text:
    MYERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Assault and Battery (§ 53*) — '“Assault” —Threatening with Dangerous Weapon.
    A person who curses and points a gun at another, who flees, is guilty of an assault in violation of Pen. Code 1911, art. 1013, providing that the use of a dangerous weapon in an angry and threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, is an assault; it not being necessary that an actual injury be inflicted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 73, 74; Dec. Dig. § 53. For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.]
    2. Assault and Battery (§ 56) — “Aggravated Assault” — Threatening with Dangerous Weapon.
    A person who curses and points a gun at another, who flees, the. gun not being fired, is guilty of aggravated assault, within Pen. Code 1911, art. 1022, providing that an assault becomes an aggravated assault when committed with a deadly weapon under circumstances not amounting to an intent to murder.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. § 56.

    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Forest Myers was convicted of aggravated assault, and appeals.
    Affirmed.
    Jno. A. Barclay, of Wharton, and E. R. Pedigo, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of making an aggravated assault on Henry Hopkins. The facts show that Henry Hopkins married a sister of appellant, and the feeling had grown bitter between them over the dividing line of the land of appellant and his sister. Mrs. Hopkins had been prosecuted for making an assault on appellant, and, on the day this offense was alleged to have taken place, all the parties had been to town to see lawyers in regard to their land troubles. Appellant says he did not take his deed with him, and returned home after it, and was on his way back to town when he met Hopkins and his wife in the road. Hopkins and his. wife say they were going home when they met appellant; that he had a gun in his buggy, and, as he drew near them, appellant “picked up his gun, which I took to be a shotgun, and seemed to be unbreeehing it, or doing something with it, and I thought he was loading it, and, when he got within about 40 or 50 yards of me, he checked up his mule, and raised the shotgun and pointed it at me. Just as he did this my wife grabbed the lines and jerked our horse, and we both jumped out of the buggy. I was frightened, and thought he was going to shoot. I jumped out of the right side of my buggy, and my wife jumped out on the left side. I got under the fence on the right side of the road, and ran to the house of Mason Johnson, and called him, and asked him if he could not give me something to protect myself with. When my wife jumped out of the buggy, she got under the fence on the opposite side of the road, and ran around behind a tenant house of William Edwards on his place. As I was running toward Mason Johnson’s house, Forest Myers cursed me, and called mé a cowardly black son of a bitch.” Hopkins’ wife corroborates this evidence.

Appellant admitted he was going along the road and had a gun in his buggy, and that, when he drew near Hopkins and his wife, they jumped out of their buggy and ran, but denies he cursed any one on that occasion, and denies presenting the gun in a shooting position.

Appellant’s contention, first, is that, as no injury is shown, this would not constitute any offense, if the state’s testimony is true. This is not the law. Article 1013 of the (Penal Code provides that the use of a dangerous weapon, or the semblance thereof, in an angry and threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, is an assault. If the state’s testimony is true, it was not only presented with the intent to alarm, but in fact his conduct with the gun did alarm and cause Mr. and Mrs. Hopkins to jump from their buggy, run under the fence, and flee, so it was not necessary that an actual injury be shown, as contended by appellant.

Appellant’s next contention is that, if the acts recited did constitute an assault, it would be a simple and not an aggravated assault. Neither can this contention be sustained. Article 1022 provides that an assault becomes an aggravated assault when committed with a deadly weapon under circumstances not amounting to an intent to murder. If appellant had actually fired the gun, it would amount to an assault to murder, and as he did not fire the gun, but only presented it in shooting position, when Mr. Hopkins fled, under (his article of the statute, the assault became an aggravated assault. That the gun appellant had with him on this occasion was a deadly weapon is shown by his testimony; he says it was a Winchester shotgun; and there is no contention that it was not in excellent shooting order.

There are no bills of exceptions in the record, but these questions are presented in various ways in the motion for a new trial and in the special charges requested, and are the only questions presented.

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    ROSS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Intoxicating Liquors (§ 228) — Prosecution — Admission oe Evidence»
    Where accused, in a prosecution for selling intoxicants in prohibition territory, admitted that he received the money from prosecuting witness, and delivered the whisky to him, but claimed that he was acting as agent in so doing, evidence by prosecuting witness that he had purchased whisky from accused on another occasion was admissible on the issue of agency.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 288; Dec. Dig. § 228.]
    2. Witnesses (§ 337) — Credibility — Accused as Witness — Pending Indictments.
    In a prosecution for selling intoxicants in violation of the local option law, evidence that other indictments for felony in violating the local option law were pending _ against accused in certain counties was admissible to affect accused’s credibility as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    Appeal from Montague County Court; Levi Walker, Judge.
    Frank Koss was convicted of unlawfully selling intoxicants, and appeals.
    Affirmed.
    W. S. Jameson, of Montague, and Latti-more, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted for making a sale of intoxicating liquor in territory where prohibition was in force to Bruce Sloan.

That prohibition was in force in Montague county is a fact admitted in the record. Bruce Sloan testified: “I am acquainted with Frank Ross (points out the defendant). I saw the defendant in Bowie on the 15th day of November, 1910, and asked him for some whisky, and got two bottles of whisky from him, and gave him ⅞2 for the same. This was in Montague county, Tex., on or about November 15, 1910. I gave him the money, the $2, and he went off, and was gone 10 or 15 minutes, and came back with the two .bottles of whisky, which he turned over to me.” Being asked, ‘‘Did not the defendant tell you that he did not have any whisky, but would try to get some?” said, “I do not remember; he might have said that. We had some conversation; but what was said I could not say.” Being asked, “Did not the defendant tell you he had no whisky? Ans. He might have said so; there was some conversation between us. It has been so long I do not remember what it was. He took the money, and was gone awhile, and I waited there in a room close to the Burns Hotel, where I gave him the money, until he came back with the whisky. I gave him the money before he went off and brought me the whisky back. He took the money with him. He went back towards the Jackson wagon yard, which is back of the Burns Hotel. The Jackson wagon yard had a gate open on the west, and one on the east, and has an alley running on the north side between it and the Pat Smith wagon yard.”

The only other witness who testified in the case was appellant, and he testified; “I remember letting Bruce Sloan have the two bottles of whisky on the 15th of November, 1910, as testified to by him. He come to me there in Bowie and said he wanted to buy some whisky. I told him I did not have any whis-ky. He asked me if I knew where he could get it. I told him there was a man there I thought with some whisky. He asked he to see if I could get it for him. I told him I would try. He gave me $2. I took the money, and went out through the Jackson wagon yard into the Pat Smith wagon yard, and bought two bottles of whisky from a man by the name of Moore.”

