shall be read to the jury by the district or county attorney, special pleas, if any, shall be read by defendant’s counsel, and, if the plea of not guilty is • relied upon, it shall be stated; that counsel prosecuting for the state shall inform the jury as to the nature of the accusation and the facts which are expected to be shown by the state. The testimony on the part of the state shall be introduced. The nature of the defenses relied upon shall be stated by counsel for the defendant, and the facts expected to be proved in their support. The testimony on the part of the defendant shall be introduced, and rebutting testimony may be offered on the part of the state and the defendant. Just what effect to give this statute with reference to these matters has not been definitely settled. It has been discussed slightly in Holsey v. State, 24 Tex. App. 35, 5 S. W. 523. In that case it was held that, where the .prosecution had failed to make a statement to the jury of the state’s case, it was not reversible unless it was made to reasonably appear that injury had been done the accused by such failure. In Owen v. State, 52 Tex. Cr. R. at pages 67, 68, 105 S. W. 513, the question was again discussed. In that case, as in this, the accused requested the court that he be allowed to state to the jury, in substance, his defenses in order that the jury njight be informed of the nature, character, and extent of it. That was out of the due order of the trial in that case, as provided in the statute (article 717 of the present Revised Code of Criminal Procedure); but in this particular ease the bill shows that appellant insisted upon his right to make a statement to the jury as authorized by the statute at the proper time; that is, after the state had finished its testimony. It was stated in the Owens Case, supra, there was nothing in the bill to make it appear that in the due order of the proceedings appellant offered to make the statement at the time authorized by the statute, or that the court refused to hear a statement or permit it to go to the jury as provided by the statute. The, court then says:

“If it had been offered at the proper time, we would presume, in the absence of the contrary showing, that the court would have permitted the statement to have been made. As the bill presents the matter, we do not feel called upon to decide what would be the effect of a refusal at the proper time to hear such statement; but in passing, however, we would state wherever the, statute provides a matter that may redound to the benefit of the accused on his trial,_ or that is authorized in his behalf, such provision of the statute should be complied with and enforced. Whatever the courts may think about such proceedings, the Legislature has so provided, and the safe rule is to follow statutory enactments. To say the least of it, it will avoid questions for decision upon appeal without any necessity for such questions.”

By the bill it is shown that the appellant insisted upon it, we think, in ample time and in the due order of trial as required by the statute.

There is but one qualification to be made to the statement, and that is two witnesses for the defendant had been introduced as to his general reputation, or what the bill calls “character witnesses.” We think this does not interfere with the right of appellant to make a statement as to the facts of the case. Pie insisted upon it, demanded it, reserved bill of exceptions because he was not awarded the plain statutory privilege, or right. We suppose the statute meant something when it authorized the defendant to make a statement of his case to the jury before introducing his evidence, otherwise the Legislature would not have enacted it. It was enacted to be observed and not ignored. The court says: #

“I will overrule the plain letter of the statute. You will have plenty of time to argue the case when the evidence is in.”

The court should not have “overruled the plain letter of the statute,” but should have enforced “the plain letter of the statute.” Statutes'are made for enforcement and to be observed, and not to be overridden and nullified. The Legislature must have thought that it was worth while to enact this statute, and that it was according the accused a right to be heard as to the nature of his evidence to be introduced before it was introduced. This is not a case of a failure to ask or a waiver of his right, but rather a strenuous insistence that his rights be observed and be accorded him. Whenever this provision is sought to be used by defendant at proper time, the court should permit it.

