author: TAYLOR, J. PHILLIPS, C. J.

text:
    TAYLOR COUNTY v. JARVIS et al.
    (No. 45-2708.)
    (Commission of Appeals of Texas, Section A.
    March 5, 1919.)
    Municipal Corporations @=>642(1) —• Violation on? Obbinance — Corporation Cotjbt —Appeal to County Court.
    In view of Const, art. 5, §§ 1, 22, and Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 903, 904, 921, and Code Cr. Proc. 1911, arts. 101, 894, 897, an appeal may be taken to county court from corporation court, upon conviction of violation of a city ordinance, not constituting an offense defined by the Penal Code.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by .Taylor County against Burt T. Jarvis and others. Judgment for plaintiff reversed by Court of Civil Appeals (163 S. W. 334, 168 S. W. 415), and plaintiff brings error.
    Affirmed.
    E. M. Overshiner, of Abilene, for plaintiff in error.
    D. G. Hill, of Abilene, for defendants in ■error.
   TAYLOR, J.

Harry Newton was convicted in the corporation court of the city of Abilene for alleged violation of a city ordinance. The offense, for which he was convicted, is not one defined by the Penal Code of the state, but is an offense arising solely by virtue of a city ordinance, or what may be conveniently termed a municipal offense. The defendant prosecuted an appeal from the judgment to the county court of Taylor county, and on trial of the oase de novo was again •convicted. He secured his enlargement by furnishing a convict bond executed by Bert T. Jarvis as principal and W. L. Grogan and •C. W. Tandy as sureties. Suit was filed by Taylor county against the principal and sureties on the bond to enforce its collection, and on a trial without a jury judgment was rendered for the plaintiff. The Court of Civil Appeals reversed the judgment of the lower court, and rendered judgment in favor of the defendants, on the ground that bond sued on was invalid, in that it was executed by virtue of a county court judgment in a case not ap-pealable to the county court. 163 S. W. 334.

The sole question for decision is whether the criminal case against Newton was ap-pealable to the county court. If so, the convict bond sued on was valid, and the judgment of the district court recognizing its validity should be affirmed. «

Section 1, art. 5, of the Constitution as amended in 1891 provides that:

“The judicial power of this state shall be vested in one Supreme Court, etc. * * * The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof,” etc.

In 1899 the Twenty-Sixth Legislature created a corporation court and conferred upon it, in addition to original jurisdiction over criminal cases growing out of purely municipal offenses, concurrent original jurisdiction with justice- courts oyer criminal cases arising within the city limits, under the laws of the state of which the justice court has original jurisdiction. Ver. Sayl. Oiv. Stats., arts. 903, 904.

' Section 22 of article 5 of the Constitution confers on the Legislature power to Increase, diminish, or change both the both civil and criminal jurisdiction of county courts, and provides that:

“In cases of any such change of jurisdiction, the Legislature shall also conform the jurisdiction of the other courts to such change.”

Article 894 of the Code of Criminal Procedure 1911 provides that a defendant in any criminal case, upon conviction, has the right of appeal under the rules therein prescribed. Under the provisions of article 897 of the Code appeals ffrom^.judgments rendered by the justice courts and other inferior courts in criminal cases are to be heard by the county court in those counties that do not have a criminal district court. Section 16 of the act referred to creating a corporation court provides for an appeal from the judgment of that court to the county court, and does not except therefrom judgments in criminal cases involving purely municipal offenses. Yer. Sayl. R. C. S. art. '921. Under the terms of the act, both municipal offenses and offenses arising under the laws of the state within the municipality are designated as criminal cases. Article 904, supra.

Article 101, Revised Code of Criminal Procedure 1911, provides that:

“The county court's shall have appellate jurisdiction in criminal cases of which justices of the peace and other inferior tribunals have original jurisdiction.”

' It should be noted that the only inferior tribunal, besides the justice court, having original jurisdiction to try the class of criminal cases referred to in said article, is the corporation court, and that the only court designated by the Legislature to exercise appellate jurisdiction over cases originating in that court is tire county court.

The effect of the language of said article 101 of the Code is not to extend the appellate jurisdiction of the county court of criminal cases to those cases only of which both the justice court and other inferior tribunals have concurrent original jurisdiction. The article does not state that the original jurisdiction referred to must be concurrent, nor does the language warrant such an implication. Its effect is to confer upon the county court appellate jurisdiction of criminal cases of which the justice court has original jurisdiction, and of which “other inferior tribunals” have original jurisdiction.

The question of whether corporation court eases growing out of municipal offenses are appealable to the county court was first raised in the case of Bautsch v. City of Galveston, 27 Tex. App. 342, 11 S. W. 414. The conclusion there reached is in direct conflict with the holding of the Court of Civil Appeals in its opinion in this case. In the recent case of Hickman v. State, 79 Tex. Cr. App. 125, 183 S. W. 1181, the Court of Criminal Appeals, after reviewing the authorities, including the opinion in this case, affirmed the holding in the Bautsch Case, supra, upholding the right of appeal from the corporation court to the county court in cases involving municipal offenses, as well as in cases of which both the justice court and the corporation court have original jurisdiction. This holding is, in our opinion, correct.

We recommend, therefore, that the judgment of the Court of Civil Appeals be' reversed and that of the trial court affirmed.

PHILLIPS, C. J.

Tire judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
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source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    TURNER v. STATE.
    (No. 5311.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1.Husband and Wife <3=312 — Wife Desertion — Sufficiency of Complaint— ' Allegation of Mabriage.
    Complaint for wife desertion, following the language of the statute, and alleging that defendant deserted his “wife,” naming her, held not insufficient as failing to allege defendant was married.
    2. Husband and Wife <3=314 — Wife Desertion — Instructions — Explanation of Terms.
    In a prosecution for -wife desertion, the words “justification,” “destitute,” and “necessitous,” used in the statute and the charge, did not require explanation or definition by the court.
    3. Criminal Law <⅞=1097(1,4) — Appeal-Matters Reviewable — Absence of Statement of Pacts.
    In absence of statement of facts, Court of Criminal Appeals cannot consider alleged errors in rulings on evidence and in what occurred on trial.
    Appeal from Travis County Court; D. J. Pickle, Judge.
    Paul Turner was convicted of wife desertion, and appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this ease appellant was charged in the county court of Travis county with the offense of wife desertion, upon which trial he was convicted, and his punishment fixed at a fine of $400.

The case is before us without statement of facts or bills of exception. We. have examined the complaint, and think the same is not open to the objection raised thereto by the appellant upon the ground that it did not allege that the appellant was a married man. We think the complaint follows the .language of the statute, and in alleging that the appellant deserted his “wife, Ruth May Turner,” that js sufficient allegation that he is married.

The appellant asks several special charges, the relevancy of which do not appear to this court in the absence of a statement of facts.

There were no exceptions taken to the charge of the court, or, if so, none appear in the record.

The appellant asked the court below to give the definition of some words used in tlie statute and in the charge, to wit, “justification, destitute, and necessitous.” These are words of common use, and acceptation, and we do not think require any explanation or definition.