On cross-examination he was asked how many local option felony cases had been filed against him, and he said several; that he had been tried for pursuing the occupation and acquitted. He was also asked if he had not prior to the occasion alleged in this indictment sold whisky to Bruce Sloan, and he said he had not. Bruce Sloan was then recalled and testified that he had purchased whisky from appellant prior to the occasion alleged in the indictment. To the testimony of Bruce Sloan, in rebuttal, that he had purchased whisky from appellant on a prior occasion, appellant objected, and cites us to the cáses of Mitchell v. State, 159 S. W. 1073, and Gaines v. State, 63 Tex. Cr. R. 73, 138 S. W. 387. In the Gaines Case cited the appellant denied making the sale, and denied the prosecuting witness received any liquor from him. He did not admit delivering the liquor, and receiving the money, and contends that he had procured it from another as agent of the prosecuting witness. There was no question of agency; it was simply a question of sale or no sale. However, in the case of Mitchell v. State, 159 S. W. 1073, cited, the question in that case was whether or not Mitchell acted as agent of the prosecuting witness, and we held that testimony as to other sales was admissible on the issue of agency; it being specifically held in that case that, as the testimony raised the issue of agency, the testimony of the prosecuting witness Bonney as to other sales made to him was admissible on this issue. And in the case of Nobles v. State, 158 S. W. 1135, this court specifically held as follows: “Another contention by appellant is that the court should not have permitted the state to prove by other witnesses, over his objections, which was done, that the appellant, in June, 1912, and in August prior to August 10, 1912, made to the several witnesses who so testified other and separate sales of intoxicating liquor to such witness, clainling that such evidence did not tend to develop the res gestee, or establish system, or to connect the appellant with the alleged sale to Scott, and that the sale in June to one of the witnesses was too remote. He cites several cases to the effect that, where the sole question in the case was whether or not a particular sale had been made, and the question at issue was solely whether or not this particular sale had been made, other and distinct sales were not admissible. As said by this court in the recent case of James v. State, 63 Tex. Cr. R. 80, 138 S. W. 615: ‘It is well settled, where the sale has been maae out positively and clearly, that the introduction of other sales is not permissible as evidence to go to the jury. But it is also well settled that there are exceptions to this general rule, and, if the evidence tends to develop res gestee, or show the intent or connect the defendant with the offense for which he is being tried, or it is intended to show system, where system becomes a part of the case, it may be pertinent.’ This latter rule is well established, and has in many cases been held in prosecutions for violating the prohibition law. See Prinzel v. State, 35 Tex. Cr. R. 274, 33 S. W. 350; Bennett v. State, 50 S. W. 945; Young v. State, 66 S. W. 567; Skipwith v. State, 68 S. W. 278; Holland v. State, 51 Tex. Cr. R. 142, 101 S. W. 1005; Efird v. State, 44 Tex. Cr. R. 448, 71 S. W. 957; Hollar v. State, 73 S. W. 961; Roach v. State, 47 Tex. Cr. R. 500, 84 S. W. 586; Gorman v. State, 52 Tex. Cr. R. 329, 106 S. W. 384; Bruce v. State, 39 S. W. 683; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111. It is unnecessary to cite other cases. As shown above, appellant contested most vigorously the fact that he had made any sale to said Scott, as alleged in the indictment. He contended that it was not a sale, but that he acted solely as .the agent of Scott in procuring and delivering to him the liquor charged to have been a sale in this case. So that unquestionably this evidence of other sales by appellant to these several witnesses was pertinent and admissible.”

As the appellant in this case admitted he received the money from the prosecuting witness, and delivered the whisky to him, and made the defense of agency only, this testimony was admissible on that issue, and the court did not er'r in so holding.

Under all the decisions of this court it was admissible to show that there were indictments pending against appellant for 'violating the local option law in those counties where the offense is a felony, for the purpose of affecting his credit as a witness.

There are two complaints as to the remarks of the county attorney in his address to the jury. No charge was requested in regafd thereto, and under such circumstances the remarks are not of that character to present reversible error.

The evidence is amply sufficient to support the conviction as shown by the testimony hereinbefore copied, and the judgment is affirmed.


author: DAVIDSON, J.

text:
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Gaming- (§ 98) — Betting at Cards — Private Residence — Resort for Gaming — Evidence.
    A conviction of betting at a game of cards at a private house occupied by a family and commonly resorted to for gaming, in violation of_ Pen. Code, 1911, art. 548, could not be sustained, where there was no evidence that the house where the game was played was a private residence and that it was commonly resorted to-for gaming.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 291-297; Dec. Dig. § 98.]
    2. Gaming (§ 94)_ — Indictment—Variance.
    In a prosecution for betting at a game of cards at a private residence occupied by a family, evidence that the betting, if any, was with reference to a banking game exhibited there, and not a game of cards, constituted a fatal variance.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 274-283; Dec. Dig. § 94.]
    Appeal from Leon County Court; L. T. Dashiell, Judge.
    Cleve Robinson was convicted of betting at a game of cards in a private residence occupied by a family and commonly resorted to for gaming, and he appeals.
    Reversed and remanded.
    Joe H. Seale, of Centerville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of betting at a game of cards in a private residence occupied by a family and commonly resorted to for the purpose of gaming. '

It is sufficient to dispose of this case on the facts. This indictment was drawn under article 548 of the Revised Penal Code. The evidence fails to show that the house-where the game was played was a private residence; it further fails to show that it was commonly resorted to for the purpose of gaming. It is necessary to prove these matters in order to constitute a violation of the law under this prosecution.'

The facts show, if there was any betting done, which is a controverted issue so-far as appellant is concerned, it was a banking game exhibited, and not a game of cards, as charged in the indictment. This would be a variance under the authorities. See Chancellor v. State, 52 Tex. Cr. R. 464, 107 S. W. 823; Vinson v. State, 58 Tex. Cr. R. 47, 124 S. W. 652; Arredondo v. State, 58 Tex. Cr. R. 145, 124 S. W. 930; Averheart v. State, 30 Tex. App. 651, 18 S. W. 416; Shaw v. State, 33 S. W. 1078.

The judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    WILLIAMSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Jury (§ 131) — Examination Voir Dire— Suspended Sentence.
    Where accused, contrary to the requirements of Acts 33d Leg. e. 7, failed to file his application for a suspended sentence until after trial began, and four jurors had been selected, the court properly sustained the state’s objection to questions propounded by him to the remaining eight jurors on their examination as to ■whether they had any prejudice against the suspended sentence law.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    2. CRIMINAL Law (§ 884) — Submission oe Issues — Suspended Sentence Law.
    Where accused, contrary to the requirements of Acts 33d Leg. c. 7, fails to file his application for a suspended sentence until after trial began, and four jurors had been selected, the court need not submit to the jury the suspended sentence law.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.

    3. Criminal Law (§ 1090) — Appeal—Presentation por Re,view — Rulings on Evidence.
    Rulings on evidence in a criminal case cannot be reviewed when not presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 884) — Assessment oe Penalty.
    In a criminal case, whether tried before or after the enactment of the indeterminate sentence law of August 18, 1913 (Acts 33d Leg. [1st Called Sess.] c. 5), the court must require the jury to assess the penalty.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.]
    5. Criminal Law (§ 369') — Evidence—Admissibility — Instructions.
    In a statutory rape case, it was not error to admit evidence of other acts of intercourse by defendant with prosecutrix where the instructions limited the jury to the consideration of one specific .act on a certain date.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Criminal Law (§ 1090) — Appeal—Presentation eor Review — Reeusal oe Instructions.
    The refusal of a requested instruction relative to the argument of the prosecuting attorney could not be considered on appeal when not raised and preserved by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Criminal District Court, Dallas County; Wi L. Crawford, Jr., Judge.
    J. P. Williamson was convicted of rape, and 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 & R,ep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 25 years in the penitentiary.

It would serve no useful purpose in this, or any other, case to recite the evidence. It was amply sufficient to sustain the verdict; although appellant himself testified, positively denying any act of intercourse with the girl. This was all for the jury and the lower court, and we cannot disturb the verdict.

It is shown that, after the trial began, and four jurors had been accepted, being passed upon separately under a special ve-nire, appellant then for the first timé filed his plea seeking to have his sentence suspended, if convicted, and the punishment assessed at less than 5 years. Thereupon, as each of the other eight jurors were examined on their voir dire, he sought to ask them whether or not they had any prejudice against the suspended sentence law. This was objected to by the state, because he had not filed his application for a suspended sentence until after the trial began, and four jurors had been selected. The court sustained the state’s objection, and would not permit him to ask the remaining eight jurors such questions. In this there was no error. The statute itself (Acts of 1913, p. 8) expressly requires that such plea shall be filed before the trial begins, and the uniform construction thereof by this court is in accordance with the statute. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846. See, also, Monroe v. State, 157 S. W. 155; Baker v. State, 158 S. W. 998.

Neither should the court, under the circumstances, have submitted the suspended sentence law to the jury, because no plea was filed in time.

There are in the motion for new trial several complaints to the introduction and exclusion of testimony; but there is no bill raising either of these questions. They are not, therefore, presented in such a way that this court can review them. However, even if there had been bills, the complaints show no error.

At the time of this trial there was no valid indeterminate sentence law in effect in this state. The act of April 3, 1913, p. 262, has been declared void by this court. Ex parte Marshall, 161 S. W. 112. The act of August 18, 1913, p. 4, did not go into effect until three days after this case was tried. Even if this latter act had been in effect, the court had, to submit to the jury, and have them assess the punishment. So that the court’s charge requiring the jury to assess the penalty was correct.