The second bill is very lengthy, and we think not necessary to be repeated. It may be stated from the contents of this bill that the trouble had arisen between deceased and appellant with reference to the young lady whose affections the appellant had succeeded in obtaining to the extent that he had become engaged to marry her. This seems to have angered the deceased and been the cause, at least the initial cause, of subsequent troubles between them. This bill shows, in this connection, that he proposed to show by the witness Myers that deceased came to him ■in July, 1913, and wanted him to pay attention to the young lady so as to prevent appellant from going with her; and he further stated to Myers that he (deceased) intended to stop appellant from going with her if he was big enough, and he thought he was. The court stated that this was not a threat communicated or uncommunicated. Appellant’s counsel stated it was admissible for the purpose of showing motives and feelings of deceased against defendant. The court then sustained the objection, whereupon appellant took the further exception:

“We except and contend that it is admissible for the reasons stated, and that it is prejudicial error for the court to reject the testimony.”

It was further stated by counsel at the time that they could prove these facts by this witness if he was permitted to testify. It was then offered to be proved by Myers that deceased, about seven months before the homicide, tried to persuade the witness, who was then a young single man, to pay attention to the young lady in question, and offered him his horse and buggy for that purpose at any time he might desire to use it, and in this connection stated to the witness that he was going to stop defendant from courting and paying attention to the young lady if he was big enough to do so, and he thought he was, and that this conversation was communicated to defendant prior to the homicide. Also, in this connection, appellant calls the court’s attention to the evidence in the case showing that both young men, defendant and deceased, were in love with the young lady in question, and both had courted her and made love to her, and defendant had proposed marriage and had been accepted. The deceased had substantially been discarded. Appellant’s contention, and he so testifies, was that some weeks before the homicide deceased, with three or four young men, invited him to a singing one night where he was without friends, and had all jumped on him and beat him severely, and had thereafter stated that defendant had only gotten one beating and that he had to take another one still by each one of the boys involved. Defendant further testified that on the day of the homicide deceased, in company with another, was following him around the town of Moody and, as he thought and believed, was seeking an opportunity to beat him; that he avoided him several times, but finally, just before the homicide, deceased passed him and made the remark, “How are you feeling by this time”; that the remark was made with a sneer, and defendant so construed, and that it had reference to his having been previously beaten and was intended as an insulting remark; and that he followed and immediately struck deceased with the axe handle. The state contended that deceased had not assisted in giving appellant the beating at the singing function, and that any talk or threats made by the deceased grew out of some alleged talk that defendant had made about deceased’s sister; and the state’s theory was also that deceased was not even mad at the defendant, and at the time of the difficulty was his friena, and pulled the other boys off of him, and had taken no part in the fight. The defendant’s theory was that deceased was mad at him, and the real cause of Ms madness was jealousy with reference to the young lady, in the race for whose affections they had been engaged, and in which race the appellant had come off victorious.

In this condition appellant offered the testimony set out by the witness Myers. The state objected without assigning any reason, the defendant contending that it was admissible for the purpose of showing motives and feelings of deceased towards defendant and for general purposes of the case. We are of opinion that appellant’s contention is correct. It was his side of the case. The state had introduced evidence of motives against the defendant, that he had made some remarks about the sister of deceased, and about which he and deceased had had some talk and which had been denied by appellant, and he thought deceased had accepted the statement as true, but the defendant proposed to meet all this testimony by showing the real reason of the trouble — because he (defendant) had won the affections of the young lady in question, and deceased had become mad about it and jealous — and also to explain his reasons for believing that deceased was engaged in these difficulties and troubles with the Irwin boys and seeking to induce the other young men to use his horse and buggy and interfere between appellant and his young lady sweetheart. We think this testimony clearly admissible, and see no reason why it should not have gone to the jury. It would have put a different light on the testimony in favor of appellant, had the jury believed it, and would have been an inducing cause for them to believe appellant’s side, that deceased was engaged in these troubles against him.