The only other matters complained of in the motion for new trial relate to matters of evidence and what occurred on the trial of the case, and, in the absence of a statement of facts, we cannot consider same.

Complaint is made of some language used by the prosecuting attorney in his argument to the jury, but there nowhere appears in the record any bill of exception thereto or written reguest that the jury do not consider same.

There being no error apparent from the record, the judgment of the court below is affirmed.
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text:
    MOORE v. STATE.
    (No. 5313.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    Criminal Law <®=>1131(4) — -Appeal — Dismissal-Incomplete Record.
    Where the record on appeal from conviction of forgery is before the Court of Criminal Appeals without any judgment or sentence, statement of facts, or notice of appeal, the •appeal must be dismissed.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    L. E. Moore was convicted of forgery, and appeals.
    Appeal dismissed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this ease appellant was charged in the criminal district court of Tarrant county with the offense of forgery, and his punishment fixed by the verdict of the jury at four years.

The record is before us without any judgment or sentence, statement of facts, or notice of appeal, and in this case we have no option except to dismiss the appeal, which is accordingly done.

Appeal dismissed.


text:
    YATES v. STATE.
    (No. 5308.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Indictment and Information ⅞=>110(1)— Want of Necessary Allegations — Statutory Statement.
    In adultery prosecution, complaint and information containing no allegation that the habitual carnal intercourse was “without living together” was fatally defective, such words being statutory statement and requirement.
    2. Criminal Law <S=»1032(5) — Appeal—Defective Indictment.
    Insufficiency of indictments or complaints as to matters of substance may be availed of for first time in Court of Criminal Appeals.
    Appeal from Hamilton County Court; Joe H. Eidson, Judge.
    Inez Dowdy Yates was convicted of adultery, and she appeals.
    Reversed and case dismissed.
    H. E. Chesley, of Hamilton, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case the appellant was convicted in the county court of Hamilton county for the offense of adultery, and her punishment fixed at a fine of $200.

Appellant contends before this court that the evidence is not sufficient to sustain the verdict, and cites the case of Cordill v. State, 201 S. W. 181, as^ authority for that contention. We think appellant misconceives the effect of the holding in the Cordill Case, which merely held that a specific number of instances in evidence, as in that case, did not constitute habitual carnal intercourse, but in the opinion the court plainly states as follows;

“Where the state relies alone upon proof of specific instances of a limited number of acts of this character, and where the evidence excludes the idea that there were other acts, and where there are no attending circumstances upon which to found the inference that the intercourse was habitual, the proof is not sufficient.”

It will be observed from- this quotation from the opinion of the coúrt in the case cited that there is nothing there applicable to the contention nor to the facts of the instant case. This court has held that one act of intercourse corroborated by sufficient other facts would justify a conviction. Mabry v. State, 54 Tex. Cr. R. 449, 114 S. W. 378.

This case must be reversed because of the insufficiency of the complaint and information. An inspection of same as they appear the record discloses no allegation of the fact that the habitual carnal intercourse was “without living together.” This is the plain statutory statement and requirement, and its omission has been held fatal in every prosecution of wliich we are aware where the question has been before this court, whether raised in the court below or here for the first time. It is no new doctrine in this court that matters that are of substance in indictments or complaints may be availed of even in this court for the first time. In Hatch v. State, 76 Tex. Cr. R. 423, 174 S. W. 1062, Judge Prendergast, in a misdemeanor case, held that—

“If the pleading was fatally defective in the particulars mentioned or in any other material point, advantage could be taken of it, even on motion for rehearing.”

As to the necessity for the allegation in the .state’s pleading that the habitual carnal intercourse “was without living together,” see Cannedy v. State, 58 Tex. Cr. R. 184, 125 S. W. 31; Jones v. State, 29 Tex. App. 347, 16 S. W. 189; Mitten v. State, 24 Tex. App. 349, 6 S. W. 196; Pen. Code, art. 490.

Because of the insufficiency of the state’s pleadings, the judgment of the lower court is reversed and the ease dismissed.
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author: MORROW, J.

text:
    HAFLEY v. STATE.
    (No. 5307.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    Indictment and Information <@=110(1)— Want of Necessaby Allegations — Statu-toby Statement.
    In adultery prosecution, indictment containing no allegation that the habitual carnal intercourse was “without living together” held fatally defective; such words being statutory statement and requirement.
    Appeal from Hamilton County Court; Joe. H. Eidson, Judge.
    Ernest Hailey was convicted of adultery, and he appeals.
    Reversed, and cause. dismissed.
    H. E. Chesley, of Hamilton, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant is convicted of adultery,

This is a companion ease to Yates v. State (No. 5308) 209 S. W. 407, this day decided. The information contains the same vice as that referred to in Yates v. State, namely, it fails to allege that the parties were not living together, the absence of which allegation is fatal to the indictment. See Cannedy v. State, 58 Tex. Cr. R. 184, 125 S. W. 31. Since the case must be reversed and dismissed because of the insufficiency of the indictment, we have not made a critical examination of the evidence. We note the contention, however, that the case of Cordill v. State, 201 S. W. 181, is conclusive against the state. This, we think, is a misinterpretation of the effect of that decision. In that case there was proof by competent and sufficient evidence of three acts of intercourse, and the accomplice testified to five or six additional ones. It was affirmatively shown, however, that these acts were all, and there was therefore no room for inference of habitual intercourse from other circumstances. It is said in that case:

“It is to be remembered, however, that in this class of cases it is generally necessary to depend, at least in part, upon circumstantial evidence to establish the offense. * * * And occasional acts of illicit intercourse are potent circumstances when accompanied by other pl-oof tending to\show that the relation was habitual, and when so attended and lead to a conviction, it would-be sustained, although the number of actual acts proved is very limited, or even proved alone by circumstances.”

The rule stated by Mr. Wharton, in his work on Criminal Evidence (page 1668, vol. 2), is as follows:

“In adultery, from the very nature of the offense, direct proof can seldom be adduced; hence facts and circumstances are relevant from which guilt can be established, but this must be to a degree that will satisfy the jury beyond a reasonable doubt. The circumstances that are common to the offense, such as mutual disposition, opportunity, and, frequently, reputation for chastity in connection with testimony showing opportunity, are all relevant.”

In Mabry v. State, 54 Tex. Cr. R. 450, 114 S. W. 379, a charge on the subject in the following language was approved:

“The gist of the offense in this case as charged is that the parties had habitual carnal intercourse with each other; that such intercourse (if any) was habitual. A single act' of intercourse would not be sufficient to warrant a conviction. The jury are to determine from all the facts in the case whether the intercourse (if any) was habitual, and unless you so find you will acquit the defendant.”

This much has been said in view of another trial.

Because of the insufficiency of the indictment, the judgment is reversed, and the cause dismissed.


text:
    CROCKETT v. STATE.
    (No. 5168.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    Intoxicating Liquobs <@=236 (8) — Sale in Local Option Tebeitoby — Sufficiency of Evidence.
    Evidence held to sustain conviction for pursuing business of selling intoxicating liquors in local option territory.
    Appeal from District Court, Lamar County ; Ben H. Denton, Judge.
    .Annie Crockett was convicted of pursuing the business of selling intoxicating liquors in a locality in which the sale of such liquor was prohibited under local option law, and she appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for pursuing the business of selling intoxicating liquors in a locality in which the sale of such liquors was prohibited under the local option prohibition law.