The court did not err in admitting other acts of intercourse by appellant with the said girl, nor in refusing to charge the jury that they could not consider such evidence. After the evidence was in, the court expressly limited the jury to the consideration of only one specific act on a certain date, and limit-' ed the jury in the charge to a conviction for the offense on that date, and that act only. The court’s action was clearly correct. Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783.

There appears in the record a refused special charge asked hy appellant as to some argument of the county attorney. This question is not raised by bill of exception, which is the only way that such question can be raised and preserved. A special charge only does not raise it. Besides, no complaint is made on that score in the motion for rew trial.

The record shows no error, and the judgment is affirmed.


text:
    JOINER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Criminal Law (§ 1092⅜) — Appeal — Statement of Pacts — Bill of Exceptions — Piling.
    Where accused was convicted at a term that adjourned September 20, 1913, and the statement of facts was not filed until October 17th, and the bills of exceptions were not filed until the 19th, the bills could not be considered, and hence matters set up in a motion for new trial could not be reviewed.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]
    Appeal from Baylor County Court; T. J. North, Judge.
    E. D. Joiner was convicted of illegal voting, and he appeals.
    Affirmed.
    D. F. Goss, of Seymour, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of illegally voting. Court adjourned on 20th day of September, 1913. The statement of facts was filed on 17th day of October, more than 20 days after the adjournment of court; and the bills of exception were filed on 19th day of October. Under the decisions, the evidence and the bills of exception cannot be considered on this appeal. Without these, the matters set up in the motion for a new trial cannot be considered.

The judgment will therefore be affirmed.


author: HARPER, J. JDAVIDSON, J. HARPER, J. DAYIDSON, J.

text:
    CORBITT v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    On Motion for Rehearing, Feb. 11, 1914.)
    1. Homicide (§ 203) — Dying Declaration.
    A statement by decedent, shortly before his death, when he was rational and knew he was going to die: “I am bound to die; this trouble came up over nothing. We had been quarreling about the books and I started to feet up and go away and he cut me while I was getting up” — was admissible as a dying déelaration,
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    2. Homicide (§ 203) — Evidence—Dying Declaration.
    Decedent’s nurse, who remained with him until he died, testified that decedent, at a time when he knew he could not live, and had never expressed the hope of getting well, testified that the trouble with accused came up over the books, and that decedent saw they were going to have trouble and started to get up, when accused caught him and said, “I will cut you, you s-n óf a b--h,” when decedent replied, “Jim you have cut me; you have killed me.” Held, that the nurse’s evidence was admissible as a dying declaration.
    [Ed. Note. — Por other eases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    3. Criminal Law (§ 1054) — Afpeal—Ac-ceptance.
    The admission of evidence cannot be reviewed, where no exception was reserved to its admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.]
    4. Criminal Law (§ 366) — Evidence—Res Gest.®.
    A witness testified that after the cutting he assisted in carrying decedent to a drug store across the street, and that decedent asked that his clothes be unfastened, and it was then found that his intestines were protruding through the cut in his stomach, and the decedent remarked, “That fellow took my life for nothing.” Meld, that the evidence was admissible as res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    5. Criminal Law (§ .680) — Trial—Order of Evidence.
    Under the Code, it is within the discretion of the trial court to admit evidence offered by the state after accused has introduced his testimony, instead of requiring that it be offered by the state at the time it puts in its first evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1609, 1610,1613; Dec. Dig. § 680.]
    6. Homicide (§ 166) — Admission of Evidence — Motive. ‘
    In a homicide case, evidence was admitted that two or three weeks before the killing witness heard accused and decedent, who were partners, quarreling over their books, and that accused remarked that “he knew d-n well it was not right,” referring to d balance showed by the books, .while decedent replied that “he knew d-n well it was right.” Mold, that the evidence was admissible to show motive for the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    7. Criminal Law (§ 683) — Trial—Rebuttal Evidence.
    The evidence was also admissible in rebuttal of accused’s evidence that decedent was the one who objected to the manner in which the books were kept, .and first raised objection thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. § 6S3.]
    8. Homicide (§ 39) — Manslaughter—Necessity of Passion.
    Adequate cause for sudden passion, without sudden passion in fact resulting from such cause, will not reduce the offense to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 59-61; Dec. Dig. § 39.]

      9. Homicide (§ 309) — ¡Manslaughter—Adequate Cause.
    An instruction that an assault and battery causing pain “and” bloodshed is deemed adequate cause was erroneous, since the statute provides that an assault causing either pain “or” bloodshed will be adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655 ; Dec. Dig. § 309.]
    10. CRIMINAL Law (§ 823) — Instruction — Cure oe Error by Other Instructions.
    The court charged that the following were deemed adequate causes to reduce the offense to manslaughter: “Assault and battery causing pain ‘and’ bloodshed, or any condition or circumstance which is capable of creating, and which does create, sudden passion,” which renders the mind of persons of ordinary temper incapable of cool reflection — the instruction being erroneous for requiring both pain ‘.‘and” bloodshed to result from the assault to make it an adequate cause. The only evidence tending to raise the issue of manslaughter was that, after the parties had quarreled, decedent went into the street and picked up a brick and threw it at accused and missed him, and picked up another brick and knocked him down with it. The court also instructed that if, prior to, or at the time of, the cutting the parties had a difficulty, and that thereafter decedent threw a brick at accused, and was reaching for another brick, and if the jury believed such facts, or that any other acts of decedent, prior to or at the time of the cutting, created in his mind a sudden passion which made his mind incapable of cool reflection, and that accused cut decedent with a knife under such circumstances, the jury should convict of manslaughter. Held, that the error in the instruction was not reversible, m view of the issue of manslaughter, as raised by the evidence, having been properly submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    Davidson, X, dissenting.
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Jim Corbitt was convicted, of seqond degree murder, and appeals.
    Affirmed.
    U. S. Hearrell and Henderson, Kidd & Gillis, of Cameron, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

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

   HARPER, J.

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

There are a number of bills of exception in the record, mainly relating, in substance, to the same matter — that is, declarations of deceased.

The state proved by G. C. Murray that he was with deceased a short time before his death, and that deceased, in talking about the difficulty, said: “Mr. Murray, I am bound to die; this trouble came up over nothing. We had been quarreling about the books and I started to get up and go away, and he (appellant) cut me while I was getting up, and that was just about the size of it, I guess.” The testimony of this witness, and the testimony of Miss Hattie Stribling, the nurse, shows that deceased was rational at the time he made this statement ; that he knew he was going to die, and had no hope of recovery. This would make the dying declarations admissible if the testimony would be admissible as the testimony of the witness if living. We do not think any one could question that if appellant was being prosecuted for an assault to murder, and the deceased was living, that the living witness would be thus permitted to detail the facts, and the court committed no error in admitting the testimony.

Miss Hattie Stribling testified that she was a trained nurse, and nursed deceased, and remained with him until he died. That he knew he could not live, and never at any time expressed any hope of getting well, and she says deceased told her: “Do you know, we were sitting there talking, and the trouble came up oter the books, absolutely nothing but the books, and I saw we were going to get into a fuss, and I started to get up and he caught me — when I started to get up he cut me, saying, T will cut you, you s-n of a b-h,’ when deceased replied, ‘Jim, you have cut me; you have killed me.’ ” While in the motion for new trial complaint is made as to the admissibility of this testimony, but no exception was reserved, consequently i.t is not presented in a way we can review the matter, but if an exception had been reserved, as in the first instance above, the testimony would have been admissible as a dying declaration.' Appellant cites us to tjie cases of Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330, and Ex parte Meyers, 33 Tex. Cr. R. 204, 26 S. W. 196. With the rules of law there stated governing the admissibility of dying declarations we thoroughly agree, but the evidence in this case brings this case within the rules announced in those eases. The state’s evidence, made the testimony prima facie admissible; if appellant’s contention is that in his cross-examination he weakened the state’s case, and adduced testimony that tended to show that deceased, at the time, may not have been in his right mind, induced by the medicine he had taken, upon that theory if he had asked a special charge, instructing the jury that unless they found deceased was in his right mind at- the time he made the declarations, not to consider the testimony, it would perhaps have been proper to have given such charge. But no such special charge was requested. No complaint is made of the charge as given in this respect. The only objection made being that the testimony was inadmissible, and this cannot be sustained under all our decisions.

