*1 {March 105 Texas Criminal present Appellant’s testified that she was at wife and shooting Mene- her after same to Dr. and with husband went questions her relative to what asked some fee’s office. The state ground objected' to on office. This was took in said brought anything exami- that the defense had out direct objections office. sus- nation that occurred in said present error. tained. The bills no Bill reserved to refusal No. 9 was deceased, Miller, court to Mrs. mother of allow to ásk allegations stand, made when on the witness reference to some spend- deceased a civil suit she averred that wherein advantage grandmother run had thrift had taken and his through phase the case property, We see no with her etc. proof to which such held material. could to each given as we can consideration We have as careful believe point by and find ourselves unable to raised calling error for reversal. that of them Being trial character of opinion had the judg- guaranteed appears, the no reversible error him ment will be affirmed.
Affirmed. mur- HAWKINS, Judge. Appellant for is under conviction — years’ twenty-five punishment confinement der with assessed penitentiary. by been handed down An has heretofore pending affirming on motion the matter is affi- personal his appellant. for filed He now files advising motion he desires to withdraw the davit court that longer prosecute appeal. no granted Complying request permission motion, issue withdrawal of his and it is directed that mandate original opinion. under the withdrawn.
Motion Compton A. B. v. The State.
No. Delivered March Manslaughter Injury Was Inflicted. Where 1.— —Venue—In the deceased the indictment killed Floyd injury County, showed resulted Floyd County, in died deceased inflicted that deceased the death County. County, properly venue was laid in provides person Art. 195 P. 1925 “If receives in one 1926] Compton v. The State. county, injury, another, reason of such and dies defendant *2 received, prosecuted was or where
be death occurred.” See also Art. 210 C. 1925. C. P. —Same—Evidence—Properly 2. Received. complains refusing to of the action the court in Where of showing permit jury, introduce volun-
retire the tary and him to that the examining trial was inadmis- statement made at the sible, ing qualification complain- appellant’s exception and the court’s bill of examining trial, legal statement was of this matter states that evidence showed a complied statutory requisites intro- with before duced, presented. no error is —Same—Argument Proper. of Counsel —Held jury said, Where for counsel the state in his “I don’t usually jump witness, long they get upon like on but as the stand perjury, McReynolds done, going commit and as Allen I am not any bouquets them,” light throw comments criticisms and proper of the evidence this record were deductions conclusions. and ON REHEARING.
4.—Same—Statutes Constitutional. Construed —Held n 195, 210, Arts. 400 C. C. P. of 1925 Subdivision 5 of Art. 396 jurisdiction relating C. C. P. to the of offenses counties, or more are not in contravention of 10. Art. Sec. 1 Constitution contrary 5th, (Sec. 1) nor to the 6th and 14th Arts. Constitution Spencer Ky. Commonwealth, States. United See v. Distinguishing State, 5. W. 750. App. v. Chivarro 15 Tex. Crim.
MOTION FOR SECOND REHEARING. Appeal. on —Same—Practice rehearing, supplemental filed a motion for and later a argument, supplemental wholly motion argument, and later a based upon a original sup- matter not to in mentioned or referred either the plemental motion, rehearing, asks leave to file a second presenting supple- the matters omitted from both motion motions, request mental comes late attention. too to merit 6.—Continued. n However, questions presented in his for leave to file rehearing, charge
second motion for defense, general entirely court on self too call the trial court’s attention to threats, defects in the main nor was special charges, requested complained to correct the deficiencies him charge, specific in the court’s enough main to direct the court’s attention point urged State, Rep. as error. See Boaz 89 Tex. Crim. Rep. 209; Parker v. 98 Tex. Crim. and Bell 99 Tex. Crim. Rep. 61. Appeal from change the District Court of Hale venue County. Tried below before the RHon. C. Joiner, Judge. 105 Texas Criminal [March manslaughter, years penalty four
Appeal from conviction of penitentiary. the case. The states view, of Plain and Austin C. M. Baird and & J. Oxford Oxford Dallas, appellant.