The state introduced a witness who.testified that he purchased whisky from appellant on three separate occasions during February, 1918; that at the time of each pur■chase lie saw other intoxicating liquors there; that there was a lot, five, or six quart bottles, in a trunk; that the appellant said ■she was selling whisky there, and requested witness to lend her money, saying "‘she could make good money selling whisky.” He identified the whisky produced on the trial which he said was the same bought from appellant. An officer testified that on two occasions in February or March, 1918, he had raided the house in which appellant and some other ne-groes lived, and found a trunk of beer there on one occasion, and a half trunk full at another time. The sheriff testified that the prosecuting witness Hays delivered to him the whisky gotten on each of three occasions. The sales were denied by appellant. She also claimed the beer found on the premises belonged to another person residing in the same house, and that she had received no whisky by express, except one gallon which she used herself.

This is not a case in which the evidence consisted alone of isolated sales. The admission of appellant that she was selling whisky, and that she could make good money out of it, together with the evidence showing intoxicating liquor in her possession, or on her premises on several occasions, were circumstances supplementing the direct evidence of three sales, presenting a record on which we would not be authorized to reverse for the insufficiency of the evidence. Robinson v. State, 66 Tex. Or. R. 892, 147 S. W. 245.

There are no other questions raised.

The judgment is affirmed.
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author: LATTIMORB, J.

text:
    HENTON v. STATE.
    (No. 5184.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Criminal Raw <@=»1099(6) — Appeal — Statement of Facts Filed Late.
    Statement of facts, filed in clerk’s office after expiration of time allowed by court for preparing and filing statement of facts and bill of exceptions, cannot be considered by Court of Criminal Appeals, where record contains no order extending time for filing.
    2. Bigamy <§=»4 — Indictment — Sufficiency.
    Indictment' for bigamy, charging that defendant unlawfully married a woman (naming her), when having a lawful former wife then living (naming her by her maiden name and her name after marriage to defendant), to whom he had theretofore been lawfully married, held sufficient.
    Appeal from District Court, Smith County ; J. R. Warren, Judge.
    Wise Henton was convicted of bigamy, and appeals.
    Affirmed.
    Fitzgerald & Ramey and J. A. Bulloch, all of Tyler, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted in the district court of Smith county of the offense of bigamy, and in a proper manner he brings the case to this court for revision.

From the record it appears that appellant’s motion was overruled on June 10, 1918, and an order then made by the trial court granting 60 days “from this date in which to prepare and file a statement of facts and bill of exceptions.” We find no order extending such time in the record. The statement of facts was filed in the clerk’s office at Tyler on August 17th, which was after the expiration of the time allowed by the court, hence same cannot be considered by us.

The special charges asked by appellant seem to be covered by the main charge, and but one point is presented for our serious consideration, and that is the sufficiency of the indictment, which was questioned by a motion to quash and a motion in arrest of judgment. The charging part of the indictment is as follows:

“That one Wise Henton did then and there unlawfully marry Bessie Scott, he, the .said Wise Henton, then and there having a lawful former wife then living, to wit, ■ Florence Hen-ton, née Florence Bullock, to whom he had theretofore been lawfully married.”

The statute defining bigamy is as follows:

“If any person who has a former wife or husband living shall marry another in this state, such person shall be punished by imprisonment in the state penitentiary for a term' not less than two nor more than five years.”

Under this statute it is only necessary to allege that at the time of the marriage of the accused to Bessie Scott in Smith county, Tex., he had a former spouse then living, in order to bring the allegations within the terms of the statute; but it has been held necessary, as a matter of pleading and in order to make the indictment full and specific, that it should allege the name of the former spouse, if known, as well as that of the person with whom the illegal marriage is contracted. In the McAfee Case, 88 Tex. Cr. R. 127, 41 S. W. 627, the indictment charged the accused with unlawfully marrying O. B., “she then and there having a husband then living.” Judge Henderson in that case held that the indictment did not come up to the statute, in that it did not allege that the accused had a former husband then living — further holding that it would be entirely consistent to contend that C. B. came within the language of the indictmept, “then and there having a husband then living,” and that there was. nothing in the indictment to show that the “husband | then living” was other than O. B. The name of the former spouse of the accused was not in the indictment, and. the court held the indictment bad.

In Vinsant's Case, 42 Tex. Cr. R. 413, 60 S. W. 550, the indictment followed the language of the statute almost literally, except that it did not name the party who was Vin-sant’s former wife, and the court, citing only the McAfee Case, held the indictment bad.

In the Nichelson Case, 53 Tex. Cr. R. 631, 111 S. W. 414, the indictment charged that Nichelson did unlawfully marry Ida Am-macher, he, the said Nichelson, then and there having a former living and lawful wife, to wit, Mary Nichelson. This conviction was affirmed; the court holding the indictment sufficient, though the direct point of attack was different from the point here under immediate consideration.

In the Bryan Case, 54 Tex. Cr. R. 18, 111 S. W. 744, the indictment, charged the accused with marrying Minnie Robinson, he then and there having a lawful former wife then living, but the former wife was not named in the indictment. The opinion in the Bryan Case quotes several pages of the opinion in the McAfee Case, cites the Vinsant Case, and holds the indictment insufficient.

It will be observed that the name of the former wife was left out of each of the indictments held insufficient, and in the only indictment considered by this court in which the name of the former wife was alleged— that is, Nichelson’s Case — the indictment was upheld.

In the Morville Case, 63 Tex. Cr. R. 555, 341 S. W. 102, this court, through the Presiding Judge, upheld the indictment, which, in our opinion, charges the same thing in law as the indictment in the present case. There is a great deal of verbiage in the Morville Case, but in the opinion of the writer that portion of said indictment which charges “that the said ⅜ * * Morville, at the time of his said marriage with Jessie Osteen, had theretofore been, and was then and there, lawfully married to said Theresa Morville, and at the time of the said marriage with said Jessie Osteen the said Theresa * *' * was then and there living,” charges no more, with all its useless verbiage, than does the simple statement that Morville unlawfully married Jessie Osteen, he then and there having a lawful former wife, to wit, Theresa, then living.

Judge Henderson, in the Burton Case, 51 Tex. Cr. R. 198, 101 S. W. 227, says that the word “former” in this statute designates a wife had prior to the one then being married, and certainly, if the indictment in the instant case alleges that Wise Henton unlawfully married Bessie Scott, he then and there having a living former wife, to wit, Florence Henton, then living, the indictment charges all that is necessary. It is not within the objections made in the McAfee Case, the Bryan Case, or the Vinsant Case, above cited, but, on the contrary, charges every statutory ingredient of bigamy, and fully apprises the appellant of the person who is claimed to be his lawful former wife then living.