The next two bills relate to the same matter. Roy Hillyer testified that right after the difficulty he aided in carrying deceased to the drug store across the street, where they set him down in a chair. That deceased asked that his pants be unbuttoned, and when this was done, it was found deceased’s intestines were protruding through the cut in his stomach, and deceased remarked: “That fellow took my life for nothing.” Dr. W. L. Baird testified to the same statement. This was clearly admissible as res gestse. Drake v. State, 29 Tex. App. 266, 15 S. W. 725.

The state proved by Wm. Stutts that some two or three weeks before the fatal encounter he heard appellant and deceased quarreling over the books; they being partners in the butcher business. The books showed $44.75 as the amount taken in. Appellant claimed that the amount was wrong; that he had gone over the matter the night before and made it different. Appellant and deceased were fussing over this, when appellant remarked “he knew d-n well it was not right.” Deceased replied he “knew d-n well it was right.” The witness Stutts then advised them to cease their quarreling and go with him to get a drink. The fact that this testimony was not introduced by the state in originally making its case, but was introduced after the defendant had introduced his testimony, presents no error. Under our Code this is a matter left within the sound discretion of the trial court, and this testimony was admissible as tending to show the motive for, the killing. The state’s evidence would show that the fatal encounter grew out of a discussion of the way of keeping the books, discrepancies therein, etc. Appellant by his testimony would have deceased as the one objecting to the manner the books were kept, and raising this matter, while the testimony of Mr. Stutts would show that it was appellant raising this trouble over the books; and, if for no other reason, it would be admissible in rebuttal of his testimony. But it was admissible on the ground as explaining the basis of difference between the parties, and the trouble out of which the fatal difficulty grew.

Appellant requested a special charge instructing the jury that if deceased died from peritonitis, and that same was caused by any act on his part in not properly taking care of his wound or his entrails that were protruding, they would acquit him of murder. If the evidence raised any issue of want of proper care or treatment, this principle of law would be applicable, but the testimony and all the testimony would show prompt, efficient, careful, and skillful attention on the part of the attending physicians and nurse, and the court did not err in refusing the charge. Although a physician testified that the knife used by appellant was a deadly weapon, yet out of the abundance of caution the court instructed the jury: “Our law provides that 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. Now, if you believe from the evidence that the instrument used by the defendant was one not likely to produce death, and you further believe that from the manner of its use death was not designed and intended, then you cannot find the defendant guilty of murder in the second degree or manslaughter, although the deceased died from the effects of the wound of the instrument in the hands of the defendant. 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 homicide, unless it appears 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.”

After so instructing the jury the court then properly submits to the jury the issue of aggravated assault. The only other complaint in the motion relates to the charge on manslaughter. In this connection the court instructed the jury: “In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary, not only that adequate cause exist to produce the state ol mind referred to, that is, of anger, rage, sudden resentment, or terror, sufficient to render it incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense.” Appellant’s contention isi that, if “adequate cause” existed, “regardless of whether it produces sudden passion, rendering the mind incapable of cool reflection,” it would reduce the offense to manslaughter. This is not the laws, but under all our decisions “adequate cause” must be shown to produce the anger, and it must further appear that this cause did produce such anger as to render the mind incapable of cool reflection. Adequate cause without passion will not reduce the offense to manslaughter, and neither will passion without adequate cause. It takes the two combined. Article 1137, Penal Code; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Clore v. State, 26 Tex. App. 624, 10 S. W. 242; McKinney v. State, 8 Tex. App. 626; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536.

The next complaint of the court’s charge on manslaughter relates to the following paragraph found in the definition of the offense: “The following are deemed adequate causes: An assault and battery, causing pain and bloodshed; or any condition or circumstance which is capable of creating, and which does create, sudden passion (italics ours), which renders the mind of a person of ordinary temper incapable of cool reflection, is deemed adequate cause.” The criticism is that in the first part of this paragraph the court requires the jury to find an assault causing both pain and bloodshed, while the statute provides that an assault causing either pain or bloodshed will be adequate cause. This part of the definition is incorrect, as applicable to the evidence in this cause, as there is no evidence that an assault was made causing both pain and bloodshed, and had this error been carried forward into that portion of the charge applying the law to the facts and submitting the issue to the jury, it would perhaps present reversible error. But it will be noticed that the court, in addition to telling the jury that an assault causing pain and bloodshed would be adequate cause, also instructed them that any condition or circumstance capable of creating sudden passion would be adequate cause. If manslaughter is in the case it is raised by appellant’s testimony, and by his testimony alone. He testified that he and deceased were sitting down, and when Young (deceased) got up, he (deceased) hit him with the back of his hand. He does not claim that this caused him pain or angered him, but he swears on the other hand that “this did not excite him”; consequently under Bis testimony and article 1131 of the Penal Code this could not be adequate cause, and would not raise the issue of manslaughter. Then what portion of his testimony does raise the issue of manslaughter? He testified further that deceased then went into the street and picked up a brick and threw it at him, but missed him, and then stooped and picked up another brick, and by this time he had run to him, when deceased hit him over the head with a brick and knocked him down. This would be adequate cause to reduce the offense to manslaughter if it caused such passion as to render the mind incapable of cool reflection. In submitting the offense to the jury the court instructed them: “If you believe from the evidence that prior to or at the time of the cutting, defendant and deceased had "a difficulty, and that after said trouble deceased threw a brickbat at defendant and reached for or had another brick, and all or any of said alleged facts, or that any other acts of deceased prior to or at the time of the cutting, created in the mind of the defendant sudden passion which rendered his mind incapable of cool reflection, and you believe beyond a reasonable doubt that defendant cut deceased with a knife and killed deceased, and you further believe from the evidence that the knife, from the manner of its use, if it was used, was a deadly weapon, you will find the defendant guilty of manslaughter and assess his punishment at confinement in the state penitentiary for a term of years not less than two nor more than five. And in passing upon the condition of defendant’s mind at the time of the cutting, you will take into consideration any previous dispute between defendant and deceased, unless you acquit the defendant under other charges herein given you.” This submitted the issue of manslaughter as raised by the testimony of defendant, and his was the only testimony raising that issue. As the court thus correctly and aptly applied the law to the facts in submission of this issue, the use of the word “and” in place of the word “or” in the definition of the offense does not present reversible error. It will be noticed that the court not only told the jury that “if deceased threw a brickbat at defendant and reached for another brick,” but also instructed them, “and all or any .of said facts, or that any other act of deceased prior to or at the time of the cutting, created in the mind of the defendant sudden passion,” etc., they would find defendant guilty of manslaughter. Taking the record as a whole, the court’s charge was very favorable to defendant. The state’s evidence is that appellant inflicted the fatal cut when deceased was doing nothing but attempting to get away, and when they were separated made the remark: “D-n you, I will kill you.” If the mortal blow was inflicted at the time the state’s evidence would show it was inflicted, there would be no manslaughter in the case. If inflicted under the circumstances appellant’s testimony would tend to show, manslaughter might be in the case, if deceased’s acts raised such passion as to render the mind incapable of cool reflection, but on this issue the court in his charge directly and pertinently applied the law to the facts, and left the issue of fact to be found by the jury, as he should have done, under appropriate instructions.

The judgment is affirmed.

JDAVIDSON, J.

(dissenting). I think the court’s charge on manslaughter fatally erroneous. He should not have charged that it required conjunction of pain and bloodshed to constitute adequate cause. Either will be sufficient under the statute. Nor did the court inform the jury that if deceased struck appellant with the brick on the head, knocking him down, producing pain, it would constitute adequate cause. Where the statute states adequate cause, the charge must so inform the jury.

On Motion for Rehearing.

HARPER, J.