Hatchett of for Attorney, Lyles, Stinson, Robert M. D. Sam State’s Attorney, Assistant State’s manslaughter
BERRY, punish- offense is and the The years penitentiary. ment is four the deceased killed *3 October, day Floyd County, 4th in about the of 1922, by striking that an axe. The record discloses him with difficulty County the the in and that lick occurred county struck in the deceased died said but that County days that lick struck he was the after struck by the the the of the death of deceased. cause facts, very earnestly in contends Under this state of prosecution very essential a a able brief that as is allegation allege the death that this the of homicide to proved that the and that of the fact must as laid view be Floyd County, occurred in that the death indictment injured party actually Lubbock the died allegations correspond with the and does not is not sufficient evidently Appellant’s counsel has in the indictment. contained thought preparation great of time and deal of devoted great question research and and it his brief on this evidences convinced, however, part. that counsel ability on are We Art. 1925 of has the Revision overlooked Chapter Art. of said code. P. in connection with 195 beginning page P. of the 1925 Revision of the C. C. embraces Art. 195 and Art. 210. injury in 195, supra, person provides receive an
Art. “If injury, county by reason of such one and dies in another county prosecuted in the where defendant be or where the death occurred.” was received mentioned chapter supra, provides “In all Art. cases proceeding chapter information or the indictment or this the offense was committed the case alle- prosecution on. To sustain the carried is gation prove only necessary venue it shall prosecution where reason of facts case ' Compton v. The jurisdiction.” language think the clear is carried has above, «210, quoted is of Art. conclusive to the effect that refusing in error in trial court was not to hold there was allegation variance between and the proof offered on the trial.
By 7, complaint bill of No. is made at the court’s refusing jury permit action to retire the proof showing voluntary introduce statement made examining at the trial was inadmissible. This bill exception approved qualification with the that the “evidence legal examining showed a statutory requisites trial with com- plied with before the statement was introduced.” Under qualification court, the trial think we this bill of does show error.
Appellant complains special prosecutor at the in the case. The bill shows following that counsel made the jury: remarks in his usually “I don’t like to jump on long get they witnesses as the stand and perjury, MeReynolds commit like Allen done, going I am not any bouquets to throw at them.” The bill shows that the defend objected ant requested these remarks and the court to instruct them, not to consider objection to which attorney replied: “Yes, sir, the state’s perjury, I accused him of did, I sure and it’s not reversible error.” The bill shows that again objected requested counsel *4 same, not to consider which the court declined to do. We think that set out above was a state ment of reached conclusion state’s counsel and that it was inflammatory not such an nature as warrant a reversal witness, McReynolds, may case. The have told the truth testimony but we do not believe that his carries with convincing verity and inherent evidence of as to make it revers opposite ible error for the counsel to reach the conclusion state’s jury. carefully and to state such conclusion We have complaints by appellant considered the other raised in bills his and believe none of them error. So believing, all it is should in our things be affirmed.
Affirmed. foregoing opinion Appeals been of the Commission of has Judges Appeals of the Court Criminal examined approved by the Court. [March 105 Texas Criminal FOR REHEARING.
ON MOTION appel- interest HAWKINS, have examined with thereon, rehearing, lant’s motion for support contention. authorities cited in of his States, et v. United Ball al. Chief reliance seems to be E. Broakway 118, N. 140 U. 35 L. P. S. C. these cases 88, B., jurisdictions L. where 26 A. In corresponding Article to our there statute arose was a original opinion), it does (1925) (quoted P. C. C. appear corre- there also a statute decisions that was those (also quoted in the sponding P. to our Article C.C. may Article opinion.) inserted It that our lawmakers be in the cases prevent very question in discussed the code to arising. P. articles our C. In addition to C. referred to from 5, Art. already may noted. be Subdivision mentioned others (1925) to show that requires P. indictment C. C. jurisdiction place within the the offense was is where committed presented. Article of the court in the indictment is (1925) provides P. that: C. C. or more may prosecuted in either of two
“When an offense be may to have counties the indictment the offense been prosecuted, county or committed where the same is any county actually offense committed.” or was given many times.