In our opinion the indictment is sufficient, and, there being no further errors in the record, the judgment of the lower court will be affirmed.

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text:
    HOPSON v. STATE.
    (No. 5284.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Criminal Law <§=^3.104(3) — Misdemeanors.
    In misdemeanor case, where there is no statement of facts copied in transcript or certified by clerk, appellate court cannot consider what purports to be statement of facts filed in a separate document.
    2. Assault and Battery <§=>54 — Aggravated Assault on Female.
    In order to convict of aggravated assault upon a female, it is not necessary to show that there was created in mind of prosecutrix a sense of shame or other disagreeable emotion of mind.
    3. Criminal Law <§p>761(6) — Aggravated Assault — Instructions Assuming Facts.
    In prosecution for aggravated assault upon female, court may assume in its charge fact that defendant is adult male person and prosecutrix a female, unless evidence controverts issue.
    4. Criminal Law <§=>1144(3.4) — Review — Instructions.
    Where main charge appears to properly present law of case and there is no evidence before appellate court which would necessitate giving of such charge, appellate court will hold that requested charge was properly refused'.
    5. Assault and Battery <§=>54 — Aggravated Assault on Female.
    In prosecution for aggravated assault on female, that female was not adult would not render assault simple assault.
    6. Assault and Battery <§=>54 — Aggravated Assault — Assault on Female.
    In order to convict one of aggravated assault upon female, it is not necessary to show that indecent familiarity injured person of pros-ecutrix.
    Appeal from Angelina County Court; B. B. Robb, Judge.
    Steve Hopson was convicted of aggravated assault, and he appeals.
    Affirmed.
    K. W. Denman, of Lubkin, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in this case of an aggravated assault upon an indictment containing three counts, each of which contains the allegation of an as>-sault, and that the appellant was an adult male and the prosecutrix a female; the second and third counts presenting different phases of assault as made by the statutes of this state.

There is no statement of facts copied in the transcript or certified by the clerk of the county court of Angelina county, and as this is a misdemeanor case, under the uniform holdings of this court, we cannot consider what purports to he a statement of facts filed in a separate document and brought to this court in that condition. Carney v. State, 63 Tex. Cr. R. 370, 140 S. W. 440; Wagoner y. State, 63 Tex. Cr. R. 180, 140 S. W. 339; Brogdon v. State, 63 Tex. Cr. R. 473, 140 S. W. 353; Guill v. State, 66 Tex. Cr. R. 332, 146 S. W. 198; Johnson v. State, 79 Tex. Cr. R. 544, 186 S. W. 841.

Appellant presents some exceptions to the court’s charge: First, because it fails to submit the question of intent to injure; second, because the same fails to submit to the jury whether there was'-created in the mind of the prosecutrix the sense of shame or other disagreeable emotion of the mind; third, that the court assumes that the defendant is an adult male and that the prosecutrix is a female; and, fourth, because the court failed to charge on simple assault.

Noticing them in their order, it appears to us that the court did charge on the intent to injure in the main charge, in his definition of an “assault,” one of the elements of which is stated to be that it must be unlawful violence to the person of another with intent to injure. As to the second objection, there is nothing in the statute which requires that there be created in the mind of the prosecutrix by an assault a sense of shame, etc., and without any statement of faqts before us we cannot tell whether there was any contest upon this issue, and no evidence of anything showing the necessity for such instruction is contained in the bill of exceptions. As to the third exception, it has been held by this court more than once that, unless the evidence controverts the issue, the court may assume in its charge the fact that the defendant is an adult male person and the prosecutrix a female, in a case where that is the ground of aggravation. These exceptions to the court’s charge all appear, in one way or another, in special requested charges to his main charge; but as the main charge appears to properly present the law of the case, and as we have no evidence before us, either in bill of exceptions to the court’s action in refusing the special charges, or otherwise, which would necessitate tne giving of such charges, the same, in our opinion, were properly refused by the court.

The requested charge on simple assault seems to be predicated on the proposition that the evidence shows that the prose-cutrix, Rena Bingham, is not an adult. This would not inject the element of simple assault in the case and would not make such a charge proper. Whether Rena Bingham was an adult or not is not an issue, it being only alleged that she was a female. Defendant’s special charge that they cannot convict even though he had been indecently familiar with the prosecutrix, unless his acts injured her person, do not present a correct proposition of law. Rogers v. State, 40 Tex. Cr. R. 355, 50 S. W. 338; Slawson v. State, 39 Tex. Cr. R. 176, 45 S. W. 575, ,73 Am. St. Rep. 914.

The record, as before us, presents no reversible error, and the judgment of the -lower court will be affirmed.
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text:
    LAGRONE v. STATE.
    (No. 4815.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Homicide <@=5300(3) — Instruction—Self-Defense.
    In homicide prosecution involving self-defense issue, instruction on the law of self-defense held proper.
    2. Homicide <@=5300(7) — Instructions—Self-Defense — Apprehension of Danger.
    In homicide prosecution defended on ground of self-defense and involving question of whether^ sufficient time elapsed between first and second shot for defendant to determine whether danger to his life had ceased, an instruction on the law, authorizing defendant to ■ continue to shoot until the danger ceased as viewed from his standpoint, would have been proper.
    3. Homicide <@=5300(14) — Instruction—Self-Defense — Apprehension of Danger.
    In homicide prosecution, court properly refused instruction to acquit if first shot was fired in self-defense and insufficient time had elapsed between the first and second shots for defendant to determine that danger had ceased; defendant’s right to continue shooting having been dependent upon whether he in fact shot second time under apprehension of danger, which phase the requested instruction ignored.
    4. Homicide <@=5119 — Self-Defense—Apprehension of Danger — Second Shot.
    Whether defendant, who had shot in self-defense, was justified in shooting the second time, depends upon whether he continued to shoot under apprehension of danger, and not upon whether sufficient time elapsed between first and second shots in which to determine that danger had ceased. . *
    5. Homicide <@=5309(4) — Manslaughter—Firing of Second Shot — Instruction.
    In homicide prosecution, defended on ground of self-defense and involving question of whether danger to defendant had been passed before he shot the second time, refusal of instruction as to law of manslaughter applicable in event that jury found first shot was justified, and second was not, was error; for, if second shot had ■been fired after danger had ceased but under the influence of a sudden passion, defendant’s offense might not have been higher than man- - slaughter.
    6. Criminal Raw <S=^419, 420(11) — Evidence —Hearsay—Homicide.
    In homicide prosecution, evidence that defendant had told third party during a conversation that the officers had told deceased to kill him, and that third party was going to get defendant, into trouble, was inadmissible, where offered as independent testimony and not as part of any conversation drawn out by state, being hearsay.
    7. Criminal Raw <@=^413(1) — Evidence—Self-Serving Statement.
    In criminal prosecution, evidence that defendant had told third party during conversation that the officers had told deceased to kill him, and that third party was going to get defendant into trouble, was inadmissible, where offered as independent testimony and not as part of any conversation drawn out by state, being self-serving.
    8. Criminal Raw <S=p823(9) — Instructions— Burden oe Proof. '
    Instruction that jury should consider whether defendant was guilty of manslaughter if it entertained a reasonable doubt of his guilt of murder, and instruction to find him guilty of manslaughter if jury believed from the evidence beyond reasonable doubt that defendant had killed deceased in sudden passion, held, when considered together, not to shift burden of proof to defendant, and to make plain that doubt as to whether defendant was guilty of manslaughter or murder should be resolved 'in favor of defendant.
    9. Homicide <®=>307(1) — Degree of . Offense —Instruction.
    In homicide prosecution involving question of whether defendant was guilty of murder or manslaughter, court should so frame its charge as to leave no question that, if there is a doubt between murder and manslaughter, conviction should be for no higher grade of offense than manslaughter.
    10. Homicide <®=»109 — Self-Defense—Antecedent Threats.
    That defendant had made antecedent threats did not deprive him of the right to defend himself.
    11. Homicide <§=⅛89 — Self-Defense—Evidence.
    In homicide prosecution defended on ground of self-defense and involving questions whether the difficulty was initiated by the demonstration qf the deceased or by defendant’s assault, jury was entitled to consider previous difficulties and the relation of the parties and their mutual expressions of ill will against one another.
    12. Criminal Raw <§=»673(2) — Self-Defense —Threats—Rimiting Effect of Evidence.
    In homicide prosecution involving question of whether defendant was led to shoot by deceased’s demonstration in view of previous threats, it was not incumbent upon court to qualify or limit the purpose for which evidence of threats was before the jury.
    13. Criminal Raw <®=864 — 1Trial—Communi-cations Between Judge and Jury.
    Verbal communications of court with jurors touching the case on trial, after the retirement of the jury, should be attempted only upon rare occasions and impelled by soundest reasons, and an effort should be made to avoid impressing jury that court entertains any impression of the case which he wishes them to know.
    14. Criminal Raw <®=>655(9) — Triai>-Con-duct of Court.
    The trial judge should maintain no partiality and should avoid impressing jury with any of his views.
    Appeal from District Court, Upsliur County; J. R. Warren, Judge.
    D. R. Ragrone was qonvicted of murder, and appeals.
    Reversed.
    Sanders & Florence, of Gilmer, and Simpson, Rasseter & Gentry, of Tyler, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for murder, with punishment fixed at confinement in the penitentiary for five years.