Appellant in his motion seeking a rehearing complains of the opinion in but two instances: First, that we erred in holding the testimony of Dr. Baird and Roy Hillyer admissible as res gestse. Appellant says, “We concede that, if proximity of time and place were the only tests, such holding would be correct,” but he insists that the statement, “That fellow took my life for nothing,”, is inadmissible, as it is but the expression of an opinion. In the case of Manley v. State, 154 S. W. 1008, the writer expressed an opinion that if this was an original proposition, he would be inclined to agree with appellant, but that the decisions of this court held otherwise, and in deference to such opinions he would not disturb the rule of law heretofore prevailing. In the case of Roberts v. State, 5 Tex. App. 150, this court held the statement “that Johnson said Roberts had killed him for nothing” was admissible as a res gestee statement. See, also, Carter v. State, 8 Tex. App. 375; Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 331; Sims v. State, 36 Tex. Cr. R. 165, 36 S. W. 256; Pierson v. State, 18 Tex. App. 524. Many other cases might be cited, but we deem it unnecessary, all holding that such a statement is a statement of a fact, and not the expression of an opinion.

Appellant’s other contention is the error in the definition of adequate cause should reverse the case. As shown in the original opinion, in the paragraph submitting the issue of manslaughter to the jury for a finding, the court aptly applied the law to the evidence adduced on the issue of manslaughter, and, having done so, the use of the word “and” where “or” should have been in the definition does not present reversible error. In the case of Moss v. State, 60 Tex. Cr. R. 272, 131 S. W. 1088, this court, in an opinion by Judge Davidson, held that, although there was some slight error in that part of the charge giving the definitions, yet if the court, in applying the law to the case gave an accurate charge as applicable to the evidence, it would not necessitate a reversal of the case. In the ease of Carter v. State, 59 Tex. Cr. R. 81, 127 S. W. 215, there was an error in the “definition,” but in applying the law the court correctly did so, and it was held to present no error. In Eggleston v. State, 59 Tex. Cr. R. 549, 128 S. W. 1105, it was held that the charge taken as a whole correctly applied the law, and no error is presented. See Ward v. State, 159 S. W. 273, and cases there cited.

The motion for rehearing is overruled.

DAYIDSON, J.

(dissenting). When the original opinion was handed down I added a few remarks indicating my dissent from the majority opinion. The court charged the jury that “an assault' and battery, causing pain and bloodshed, or any condition or circumstance which is capable of creating, and which does create, sudden passion which renders the mind of a person of ordinary temper incapable of cool reflection, is deemed adequate cause.” Judge HARPER in the opinion concedes this to be error because the statute provides that it is only an assault and battery causing pain or bloodshed which constitutes adequate cause. Under the statute itself, and under all the authorities, either will constitute adequate cause. It is not necessary, under any circumstances, that the two shall be combined. He says, however, that this was cured by the court’s charge. This is an application of the law by the court: “If you believe from the evidence that prior to or at the time of the cutting, defendant and deceased had a difficulty, and that after said trouble deceased threw a brickbat at defendant and reached for or had another brick, and all or any of said alleged facts, or that any other acts of deceased prior to or at the time of the cutting, created in the mind of the defendant sudden passion which rendered his mind incapable of cool reflection, and you believe beyond a reasonable doubt that defendant cut deceased with a knife and killed deceased, and you further believe,” etc. An inspection of this charge does not show and utterly fails to disclose the fact that the court instructed the jury that if deceased struck appellant with a brickbat, causing pain, it would be adequate cause. The charge narrates a lot of the circumstances, but that is not sufficient where the statutory ground is the basis of the charge. Quoting from the original opinion, we find this language: “Then what portion of his testimony does raise the issue of manslaughter? He testified, further, that deceased then went into the street and picked up a brick and threw it at him, but missed him, and then stooped and picked up another brick, and by this time he had run to him, when deceased hit him over the head with a brick and knocked him down. This would be adequate cause to reduce the offense to manslaughter if it caused such passion as to render the mind incapable of cool reflection.” An investigation of this charge, either by a casual or careful reading of it, fails to show that this issue was ever submitted to the jury by the court in its charge. I have copied above the definition, and then the application. Under all the authorities in Texas, where the cause is statutory, the court must instruct the jury pertinently that, if this statutory cause existed and produced such passion as to render the mind incapable of cool reflection, the case would be manslaughter. Mr. Branch lays down the rule tersely and correctly as follows: “If there is evidence of a condition or circumstance made adequate cause by statute, as an assault causing pain, etc., it is error to leave it to the jury to find whether it constitutes adequate cause; charge should state that it is adequate cause.” Branch’s Orim. Law, § 512. The authorities are so numerous as collated by him it is unnecessary here to collate them. They will be found by turning to this section of Mr. Branch’s Criminal Law. Again he lays down the rule: “If a cause made adequate cause by statute is in evidence, charge must not only tell jury that same is adequate cause, but must apply the law to the facts, and tell them (for example) that if blow was struck, and that it caused pain or bloodshed, and that it aroused defendant to such a degree of anger, rage, sudden resentment, or terror as rendered his mind incapable of cool reflection at the time of the homicide, he should not be found guilty of anything higher than manslaughter. Low v. State, 20 S. W. 366; Attaway v. State, 41 Tex. Cr. R. 399 [55 S. W. 45]; Ware v. State, 49 Tex. Cr. R. 416 [92 S. W. 1093]: Horn v. State, 50 Tex. Cr. R. 409 [97 S. W. 822]; Gillespie v. State, 53 Tex. Cr. R. 167 [109 S. W. 158]; Brown v. State, 54 Tex. Cr. R. 126 [112 S. W. 80]; Griffin v. State, 40 Tex. Cr. R. 312 [50 S. W. 366, 76 Am. St. Rep. 718].” If there is cause independent of the statutory cause, and both causes existing, that is, if the statutory adequate cause is testified, and there are other independent facts and circumstances which are capable of producing the requisite sudden passion, then both must be given in charge to the Jury in submitting manslaughter. It will not be sufficient to combine the two in the general charge. The jury must be told if adequate cause existed, mentioning it, and if sudden passion was present, manslaughter should be awarded, or if there are other facts and circumstances in the case producing sudden passion, then manslaughter would be in the case, and where they both exist both must be charged; especially so if the punishment inflicted is higher than the minimum. There is no question, I take it, from even the original opinion of the majority that the deceased struck the defendant on the head with a brickbat, and, this being the attitude of this phase of the case, manslaughter should have been given specifically with reference to this statutory adequate cause, and it is error and fatal error not to give it, and it has been so held under all the authorities so far as I am aware. I do not care to go into an extended discussion of the matter. This charge is wrong and fatally so, and in the face of all the authorities. This judgment should be reversed, and the cause remanded, and because it has not been, I enter most respectfully my dissent.


text:
    ARCHER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    Criminal Law (§ 1099) — Appeal — Statement of Facts — Time for Filing.
    On appeal from the county court, a statement of facts filed after adjournment of the term of court could not be considered, where the record contained no order authorizing such filing after adjburnment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from Hood County Court; W. L. Dean, Judge.
    Henry Archer was convicted of an offense, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for failing and refusing to work on the public road. He was tried before the court, a jury having been waived by the defendant.

County court adjourned on 31st day of December, 1913, and the statement of facts was filed in January after adjournment. The record does not contain an order authorizing the filing of a statement of facts after adjournment of the term of court, therefore it cannot be considered under the decisions of this court. Without the statement of facts, the matters presented in the motion for a new trial cannot be considered.

The judgment is affirmed.


text:
    Ex parte FAIHTINGER.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Extradition (§ 32*) — Complaint—Execution Beeoee Magistbate. .
    Where the record in extradition proceedings contained an affidavit by the county attorney, sworn to before a magistrate the papers were not fatally defective because the original affidavit by complainant was sworn to before a -notary public, and not before a magistrate, as required by Rev. St. TJ. S. § 5278 (U. S. Comp. St. 1901, p. 3597).
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 36-38; Dec. Dig. § 32.*]
    2. Extradition (§ 34*) — Requisition—Sufficiency.
    Where the Governor of a demanding state in extradition proceedings recited in his warrant that it appeared, from the annexed application for requisition and other papers, which the Governor certified to be authentic and duly authenticated in accordance with the laws of the state, etc., that accused was charged with the crime of selling and disposing of mortgaged property, committed in T. county, Old., and the papers so attached included a complaint which charged the elements of such offense created by Rev. Laws Okl. 1910, § 2755, it was not necessary that the offense should be defined in the requisition with the definiteness and particularity required in an indictment or information.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 35-38; Dec. Dig. § 34.*]
    3. Extradition (§ 39*) — Grant—Description op Offense.
    It is not necessary for the Governor of a state, in granting a requisition for the return of a fugitive from justice, to definitely describe the offense in the requisition.
    [Ed. Note. — For other cases,' see Extradition, Cent. Dig. § 49; Dec. Dig. § 39.*]
    4. Extradition (§ 39*) — Requisition—Recitals — Fugitive from Justice.
    A statement of the Governor of a demanding state in his requisition for the return of a prisoner that he is a fugitive from justice and a similar statement in the proclamation of the Governor of the state honoring the requisition, makes a prima facie case that such is the fact.
    [Ed. Note. — For. other cases, see Extradition, Gent. Dig. § 49; Dec. Dig. § 39.*]
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    Habeas corpus. On petition of J. J. Faih-tinger to obtain Ms discharge from an extradition warrant. From an order dismissing the writ, relator appeals.
    Affirmed.