Effect these various articles has been under said Numerous be found collated the notes cases (1925). P. of articles as found Ann. C. C. Texas Vernon’s (1925) Article P. follows: counties, boundary “An on the offense committed yards thereof, prosecuted and within four hundred county.” punished in either given application even where a river
This statute
been
was
dividing
Hackney
(Tex.
line between the
counties.
App.)
Where an offense
Ct.
to which the was attached for (it poses, being the crime com- presented) mitted where the indictment was *5 apply, (supra) has been that Article 210 did not because held “laying providing for venue of an there was no statute unorganized county county to offense judicial purposes.” which it State, Chivarro v. be attached for escaped implication App. 15 cannot Tex. 330. The Ct. from the if had been such announcement in said case there Compton The proper statutory provision have been would prosecution in the where the the offense occurred holding no case instituted. The Chivarro’s here. perceive articles wherein the various
We have not been able to to, especially are of the referred Article statute guaran- contravention of teeing Art. Sec. Constitution right demand an accused “shall have the against him, have nature and cause of the and to accusation agree copy thereof.” Neither do conten- we contrary fifth, tion that said statutes are sixth and four- (Sec. 1.) teenth articles of the constitution of the United States. Appellant position plead that he takes would be unable to present rendered on in bar of another prosecution County for the same offense one should wholly be there instituted. pleading This is untenable. One acquittal may allege former or conviction prove this state identity the facts which show although offense appear upon indictment, the face of the nor from the judgment. recitals The evidence shows death occurred in Lubbock from resulted Floyd County. inflicted in quotation Under the facts a from opinion Spencer Commonwealth, Ky. 699x, appropriate. S. W. seems say “It would be absurd to that one indicted for the crime of by feloniously shooting murder county, another in one another, death followed in that such apprise indictment did not him of the crime tried, for which he to be fact him with the consequences necessary acts and complete having make the offense as all occurred in the complete. Further, crime became there no could be question but -that complete such trial would be a bar to another trial crime, for the same since all the elements crime proven upon the trial.”
Counsel for have made investigation an exhaustive subject manner, their views a forceful agree we have been unable to position. soundness of their is overruled.
Overruled. ON TO FILE REQUEST SECOND MOTION FOR REHEARING. HAWKINS, April 1, 1926, appellant —On filed a motion
for rehearing consisting pages twenty-one only in which the question raised was the one discussed on rehear- *6 105 Texas Criminal [[October ing. April 28, 1926, supplemental On he filed a motion and single May 26, which point. also related to On 1926, supplemental argument a was filed which discussed certain charge upon errors the and the refusal self-defense charges special upon subject. same This the wholly upon based to in a matter not mentioned or referred supplemental or motion. It not attached either the motion time the and was overlooked at the to either motions considered, attention even had our on propriety directed to of its is doubtful been consideration to which it relates were not mentioned because matters Appellant leave to file a the motions referred to. now asks rehearing presenting second the matters omitted supplemental from both motions. We think However, being to attention. solicitous too late merit comes investigated injustice we have be done that no question exceptions urged presented believe entirely general charge too to call the trial court’s on self-defense is, particular point urged, appel now which attention to intermingled charge “threats” entitled to on not lant was charge Appellant urges general if his on self-defense. special charges requested general his were exceptions too point. court’s attention have to called sufficient not in them and are accord with his contention. examined have having already subject undertaken The court self-defense, was told that threats considered, charges (even special by deceased could be made with the in connection indefinite taken when charge given) specific enough to direct court’s —were urged point State, attention to error. Boaz v. 790; Rep. 524, 231 W. Parker v. 98 Tex. Tex. Crim. S. Rep. Rep. Bell v. 99 Tex. S. W. Crim. Crim. 268 W. S. second denied. file motion is Appellant’s
Request denied. Brown v. E. W. October
No. 9362. Delivered Rehearing Granted December Liquors Intoxicating Transporting Appeal. —Continuance —Practice 1.— complaining refusal of a bill of the trial grant whether such to show a continuance fails was a first application, appeal presumed subsequent it will have been