The appellant shot and killed deceased, using a shotgun, and firing two shots. The deceased was the husband of appellant’s daughter. There was evidence that he had treated her harshly; that there was bad feeling between the parties, and mutual threats. The deceased was on his wagon, which was empty-and had a frame for hauling wood. There was evidence that there was a coat lying near the deceased; and the facts show that appellant, while walking on the public road, met the deceased, and from his testimony the theory arises that the deceased made a demonstration, which was interpreted by the appellant as an effort to get a pistol or gun from the coat, and that from this demonstration and the previous threats of the deceased the issue of self-defense arose. From the state’s testimony, developed from the son of the deceased who was an eyewitness, there was no demonstration by the deceased, and between the firing of the first and second shots deceased asked appellant not to shoot again, as he might recover from the injury already received.

The issues of murder, manslaughter, self-defense, and the law of communicated threats were submitted in a charge to which the appellant has addressed several criticisms. The definition of “malice aforethought” was one that has been approved on previous occasions. Davis v. State, 204 S. W. 652; Tooney v. State, 5 Tex. App. 163; Gallaher v. State, 28 Tex. App. 266, 12 S. W. 1087.

The law of self-defense as embodied in the court’s charge, we think, is subject to no just criticism addressed to it by the appellant. It submitted without qualification the law of self-defense upon apparent danger, and the law of self-defense arising out of a demonstration manifesting an intention to execute a threat previously communicated to appellant. In addition to this, the court, at the request of appellant, instructed the jury that, if appellant feared an attack from the deceased, he had a right to arm himself, and that the possession of a shotgun at the time of the homicide was no violation of law, and would not authorize a conviction; and also instructed that, in determining whether the defendant acted in self-defense, it would be the duty of the jury to view the facts and circumstances from his standpoint as it reasonably appeared to him at' the time, and in so doing they might consider the defendant’s knowledge of the character of the deceased and threats made by him against the appellant of which he had information, and the previous acts and conduct of deceased.

One of the special charges requested and refused would have advised the jury that if the first shot was fired in self-defense and not sufficient time had elapsed between the first and second shot for the defendant to determine that the danger to his life had ceased, or if they had a reasonable doubt thereof, to acquit. It occurs to us that, if the appellant had requested the court to instruct the jury on the law authorizing him to continue to shoot until the danger ceased as viewed from his standpoint, it would have been proper for the court to give such charge. The one quoted, however, does not appear to be in substance such a charge, but instructs an acquittal if there was not sufficient time elapsed within which to determine that the danger had ceased, thereby basing the right to continue to shoot, not upon whether the appellant at the time that he fired the second shot was acting under the apprehension of danger, but upon whether there had been a sufficient lapse of time for him to determine the contrary, whether in fact he had determined the contrary or not. From the state’s evidence it appeared that there was an interval between the two shots, in which interval the deceased requested appellant not to shoot any more, stating that he might recover from the wound already received. From this statement, whatever time had elapsed, the jury might have determined that the danger had ceased, and appellant had notice thereof, and we think the court was justified in refusing to give the requested charge, ignoring this phase.

Appellant excepted to the charge on the law of manslaughter because of its failure to inform the jury of the law that would govern in the event they found the first shot fired by appellant was justifiable and the second shot was not. Presenting the same view more in detail, the appellant presented a special charge, to the refusal of which exception was duly reserved.

The main charge on manslaughter is as follows:

“Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in evidence in the case transpiring before the homicide; and if you find that, by reason thereof, the defendant’s mind, at the time of the killing, was incapable of cool reflection, and that such facts, if any, and circumstances, if any, were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation,.if any, satisfies the requirements of the law; and, so, in this case, you will consider the threats, if any, of the deceased, and the former conduct, if any, of the deceased toward the defendant, and all the other facts and circumstances in evidence transpiring before the homicide in determining the condition of the defendant’s mind at the time of the killing, and the adequacy of the cause, if any, producing such condition.”

The law applicable to a state of facts such as arises out of the state’s testimony touching the incidents of the homicide is illustrated by thé quotation from the opinion of Judge Willson in Hobbs v. State, 16 Tex. App. 622, as follows :

“Again, the learned judge instructed the jury that the defendant’s right of self-defense ceased when the danger, real or apparent, had ceased. This was .correct. But suppose, in defending himself against a violent attack, or a supposed violent attack, he became excited by passion to such an extent as to render his mind incapable of cool reflection, and under this state of excitement he carried his right of self-defense too far, used more force than was necessary to his protection, fired one or more shots after all real or apparent danger had ceased, but before his mind had had time to cool, and from wounds thus inflicted death had resulted, would this have been murder? We think not. Suppose the first shot fired by the defendant was justifiable, but that the two shots fired by him which struck Whiteley were fired after the danger, real or apparent, which threatened the defendant had ceased, but that he fired the said shots under the immediate influence of sudden passion, arising from the supposed deadly conflict in which an instant before he had been engaged, and fired them before he had had reasonable ‘cooling time,’ reasonable time to realize that he was no longer in any danger, would not this state of facts, if the shots had killed Whiteley, constitute manslaughter and not murder? We think a homicide under these circumstances would not be of a higher grade than manslaughter.”