      Henderson, Kidd & Gillis, of Cameron, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant is held by virtue of extradition papers issued by the Governor of this state, authorizing his arrest and surrender to the officer duly commissioned by the Governor of Oklahoma to receive him.

It appears that a complaint was duly filed in the justice court of Tillman county, Okl., in which relator was charged with the offense of unlawfully disposing of mortgaged property, without the written consent of the mortgagee. The complaint was sworn to by J. J. McWilliams before Jas. E. Ery, a notary public, and filed with J. L. Davis, a justice of the peace. Relator contends that he is entitled to be discharged, as this complaint was not sworn' to before a magistrate, and that section 5278 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3597) only authorizes requisition to issue and be granted when accompanied by an indictment or an affidavit made before a, magistrate, charging him with an offense. As the complaint, or affidavit, was made in accordance with the laws of the state of Oklahoma, and is sufficient under their laws to base the prosecution, this defense would be highly technical, but perhaps ought to be sustained, if that was the only affidavit accompanying the application. But upon an inspection of the record it seems that the county attorney of Tillman county forsaw that this contention might be made, and in addition to the affidavit made by McWilliams before the notary public, he, when he applied to the Governor of Oklahoma for requisition papers, attached his affidavit to the application and swore to it before J. L. Davis, who is a magistrate under the laws of that state, and swears that he personally knows of the crime charged in the complaint thereto attached, and that said prosecution is a bona fide prosecution, and instituted for the sole purpose of prosecuting said defendant. Thus before issuing the requisition the Governor of Oklahoma did have before him an affidavit made before a magistrate, charging relator with an offense under the laws of that state, as well as a complaint made before a notary public.

The next assignment complains that the requisition of the Governor of Oklahoma fails to set out all the elements of the offense charged. This requisition recites: “To His Excellency, The Governor of Texas: Whereas, it appears by. the annexed application for requisition and other papers which I certify to be authentic and duly authenticated in accordance with the laws of this state, that J. J. Faihtinger stands charged with the crime of selling and disposing of mortgaged property committed in the county of Tillman in this state and it has been represented and satisfactorily shown to me that he has fled from the justice of this state, and has taken refuge in the state of Texas.” He certifies that the papers attached are authentic, and that he based his action on such papers. In such papers so attached we find a complaint that does charge the elements of the offense under section 2755, Revised Laws of Oklahoma, and the affidavit of the county attorney made before a magistrate. Therefore it was not necessary to define the offense in the requisition with that definiteness and particularity required in an indictment or information.

Neither was it necessary for the Governor of Texas, in granting the requisition, to so definitely describe the offense. The statement in the requisition of the Governor of Oklahoma that relator is a fugitive from justice, and the recitation in the proclamation of the Governor of this state that he is a fugitive, makes a prima facie case that relator is a fugitive from justice. But were we to go to the facts adduced on the trial, this is amply shown to be true within the legal me¿ning of that term.

We have carefully read this record and the authorities, and we are of the opinion that the district judge did not err in remanding relator, and the judgment is affirmed.


text:
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.
    On Motion for Rehearing, Feb. 11, 1914.)
    1. Witnesses (§ 329) — Cross-Examination— Testing Knowledge and Gbedibility.
    To test the knowledge and credibility of one who had testified that deceased’s reputation for virtue and chastity was good, the question to him, on cross-examination, if it was not common, current report that deceased was keeping certain women, was proper.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1104, 1105; Dec. Dig. § 329.]
    2. Criminal Law (§ 1170½) — Appeal—Record — Harmless Error.
    The bill of exceptions does not show prejudice in the sustaining of objection to the question asked, on cross-examination, of one who had testified to deceased’s good reputation, if it was not common, current report that deceased was keeping two certain women ; it not stating witness would have testified such was the report, but stating that defendant expected or hoped so to show.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170½.]
    3. Criminal Law (§ 1170) — Appeal—Harmless Error — Exclusion of Evidence.
    The issue being whether defendant’s wife told him deceased had made improper proposals to her, and not whether he had in fact done so, testimony that it was common, current report that deceased kept two certain women, would have had such slight tendency to support the issue that the sustaining of objection to defendant’s question, if such was not the report, asked on cross-examination of one who had testified to deceased’s good reputation, was harmless.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3145-3163; Dec. Dig. § 1170.]
    4. Homicide (§ 295) — Adequate Cause — INSTRUCTIONS.
    An instruction held not to submit to the jury the question whether it would be adequate cause if defendant was informed and believed that insulting language was used to his wife by deceased, but to state that it would be; and to leave to the jury, as was proper, the questions whether he was so told and so believed, and whether this produced that condition of mind, defined, to reduce the offense to manslaughter.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    5. Witnesses (§ 374) — Evidence to Show PREJUDICE.
    To show animosity of a state witness towards defendant, testimony that, while deceased had had his cotton ginned at witness’ gin, defendant had not, is admissible; but the fact that defendant’s father had not patronized such gin, defendant being a married man and not being with his father, is immaterial thereon.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    6. Criminal Law (§ 1170½) — Appeal-^Record — Review.
    To show prejudice from exclusion of defendant’s question on cross-examination of a state witness, to show his animosity to defendant, whether certain facts were not true, the bill of exceptions should state that he would have testified that such were the facts, or that, if he did not so testify, proof would be offered that they were.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170½.]
    7. Criminal Law (§ 413) — Self-Serving Declarations.
    Defendant’s declarations to third persons of why he was going to move off deceased’s place, made subsequent to the time witness testified he said deceased accused him of whipping his wife and made threats against deceased on account thereof, are self-serving, and so inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    8. Criminal Law (§ 781) — Instructions.
    Where the state introduced a confession or admission of defendant, containing, however, his statement that deceased had his gun up and cocked, it was not necessary to charge that the state was bound by the statement, unless shown to be false; it being necessary, under the charge as to self-defense, to find deceased did not so have his gun before there could be a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1864^-1871, 1898; Dec. Dig. § 781.]
    9. Criminal Law (§ 1184) — Appeal — Reforming Judgment — Assessment of Punishment.
    Error of the court, under the Indeterminate Sentence Law (Acts [1st Called Sess.] 33d Leg. c. 5), in not assessing the punishment of defendant, found guilty of murder, at confinement for not less than five nor more than ten years, the jury having assessed it at a greater number of years than the minimum term, will be cured on appeal, as' required by Code Cr. Proc. 1911, art. 938, by reformation and correction of the judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.]
    On Motion for Rehearing.
    10. Criminal Law (§ 1056) — Appeal — Review-Necessity of Exception.
    Under Code Cr. Proc. 1911, art. 743, as amended by Acts 33d Leg. c. 138, a charge cannot be reviewed unless exception was taken in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.].
    11. Homicide (§ 340) — Appeal — Harmless Error — Instruction on Adequate Cause.
    Where the killing was in the morning, on the first meeting of defendant with deceased after the night when defendant was claimed to-have been informed of the using of insulting language to his wife by deceased, there was no harm in the use of the word “sudden” in the charge that by “adequate cause” is meant such as would commonly produce a degree of anger, sudden resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection; and that if defendant, on his first meeting with deceased after being informed of such insulting words, killed because of said words and their influence on his mind, he could not be found guilty of any higher degree of offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Appeal from .District Court, Freestone County; H. B. Daviss, Judge.
    J. W. Davis was convicted of murder, and appeals.
    Corrected and affirmed.
    R. L. Williford and R. M. Edwards, both of Fairfield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

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

That appellant killed deceased is proven both by the testimony of the state and the defendant. The state’s witness Joe Bryant says that he and deceased started to the woods to cut out a road, and both had axes in their hands; that deceased’s wife asked him to try and kill a squirrel for a sick child, and deceased also had a gun in his hands; that, as they started out of the “tramp lot,” appellant appeared at the gate, advanced toward them, and raised his gun, when deceased jumped behind him; that he (Bryant) jumped out of the way, when appellant fired, killing deceased. He would have deceased making no demonstration, but endeavoring to get behind him and out of the way when he was killed.