Another bill recites that the county attorney, cross-examining the appellant, asked him if he had not had a fight with a road overseer named Edgar Holt, and if he had not drawn a stick of cordwood on him. Appellant denied this; and further he asked him if said road overseer had not warned him to work the road, and if he had not refused to go. Some of this appellant denied. He then asked appellant if he had not paid a fine for not working the road. Appellant answered: “Yes, I paid a fine for not working the road. I paid my road tax.” The state then introduced as a witness the road overseer and went into quite a lengthy detail of the facts, conversations, and .circumstances and details of what occurred between himself and the defendant when they were talking about appellant not working the road. Under the case of Williamson v. State, 167 S. W. 360, recently decided by this court, in an opinion by Judge Harper, it was held, where the defendant puts in a request for suspended sentence, that the state may inquire if he had been arrested or prosecuted for any of these small offenses that would not be available to impeach his general rep-utation otherwise. Without going into a discussion of that question here, we are of opinion that this bill of exception shows error, in that it permitted the county attorney to go into all the facts and details of the little trouble that occurred between the road overseer and defendant as if defendant was then on trial under a plea of not guilty in a prosecution for not working the road. The state, under the authority cited, might prove the fact that he had paid a fine or had been arrested for it or convicted for it, as the case may be; but this would not authorize the state to turn aside and go into all the details of that transaction in the trial of this case. Under all the authorities, this would not be permissible.

The charge of the court is vigorously assailed from two standpoints: First, inaccuracies in regard, to the charge on manslaughter ; and, second, on intent. The court in his charge gave the following:

“The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. The act must be directly caused by the passion arising out of the provocation, if any, at the time of the killing. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some person or persons other than the party killed.”

Many objections were urged to this charge. The provocation arising at the time could hardly be sufficient to be considered adequate cause; but taken in the light of preceding circumstances and troubles, it was sufficient and required a charge on manslaughter, which the court gave, submitting that issue. The facts show, from the defendant’s standpoint, that there had been a series of provocations and insults and threats and abuses from deceased towards appellant, running back a period of some months. Ten days before the homicide, deceased and some other young men had committed an assault upon and gave appellant a very severe beating. On the day of the homicide deceased and another young man, whom appellant regarded as one of deceased’s friends and belonging to the same crowd, were following appellant around the town of Moody seeking a meeting for the purpose of bringing on another difficulty with him, as he believed, in harmony with the threats he had heard as coming from deceased against him. Deceased passed and insultingly referred to the former beating he had gotten, etc. This is appellant’s statement of the facts and circumstances bearing upon the manslaughter issue, in part at least. This was defendant’s side of it, and, in view of these matters, the court should have instructed the jury without limiting the provocation to the time of the difficulty, and also should have included these provocations given by other persons. They all occurred, and under defendant’s theory deceased was a participant in those transactions, and necessarily involved in them, and in liis mind associated with the same. Whatever the court may think oí the testimony, this was defendant’s side of it, and he had a right to have the jury pass on the law and the case from his standpoint. Therefore we are of opinion that the court erred in this portion of his charge, because defendant had the right to have the manslaughter question looked at in the light of all these matters, and under these provocations given by other parties and in connection with it. This charge of the court eliminated all those matters. We understand the rule to be that, where there is evidence that some other person or persons acted in conjunction with deceased in giving provocations, it is error for the court to prevent a consideration by the jury of the provocations given by some other than the party killed.- See Byrd v. State, 39 Texas Or. R. 614, 47 S. W. 721; Garcia v. State, 156 S. W. 939. While the other parties, except one, were not present at the time of the difficulty, yet the present difficulty, the one resulting in the homicide, can he looked to through these antecedent circumstances, and they could not be properly looked at with the other parties eliminated. In other words, the court was in error in limiting all those matters to the provocation to deceased alone, and at the time of the homicide, for the facts show in the previous difficulties other parties were acting with him. tt was an issue that other parties were engaged in the previous troubles, and the court should have properly so charged the jury.

We desire to call the court’s attention here to the fact that there was a failure to instruct the jury to view these facts and circumstances from the standpoint of the defendant. It was a sharp issue made by the state as against the defendant’s theory, and defendant’s theory against that of the state with reference to all these matters. Therefore we think it became necessary, under the peculiar circumstances of this ease, for the jury’s attention to be called to the fact that they should look at these matters from the standpoint of the defendant as they were presented to his mind, as inducing cause to do what he did.