If appellant fired the first shot in self-defense, and fired the second one after the danger had ceased, as viewed from his standpoint, his offense might not have been higher than manslaughter, if the jury believed that the second shot, though wrongfully fired, was fired under the influence of a sudden passion aroused by an adequate cause. The appellant having sought by objection to the failure to embody this phase of the law in the main charge, and by requesting a special charge embracing it, we are of opinion that the court was in error in failing to either amend his main charge, or give the special charge requested. Judge Ramsey, discussing the same question in Ross v. State, 53 Tex. Or. R. 279, 109 S. W. 195, said:

“It has been said, in discussing the matter of cooling time, that, like the provocation itself, it must depend upon the nature of man and the laws of the human mind as well as upon the nature and circumstances of the provocation. That no precise time, therefore, ‘in hours or minutes, can be laid down by the courts as a rule of law within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the very principle on which provocation and passion are allowed to be shown in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case, and in a majority of cases is one peculiarly within the province of the jury to determine. * * * The condition of the mind is not a question of time or law, but one of fact to be left to the determination of ' the jury. Jones v. State, 33 Tex. Cr. R. 492 [29 S. W. 1082, 47 Am. St. Rop. 46]; Watson v. State, 50 Tex. Cr. R. 171 [95 S. W. 115].”'

The bill of exceptions complaining of the refusal of the court to permit him to prove that in a conversation with Powers the appellant had told Powers that the officers had told deceased to kill him, and further said that he (Powers) was going to get the appellant into trouble, does not show error. As presented, the testimony appears to be hearsay and self-serving. It does not appear to be a part of any conversation drawn out by the state, but is offered as independent testimony by the appellant.

We also think there was no error in rejecting the proffered testimony of Mitchell that some time before the homicide he had heard the deceased say, “Damn them! I will get even with them yet,” for the reason that the bill discloses no circumstance or fact indicating that the remark or threat was made concerning the appellant. Gregory v. State, 48 S. W. 578; Highsmith v. State, 41 Tex. Cr. R. 37, 50 S. W. 723, 51 S. W. 919; Heffington v. State, 41 Tex. Cr. R. 318, 54 S. W. 755.

The jury were required, if they found beyond a reasonable doubt that appellant was guilty of culpable homicide and entertained a reasonable doubt of his guilt of murder, that they would consider whether he was guilty of manslaughter, and were further told that if they believed from the evidence beyond a reasonable doubt that he with a deadly weapon, in a sudden passion aroused by an adequate cause, as the same has been heretofore explained, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, killed the deceased, to find him guilty of manslaughter. The appellant claims that the effect of this charge was to shift the burden of proof. Considering the paragraphs of the charge together, we think it was made plain to the jury that, believing the appellant guilty of some grade of unlawful homicide, they should resolve any doubt existing in favor of the appellant and acquit him of the higher offense. This construction was put upon a similar charge in the case of Hendricks v. State, 69 Tex. Cr. R. 209, 154 S. W. 1005. See, also, Best v. State, 58 Tex. Cr. R. 331, 125 S. W. 909; Spangler v. State, 42 Tex. Cr. R. 233, 61 S. W. 314.

We are referred to Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875, and Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 822, as sustaining appellant’s position that the charge given placed an undue burden upon the appellant. These cases are distinguishable from the case at bar on account of the fact that in neither of them do we find any qualifying clause such as was contained in the charge in this case and in the Hendricks’ Case, supra, and for the further reason that those cases were dealing with matters made by statute adequate cause to reduce the homicide to manslaughter. However, we believe that the trial court, in giving .a charge on manslaughter upon another trial, should so frame his charge as to leave no question that, if they reject the theory of self-defense and entertain a reasonable doubt as between the offenses of murder and manslaughter, the conviction should be for no higher grade of offense than manslaughter.

In our opinion there was no error in refusing the request of appellant to instruct the jury that the evidence of, threats made by the appellant against the life of deceased will not deprive appellant of the right of self-defense. It is quite true that the fact that appellant had made antecedent threats would not deprive him of the right to defend himself, but the court in its charge did not intimate to the jury that it would do so, nor in any sense limit the defendant’s right of self-defense. Mr. Branch, in his Criminal Law (section 479), says:

“Antecedent threats made by the defendant against the deceased are admissible to show motive or malice, or to shed light upon the issue of who began the difficulty” — citing McKinney v. State, 8 Tex. App. 626; Anderson v. State, 15 Tex. App. 447; Erizzell v. State, 30 Tex. App. 55, 16 S. W. 751; Brown v. State, 56 Tex. Cr. R. 389, 120 S. W. 444; McCoy v. State, 27 Tex. App. 431, 11 S. W. 454; Cline v. State, 33 Tex. Cr. R. 491, 27 S. W. 128; Owen v. State, 52 Tex. Cr. R. 68, 105 S. W. 513.

There was an issue in the ease with reference to what motive actuated the appellant when he fired at the deceased, and as to whether the difficulty was initiated by the demonstration of the deceased, or by the assault made by the defendant. In the solution of these conflicting theories, the jury were entitled to consider the previous difficulties, and the relation of the parties, and their mutual expressions of ill will one against the other. It was not incumbent upon the court, in our judgment, to qualify or limit the purpose for which the evidence of threats was before the jury. The case of Stanley v. State, 62 Tex. Cr. R. 306, 137 S. W. 703, which is relied upon by the appellant, is expressly based upon the principle laid down in the case of Ball v. State, 29 Tex. App. 107, 14 S. W. 1012, to the effect that, when the court finds occasion in his charge to place a limitation upon the right of self-defense, it is often necessary, in the protection of the rights of the accused, to explain to the jury that certain acts of the accused at the time of the homicide are not to be taken as a limitation of his right of self-defense. This principle, so far as we are aware, unless the ease of Stanley v. State, supra, is an exception, has been confined to cases in which the right of self-defense is qualified. See Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Smith v. State, 195 S. W. 598, and oases therein cited. In so far, if any, as the Stanley Case is in conflict with this rule, we think it should not be followed.

The jury, after deliberating upon their verdict for some time, reported their disagreement. The trial judge called them into court and gave them certain verbal instructions, which were made the basis of objection at the time and complaint here. The disposition of this appeal is upon other grounds, and the matter mentioned is not likely to recur. It is a most delicate undertaking to have verbal communications with the jurors touching the case on trial after the retirement of the jury, and should be attempted only upon rare occasions and impelled by the soundest reasons, and too much caution cannot be exercised in the effort to avoid impressing the jury with the idea that the court entertains any impressions of the case which he wishes them to know, and putting before them matters which should not enter into or affect their deliberations, such as the expense incident to a mistrial, should in all cases be avoided. To the jury the language and conduct of the trial court have a special and peculiar weight. Simmons v. State, 55 Tex. Cr. R, 446, 117 S. W. 141; Kelly v. State, 33 Tex. Cr. R. 31, 24 S. W. 295; Jones v. State, 51 S. W. 950. The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret. Kirk v. State, 35 Tex. Or. R. 224, 32 S. W. 1045; Crook v. State, 27 Tex. App. 198, 11 S. W. 444; Anderson v. State, 202 S. W. 946.