The only other person present at the killing was appellant. He says he was at the gate on his way to a neighbor’s, and, when deceased came near him, deceased raised his gun as if to shoot him, when he (appellant), believing his life was in danger, fired and killed deceased.

The court In Ms charge submitted the issue of self-defense very favorably to appellant, and in a way not complained of by him; so that may be said to pass out of the case. However, there are two theories as to motives for the homicide. Appellant contends that on Sunday, the day before the homicide, he had been informed by his wife that deceased had made improper proposals to her, and tMs was the first time he had met deceased since being so informed. His wife supports Mm in tMs contention, she saying that on Sunday mormng deceased made improper proposals to her for the third time. Using her language, she says: “X had gone to the creek after water, and I met •Sam down there, and he asked me if my husband had come back, and I told him, ‘No,’ and he said, ‘Coot, this is as good a place as we will ever have.’ And I said, ‘What for?’ And he said: ‘Xou know what I have been asMng you for. Well, you are going to do that to-day.’ And I started by him, and he caught me by the arm, and I jerked loose from him, and he tore one side of my dress nearly off, and I hollowed and called my husband. I hollowed three times. This all happened between 11 and 12 o’clock. My husband was not at home at that time. He had gone over to Judith Tippins’. My husband came home that night about 8 o’clock. I told my husband about what Sam Wilson had done and said that morning.”

To support the contention that deceased had made improper proposals to his wife, appellant introduced several witnesses who testified. that the general reputation of deceased for lewdness was bad in the community where he lived. In rebuttal the state introduced W. G. Duncan, who testified that the general reputation of deceased was good. On cross-examination, among other questions propounded to him by appellant’s attorneys, he was asked if it “was not common, current report that deceased was keeping Pearl Howard and keeping Sarena Durham.” Where a witness swears to the good reputation of deceased in any respect, on cross-examination the defendant should be allowed broad latitude in testing the witness’ knowledge, and especially should defendant.be permitted to ask if he did not know reports .were circulated derogatory in respect to the matter to which he has sworn to a good reputation, and, if the bill had stated that the witness would have testified that such was the “common, current report,” it perhaps would present error. However, the bill does not state that the witness would have so testified, but merely recites that he “expected” or hoped so to show. It may be that, if the witness had been permitted to answer the question, he would have testified that it was not a matter of “common, current report”; the bill contains no allegation that he would have so testified. In addition, the issue is this case was not whether in fact deceased had made improper proposals to the wife, but had he been so informed, and this would have no tendency to show that he had been so informed. In the charge the court instructed the jury that, if appellant was informed that the insulting conduct had taken place, it would make no difference whether or not deceased was in fact guilty of such conduct or not. So that this testimony would have but' a slight tendency to support the main issue; therefore the ruling of the court would not present reversible error. And on this issue the court instructed the jury: “By the expression ‘adequate cause’ is meant such as would commonly produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: (a) Insulting words or conduct toward the wife of the defendant; (b) any condition or circumstance which would render the mind of a person of ordinary temper incapable of cool reflection.” He further instructed the jury: “You are instructed that if you find from the evidence in this case that defendant, J. W. Davis, before the killing, was informed and believed that Sam Wilson had been guilty of insulting conduct toward his wife, or had uttered insulting words regarding her, and if you further believe that such information produced in J. W. Davis’ mind a condition of anger, rage, sudden resentment, or terror sufficient to, and which did, render Ms mind incapable of cool reflection, and if you further believe that J. W. Davis, upon the first meeting with Sam Wilson after he had been informed of such insulting words or conduct, if any, shot and killed Sam Wilson because of said insulting words or conduct, and the influence thereof upon his mind, then, if you so believe, you cannot find the defendant guilty of any higher grade of offense, if any, than of manslaughter, it makes no difference whether you believe that Sam Wilson was guilty of the insulting conduct or of uttering the insulting words concerning defendant’s wife or not.”

The contention made is that the court left to the jury the question of whether or not insulting words would be adequate cause to reduce the offense to manslaughter. By the paragraphs above copied, as well as the remainder of the charge, it will be seen that such contention has no foundation in the record, but the court specifically told the jury that this would be adequate. The question he submitted to the jury was whether or not tMs did produce such anger, rage, resentment, or terror as to render the mind incapable of cool reflection, and in this the learned trial judge was correct. Adequate cause may exist as a matter of law (and in this case the court instructed the jury, if appellant was Informed that deceased had. used improper language or made indecent proposals to the wife, this would he adequate cause); but whether or not this adequate cause produced that condition of mind to reduce the offense to manslaughter is always a question of fact to be determined by the jury, and the criticisms of the court’s charge in this respect are without merit. Massie v. State, 30 Tex. App. 64, 16 S. W. 770; Jones v. State, 47 Tex. Cr. R. 515, 85 S. W. 5; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158; Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; and cases cited in Willson’s Ann. Stat. under title “Manslaughter.”

The state undertook to show a different motive for the killing. By the wife of deceased, it showed that on Sunday morning appellant was at deceased’s house, and during their conversation deceased accused him of fighting his wife. Appellant denied he and his wife had any fight, but admitted he passed deceased’s house that morning and deceased accused him of mistreating his wife. Sarena Durham, Pearl Howard, and Fannie Durham testify that they met appellant in the road Sunday, and appellant said “that Sam Wilson (deceased) had told a lie on him that morning about him whipping his wife, and that it would be settled in less than two weeks.” Judith Tippins testified that appellant was at her house on Sunday and said that deceased had out a report on him about him whipping his wife; that he did not whip his wife, and when he saw deceased “he would have to prove it or eat it.” Abe Jones testified that, shortly after the killing on Monday morning, appellant came through his bottom field and told him he had killed Sam Wilson that morning, and when asked what was the matter said: “On Sunday morning he went to Sam’s house, and he owed Sam a day and a half’s work, and Sam asked him for that, and accused him of beating his wife.” He further said that he and Sam had had some trouble about a little pig running out, and claimed that Sa-rena Durham had told him some things, but did not say what they were, and appellant then asked him how long the court would send him up for, and witness' replied to appellant that he might plead self-defense, when appellant remarked that Sam had his gun up and right barrel cocked.

In cross-examination of the witness Abe Jones, appellant asked him, “if it was not true that deceased and his people ginned their cotton at his gin, while defendant’s daddy and his people did not do so.” The state objected to the testimony, and the objection was sustained. Appellant being a married man, and not being with his father, what his father did or did not do would not be a material inquiry; but if by the words “his people” was intended to include appellant, and it was intended to show that the witness Jones entertained animosity towards him because he would not gin his cotton with him, the testimony would be admissible. It is always permissible to show, in a murder case, the state of feelings of a witness toward the deceased, or the defendant on trial on cross-examination of the witness. However, in the bill it is recited only that defendant “expected” to prove by the witness that the father of defendant did not patronize the gin, and nowhere states that it could have or would be sought to prove that appellant did not gin his cotton with the witness. But the bill does not go further and state that the witness would have testified, or that it could be proven, that appellant’s father did not gin with the witness, and that Wilson (deceased) did gin with him. The bill would indicate that appellant was on a “fishing expedition” and did not know whether or not such facts were true, but says the testimony “might” have shown feeling or bias. If the bill had stated that the witness would have so testified, or that such facts were true, then such testimony is admissible under all the decisions; but the bill as drawn contains no such recitations, and if we were to presume that the witness would so testify, and on another trial the witness should testify that such were not the facts, it would put this court in a ridiculous light. In such case, the bill must show that the witness would have so testified, if he had been permitted to answer the question; or, if he did not so testify, proof would be offered that such were the facts, to present reversible error. Appellant’s father testified in the case as did appellant, and the wife of deceased, and we have examined their testimony critically, and by none of them is it proven, or sought to be proven, that such a state of facts existed.