There is another very serious question in the case involving intent. Appellant swore positively that he did not intend to kill deceased, had no idea of killing him, and that it was one of those sudden impulses that grew out of the environments already detailed and so presented to his mind that it enraged him at the time, and he struck with the axe handle. That it resulted disastrously and in the death of the deceased, it is true; but appellant swears he did not intend to kill him, and the evidence is uncontroverted that it was not a deadly weapon per se, and therefore the intent became a very serious question in the case. The court should have instructed the jury pertinently that, if there was no intent to kill, they should acquit of any degree of homicide. The court did submit the theory of intent to the jury of ] ire-sumption from the use of a weapon under article 717 of White’s xlnnotated Penal Code. That article reads this way:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the 'manner in which it was used such intention evidently appears.”

The court should also have given article 719 of White’s Annotated Penal Code. It reads thus:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.”

The court’s charge upon this subject is predicated upon the presumption arising from the use of the weapon. If the intention was not to kill, it is not to be presumed that he intended to kill, unless that intention evidently appears. This is statutory. Appellant asked a charge submitting the question of intent from a broader standpoint: That if he did not intend to kill, under the circumstances of this case, then the jury would acquit of homicide. This question was decided, as contended for by appellant, in Fitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584; Danforth v. State, 44 Tex. Cr. R. 105, 69 S. W. 159; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361; Patterson v. State, 60 S. W. 557. Judge Hurt wrote the opinion in the Fitch Case. In that case the facts show:

“The stick was about 3% or 4 feet long, and 2 or 2% inches in diameter, and was a part of a seasoned rail, and would weigh 3 or 4 pounds. When defendant stooped to pick it up, only about a foot of it was visible; the rest was in the kiln. Richey was unconscious from the time he was struck. He lived about an hour and a half.”

In this case the homicide occurred under somewhat similar circumstances, except in the Fitch Case the instrument or weapon used was much larger and heavier than that used by appellant. The one used by appellant was an axe handle three feet long, weighing one pound and nine ounces. Quoting from Judge Hurt’s opinion, we find this language:

“If the instrument or means used be not likely to produce death, we are" not permitted to presume that death was designed, unless, from the manner in which it was used, the intent to kill evidently appears. But let us suppose that the instrument be one likely to produce death, the jury may infer therefrom the intention to kill; but still it is a question for the jury as to whether the intention to kill existed or not. It does not follow that, in every killing or homicide committed with an instrument likely to produce death, the intention to kill existed. The fact of the intention to kill must be established. This can be done, however, by the character of the instrument or weapon used. If it is likely to produce death, the jury would be warranted in finding an intention to kill; but, as a matter of law, this is not the case. It is still a question of fact for the jury. The instrument used in this case was a stick of wood or piece of rail, about three or four feet long and about two inches in diameter, and weighing three or four pounds. Now, can the court assume that it was a deadly weapon, and from that assumption infer absolutely the intention to kill, and withhold that question from the jury? We think not. We are of opinion that the court should have submitted this question to the jury. This was not done. Counsel for appellant requested instructions bearing upon this question, which were refused.”

Judge Hurt, in another part of the opinion, uses this language:

“Under this state of case, to constitute murder or manslaughter, must the party intend to kill? We answer that he must.”

Patterson v. State, and. other cases cited, are in direct line and consonance with the Pitch Case. The court, we think, should not have confined the intent to presumption in regard to the killing, but should have instructed the jury plainly, independent of the statutes quoted, that, before they would be warranted to find appellant guilty of the homicide under the circumstances of this case, they must find that he intended to kill.

Por the errors indicated, the judgment is reversed and the cause remanded.

The majority are of opinion and hold the charge on manslaughter as given is sufficient, inasmuch as the court in a subsequent paragraph instructed the jury to consider all the facts and circumstances in evidence in regard to the adequacy of the provocation, except that he ought in said charge to have applied the law to acts of deceased and those acting with him.