A reversal of the judgment is ordered on account of the error in the charge pointed out.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DATTIMORE, J.

text:
    DRAWHORN v. STATE.
    (No. 5301.)
    (Court of Criminal Appeals of Texas.
    Eeb. 19, 1919.)
    1. Criminal Law <⅜=>1144(19) — Bill or Exceptions — Refusal—Failure to File New Bill.
    Where the record recited that the trial courj refused defendant’s bill of exceptions and theii prepared and filed a new one, it being the duty of the court to file and present a correct bill of exceptions, in the absence of same in the record the refused bill will be considered as though approved and filed.
    2. Cbiminal Law <S==>1111(5) — Bill oe Exceptions — Conflicting Statements — Review.
    Where the bill of exceptions sets forth remarks of the district attorney as to defendant’s failure to procure witnesses to prove his reputation, but also sets forth a statement of the district attorney denying making such remarks and stating fully what was said by him, there was no reversible error shown.
    3. Cbiminal Law <®=>1124(4) — Motion fob New T&ial — Bill of Exceptions — Inclusion of Evidence.
    Where defendant’s motion for new trial was overruled after hearing the evidence thereon, and such evidence was not presented by any bill of exceptions, error in the court’s action was not shown.
    4. Cbiminal Law <⅜»1090(8) — Necessity of Bill of E&ceptions — Evidence.
    Where the fact that a witness was permitted to state what defendant told him while under arrest was set forth only in defendant’s motion for new trial, and no bill of exceptions was preserved in regard thereto, it cannot be considered on appeal.
    5. Homicide <⅜^>257(2) — Evidence — Sufficiency-Testimony of Accused.'
    In p. prosecution for assault to murder, contention that defendant’s gun was “lame” when he assaulted the officer was not borne out by the .record, ⅛ view of his own testimony that the gun was in the same condition as when ■hunting with it the previous day, etc.
    Appeal from District Court, Henderson ■County; John S. Prince, Judge.
    Bess Drawhom -was convicted of assault to murder, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

In this case appellant was charged in the district court of Henderson county with the offense of assault to murder, and upon trial was convicted and his punishment assessed at confinement in the penitentiary for seven years.

There was no objection in the court below to the indictment or to anything transpiring upon the trial, as appears from the record, except the complaint made of certain statements attributed to the district attorney in his closing remarks to the jury. This objection is presented to this court by appel- , lant’s bill of exceptions No. 1. An examination of this bill discloses that the court made the following order upon the same:

“This bill of exceptions is refused, because it in no wise presents the matters as I recollect that they occurred, and being so different and so much at variance with the court’s recollection of tl(e facts that I have made out and filed what I conceive to be a true and correct bill of exceptions correctly presenting just what did occur and nothing more.”

In view of this order, we have carefully examined the record, but find no other' bill of exceptions than this one, and under the ruling heretofore made by this court and under the statute, it being the duty of the trial court to file and present a correct bill of exceptions, in the absence of same the refused bill will be considered as though approved and filed. Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Butler v. State, 64 Tex. Cr. R. 482, 142 S. W. 904. We have therefore considered this entire bill of exceptions as though the same had been approved, and observe that it consists of a statement setting forth remarks attributed to the district attorney in his closing argument as to the failure of appellant to put witnesses on the stand to prove his general reputation; but we also observe that said bill sets out, as a part thereof, a lengthy statement of the district attorney in which he denies having made the statements set out in said bill by appellant as having been made by him, and also states fully what was said by him, and under such statement'no reversible error is shown. Both these statements appearing in this bill and we being compelled to take same as it appears in the record, we are unable to determine which one of said statements is correct, and therefore cannot say that any error was committed as to the matter set forth.

This same matter is set up by appellant in his motion for- new trial, and, upon a statutory traverse of this ground of the motion by the district attorney, the court, after hearing evidence thereon, overruled said motion. The evidence heard with relation thereto is not preserved or presented by any bill of exception, and we are unable to see any error in the court’s action.

Appellant further complains because the evidence shows guilt of no higher grade than that of aggravated assault. This matter was fully submitted to the jury by the trial court, and there is ample evidence in the record to sustain their finding.

Complaint is made also of the fact that a certain witness was permitted to state what the appellant told him while under arrest; but, as this matter is presented only in the motion for new trial and no bill of exceptions was preserved to the court’s action, we cannot consider same.

The only remaining ground of objection was that the appellant’s gun was “lame” and would not shoot at the time of the alleged assault. This contention is not borne out by the record, as appellant himself testified that he had been hunting with the gun in the same condition that it was when it was snapped by him in the face of the arresting officer. He also states that he had put two shells in the gun the day before of the same kind, and that with one of them -he killed a duck, and was just in the act of starting

.hunting with this gun at the time this difficulty occurred.

Finding no error in the record, the judgment of the lower court is affirmed.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■MORROW, J.

text:
    CASTLE v. STATE.
    (No. 5296.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Homicide <©=3300(12) — Assault with Intent to Mubdeb — Instbtjctions — Self-Defense.
    In a prosecution for assault to murder, where charge on self-defense did not plainly show that burden of proof was upon state to establish facts constituting unlawful assault beyond reasonable doubt, it was error to refuse to correct charge.
    2. Homicide <9=3300(8) — Assault with Intent TO Mubdeb — INSTEUCTION.
    In prosecution for assault with intent to murder, facts held to raise issue of actual danger so as to require a charge on presumption of intent to kill from use of deadly weapon by injured party.

      Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Yerner Castle was convicted for assault with intent to murder, and lie appeals.
    Reversed and remanded.
    W. W. Kirk, of Plainview, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   ■MORROW, J.

The appeal is from a conviction for assault with intent to murder.

Appellant cut the injured party with a pocketknife, causing some serious injuries. There was proof of previous difficulties and threats by the injured party against appellant. Appellant’s version of the difficulty was to the effect that he came upon the injured party unexpectedly on walking into the postoffice. He claimed that as soon as he and Echols, the injured party, recognized each other, Echols made a quick grab for his hip pocket, and that he (appellant) made a rush upon him to keep from being killed; that he acted as quick as he could because he saw he had no chance to retreat; that he had been whittling and had his knife in his hand and clinched Echols with the idea of cutting him in the arm and cutting him loose from his six-shooter. The evidence showed that the parties were down on the floor, and that when they were separated, or about the time they were separated, the injured party had a pistol in his hand. As appellant described it, during the fight he could not describe all of the incidents owing to his fright, rage, and excitement, but that at the time he was getting away or trying to get away he was facing a 45 pistol in the hands of his assailant.