All the evidence offered by defendant to show that he intended to move off the place of deceased was admitted. Appellant was permitted to so testify, and state his reasons why he intended to do so; but the court excluded what he had told others was his reason. In this there was no error, for it would be but a self-serving declaration, made subsequent to the time witnesses testify that appellant had made the remarks hereinbefore cited about deceased accusing him of whipping his wife, and that he would have to “prove it or eat his words,” and that “it would be settled in less than two weeks.”

The only other bills of exception in the record complain that as the state introduced in evidence the statement of defendant made to Abe Jones on the morning of the homicide, and appellant in that statement, when Abe Jones replied that he might plead self-defense, replied that “Sam, deceased, had his gun up, and had the right barrel cocked,” the court ought to have charged as the law of the case that, as the state had introduced the confession or admission of defendant, the state is bound by such statements, unless shown to be false. Defendant also requested two special charges presenting this issue, which were refused. Appellant testified as a witness for himself, and testified to the same facts as to the conduct of deceased at the time of the killing, hut denied in toto making any statement to the witness about how the difficulty occurred. The court presented the issue of self-defense fully and fairly as made by this testimony, and in a way not complained of by appellant, and it was a sufficient presentation of that issue as made by the testimony. The jury would necessarily be compelled to find that statement false under the charge as given before they would be authorized to find appellant guilty of any offense.

That ground in the motion which seeks to raise the question that, “the jury not having assessed the death penalty, it had no power or authority to assess his punishment at a fixed number of years, the extent of their power being to find the appellant guilty, the court then assessing an indeterminate sentence,” is without merit. This court had declared the first indeterminate sentence law void, and the court correctly required the jury to assess the punishment. However, in his brief, and argument before this court, appellant’s counsel seeks to raise a question not presented in the record before us, that the indeterminate sentence law passed at the called session of the Legislature provides that the jury shall assess the punishment, but, if the jury assess the penalty at a greater number of years than the minimum term fixed by law for such offense, that the court should pronounce sentence tha.t appellant be confined in the penitentiary for a number of years not less than the minimum penalty fixed by law, and not more than the number of years fixed by the jury in their verdict. Inasmuch as the indeterminate sentence law passed at the called session of the Thirty-Third Legislature (Acts 1st Called Sess. 33d Leg. c. 5) became effective August 18, 1913, and this trial was not had until in September thereafter, appellant was entitled to the benefits of the provisions of the law, and the court erred in not passing sentence thereunder; but it is not such error as calls for a reversal of the case. Article 938 of. the Procedure specifically provides that this court may reform and correct the judgment in criminal cases as the law and the nature of the case may require. This court in construing this article of the Code has held that it was mandatory in its terms, and it was our duty to reform and correct the judgment, when, under the law and the facts manifest of record, an incorrect judgment has been entered upon the verdict of the jury. Robinson v. State, 58 Tex. Cr. R. 550, 126 S. W. 276; Carr v. State, 9 Tex. App. 463; Rivers v. State, 10 Tex. App. 177; Lanham v. State, 7 Tex. App. 127; Short v. State, 23 Tex. App. 312, 4 S. W. 903; Robinson v. State, 24 Tex. App. 4, 5 S. W. 509; Jackson v. State, 25 Tex. App. 314, 7 S. W. 872; Thomas v. State, 31 Tex. Cr. R. 82, 19 S. W. 901; Purcelly v. State, 29 Tex. App. 1, 13 S. W. 993; McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 879.

In this case the jury found appellant guilty of murder, and assessed his punishment at confinement in the penitentiary for ten years. Under the provisions of chapter 5 of the Acts of the First Special Session of the Thirty-Third Legislature, he was entitled to have sentence passed on him that he be confined in the penitentiary for not less than five nor more than ten years. Instead of pronouncing such sentence, the court passed sentence that he be confined in the penitentiary for a fixed term of ten years. We can readily understand how the court fell into this error, for the acts passed at the special session of the Legislature had not been printed at the time this case was tried, but under article 938 and chapter 5 of the Acts of the Thirty-Third Legislature, First Called Session, it becomes our duty to reform and correct the sentence in accordance with the law as it existed at the time of the trial, and the clerk of this court is ordered to prepare and enter an order reforming and correcting the sentence of the trial court, and such order and judgment shall provide that appellant shall be confined in the penitentiary in accordance with the verdict of the jury and the law of this state for not less than five nor more than ten years, and a copy of said order correcting the sentence, together with this judgment, shall be certified to the court below to be entered upon the minutes of the court.

We have carefully considered every question raised by appellant. The court’s charge in this case, when read as a whole, we think, aptly applied the law to the evidence adduced, and it is subject to none of the criticisms leveled at particular paragraphs of the charge.

Judgment is affirmed.

On Motion for Rehearing.

Appellant in his motion for a rehearing undertakes to complain of paragraphs of the charge of the court to which he filed no objections at the time of the trial. The sole objections presented to the court read as follows: “Now comes the defendant, J. W. Davis, by his attorneys, and presents his objections to the court’s charge herein, as follows, to wit: The defendant excepts and objects to paragraph No. 10 of the court’s charge, because said paragraph refers the jury to what words the deceased might have spoken to the wife of defendant, and refers them to the conduct of deceased towards the wife of defendant, and then submits the matter to the jury, to determine whether or not these words and conduct constituted adequate cause. Whereas the court should have charged the jury that if they believed the deceased was guilty of insulting words or conduct towards the wife of defendant, that same was, under the statute, adequate cause. The defendant objects and excepts to the court’s charge as a whole, because same nowhere instructs the jury that when a confession or admission of defendant is introduced in evidence by the state, and same is relied on by the state, and when said confession or admission contains statements in favor of deceased, and same are shown to be false, the state is bound by such statements.”

We discussed these propositions in the original opinion, and these matters are not again presented; but a contention is now made to which no exception was taken in the court below. Under article 743 as amended by the Thirty-Third Legislature, c. 138, we are not authorized to consider such assignments ; but, were we to do so, the contention now made would not present error.

The contention is that the court erred in using the word “sudden,” wherein he told the jury that if appellant was informed that deceased had been guilty of insulting conduct towards his wife, and such information produced in appellant’s mind a “condition of anger, rage, sudden resentment, or terror,” etc., they could find appellant guilty of no higher offense than manslaughter. This question was thoroughly and ably discussed by Judge Prendergast, and the authorities reviewed in the case of Jaynes v. State, 150 S. W. 441, and it is unnecessary to further do so.

The only other question that need be discussed is the one wherein appellant insists the court erred in sustaining the objection to the question propounded to the witness Duncan, “if it was not a matter of common, current report that deceased was keeping Sarena Durham and Pearl Howard.” As the witness had testified that the reputation of deceased for virtue and chastity was good, the court erred in not permitting the question to be propounded. This we stated in the original opinion, and the long list of authorities cited by appellant so holding was unnecessary, as we agreed with his contention. But should this result in a reversal of the ease? The question was admissible on the question of reputation of deceased as a chaste and virtuous man, and to test the knowledge and credibility of the witness who had testified that his reputation in that respect was good. But no matter what his reputation in that respect was, it would not authorize appellant to kill him nor reduce the grade of the offense. The matter he relied on to reduce his offense to manslaughter was his claim that his wife had told him deceased had made her improper proposals; his wife so testified she had so told him; and the court instructed the jury that, if appellant had been so informed, it would make no difference whether or not deceased was guilty of the insulting conduct. What we held was that, under such circumstances, while it was error to sustain the objection to the question, it was harmless error in this case, for if the witness had so testified it would have but slight or no probative force to prove that deceased had in fact insulted the wife of appellant or she had so told him.

The motion for rehearing is overruled.