The court submitted the law of self-defense upon apparent danger, using the following language:

“If, from the evidence, you believe the defendant assaulted the said R. E. Echols, but further believe that at the time of so doing the said Echols had made an attempt to shoot the defendant, or had made such a demonstration which causd him, defendant, to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant did, with a knife, cut the said R. E. Echols, then you should acquit him.”

Appellant complained of this charge in a timely manner upon the ground that it shifted the burden of proof and failed to give him the benefit of the reasonable doubt, and requested a charge which would have corrected the error, and also have submitted the theory of actual danger. This was’ also refused. We think the court' should have corrected his charge on self-defense so that it would have been made- plain to the jury that the burden of proof was upon the state to establish the facts constituting an unlawful assault by the appellant and advising them that the law required as a predicate for conviction proof of such unlawful assault beyond a reasonable doubt. A charge similar to that given was considered by the court in Stuart v. State, 57 Tex. Cr. R. 592, 124 S. W. 656. See, also, Knox v. State, 74 Tex. Cr. R. 126, 167 S. W. 730.

The facts also raised, we think, an issue of actual danger and required a charge on the presumption of the intent to kill from the use of a deadly weapon by the injured party. See Ward v. State, 30 Tex. App. 689, 18. S. W. 793; Teel v. State, 69 S. W. 532; Hudson v. State, 59 Tex. Cr. R. 650, 129 S. W. 1125; Branch’s An. P. C. § 1918; Vernon’s Sayles P. C. art. 1106.

For the errors pointed out the judgment of the lower court is reversed, and the cause remanded.
      ©^For otter eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    FIRST TEXAS PRUDENTIAL INS. CO. v. CONNOR.
    (No. 931.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1919.
    Rehearing Denied March 6,1919.)
    1. Accobd and Satisfaction <©=»S(1) — Receipt in Fulj>-Liquidated Demand — Consideration.
    When a claim is based upon a liquidated demand, payment and acceptance of less than the entire sum due, in the absence of some new consideration, does not bar recovery of the balance due, and a receipt or release in full of the balance due is without consideration.
    2. Insurance <©=>579 — Life Insurance — Release in Full — Consideration.
    Where there was no controversy between the parties as to 'amount due under life policy when release in full was given, the payment of a lessor amount than was due under the policy in compromise would not supply the necessary consideration for the release, and, where there was no other independent consideration released, would not bar recovery of the balance.
    Appeal from El Paso County Court at Law; W. P. Brady, Judge.
    Action by Florence Connor against the First Texas Prudential Insurance Company. Judgment for plaintiff, and defendant- appeals.
    Affirmed.
    Turney, Culwell, Holliday & Pollard, of El Paso, for appellant.
    Jackson & Isaacs and M. V. Ward, all of El Paso, for appellee.
   Statement of Case.

HIGGINS, J.

This suit originated in the justice court. It was brought by appellee against appellant to recover the sum of 1191.50 alleged balance due upon an insurance policy issued by appellant in the sum of $500 upon the life of Louisa Holder, naming appellee as beneficiary. In bar of the action, appellant set up a release reading as follows:

“First Texas State Insurance Company. Claim Draft. No. 11293. Home Office: Galveston. Date, June 18th, 1917. When properly indorsed on back hereof, at sight, pay to the order of Florence Connor, Ohas. Connor, beneficiaries, and Peak Und. Co., assignee, two hundred fifty-eight dollars ($258.00), and such indorsement hereon by payee shall constitute a receipt for the amount hereof in full discharge, settlement, and compromise of all claims under policy No. 51598, which payee has or may have against the First Texas State Insurance Company on account of any injury sustained and all disease or sickness contracted prior to date hereof, including all disability and loss of time, and death of Louisa Holder resulting from any, either, or all of said causes from and after May 20, 1917. In addition to the above sum, $51.5,0 due me, on account of the above claim, was applied on note. To First Texas State Insurance Co., Galveston, Texas. T. E. Flick, Adjuster.”

The release was indorsed by the payees therein named and paid by appellant. Charles Connor, one of the payees, is the husband of appellee. Peak Undertaking Company, another payee, had buried the deceased, and was made a payee to secure its charges.

It seems that, in making out the proof of death, appellee erroneously stated the age of the assured to be greater than it really was. The policy contained this provision:

“Misstatement of Age. If age of insured was understated in application for this policy, the amount payable hereunder shall be the insurance which the premium paid would have purchased at the true age of insured.”

It was agreed upon the trial that, if Louisa Holder was 57 years old at the time, of the issuance of the policy, the published rate of $1.95 would pay for insurance on the life of a person that age in the sum of $309.50, and, for a person 47 years of age at the time the policy was issued, paying a premium of $1.95 would entitle the insured or the beneficiary to the payment of $500.

In making settlement, appellant deducted the sum of $191.50 upon the theory that the deceased, as shown by the proof of death, was 57 years old at the date the policy was issued. Upon the trial, which was without a jury, appellee, without objection, testified that in making out the proof she made a mistake as to the age of assured, and to facts which would support a finding that assured was in fact 47 years old at the date the policy was issued.

Appellant presents but one assignment and supporting proposition as follows:

; .“The-court erred'in rendering judgment in behalf of the plaintiff, and against the defendant, because the defendant pleaded as a defense in said cause the payment and settlement of said claim; that said payment and settlement was not denied, because the uncontradicted testimony shows that settlement was made and payment was accepted by plaintiff without any fraud on the part of the defendant against the plaintiff being pleaded or proven.”
Proposition: “Defendant having pleaded the written release, the plaintiff, failing to deny the execution of the same under oath, cannot impeach this release.”

Opinion.

Upon the record presented, the pertinency of the foregoing assignment and its supporting proposition is not apparent. Appellee’s recovery is not based upon any question of fraud or non est factum. As disclosed by the evidence, her right of recovery rests upon an entirely different basis, namely, a want of consideration for the release ⅞ full.

When a claim is based upon a liquidated demand, the amount due being definite and certain, payment and acceptance of less than the entire sum due, in the absence of some new consideration, does not bar recovery of the balance due, and a receipt or release in full of the balance due is without consideration. Insurance Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014; Insurance Co. v. Blasingame, 38 Tex. Civ. App. 402, 85 S. W. 819; Rotan Grocery Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586.

So far as this record discloses, there was no controversy between the parties at the time the voucher was issued. The evidence is meager, but it seems that Mrs. Con-nor made proof of death of the assured, erroneously stating the age of the assured, and upon this proof the appellant issued the voucher for the amount due upon the policy, assuming the age to be as stated in the proof; $51.50 being deducted to cover a loan made the assured. If any controversy were shown to have arisen between the parties as to the amount due, -the payment of the lesser amount in compromise would have supplied the necessary consideration, and the release pleaded would have been valid. But no such controversy appears to have arisen, nor is any other independent consideration shown.

The assignment does not question the sufficiency of appellee’s pleadings to recover upon the theory that the release was without consideration. The evidence was admitted without objection, and upon the record as it is here presented the case must be affirmed.

So ordered.
      <©=5>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes