*1 mu.] v. 239 The State. her, and not in defense of or person property an aggravated assault but an assault could amount to one intent to commit must find rape, beyond reasonable doubt that jury not only defend- ant assaulted must further find reasonable prosecutrix beyond a that doubt the defendant assaulted her with the intent to have specific her, carnal of consent. knowledge against The court gave of the- law He instructed phase fully. find, them that they must other among things, made, the assault made, if with the specific intent to ravish prosecutrix and to have carnal of her, with- knowledge out her consent, and to knowledge have carnal force, and to have carnal knowledge of her without her consent use of such means as was sufficient to overcome all within resistance her power accomplish at all hazards. It occurs us purpose awas sufficient presentation of law. This was phase stronger even than language instruction as to special intent. The other requested was to instruction the effect the jury find the use of force upon person prosecutrix, they find that force should used upon prosecutrix was for purpose gaining consent carnal then knowledge, amount to assault with intent The facts call rape. do not for such or issue. present makes out a clear case. The girl defendant denied the assault making her for upon purpose having intercourse with her. In fact his excludes testimony the idea that he intercourse with attempted her, or so, even desired do and denied the in toto so girl’s testimony far as that phase of the concerned.
The judgment is affirmed. Affirmed.
Federico Gomez 21, No. Decided October 11, Rehearing denied November County—Change 1.—Murder—Venue—Jurisdiction—New of Venue. 29, committed March 1913, on re- offense indictment May County, creating turned Hogg County 27th thereafter Brooks the law Jim. 1, County July went in force following, out said Brooks the where the County -to Jim Hogg transferred cause said venue committed, properly changed and from where the offense was County. judge to Wehb County. Stated—Division 3.—Same—Jurisdiction—Venue—Rule law, local, and the decisions By crimes are common committed, county they where prosecuted must be and where division, county crime was before the is divided and committed county in which prosecuted new the offense same must was com- 408, App., Grim. Following Hernandez and other mitted. cases. v. Texas Facts—Approval. 3.—Same—Statement Where, penalty, murder and the assessment upon alleged appeal facts was ever record did show on (Jiumixal Iíepohts. Texas to, by, the trial presented on cases. or the same be considered appeal. Following Texas App., Lawrence Grim. other *2 4. —Same—Evidence—Conversations—Bes Gestae—Buie Stated. Where, murder, upon of had, conversation the witness up events which led to the gestae, homicide res the same was was admitted in evidence. 5. —Same—Evidence—Opinion of Witness. murder, Upon trial a permitting of there was error in no witness that, health, sister, testify prior shooting perfect defendant the latter was in of and and died fourteen hours after that her death this shot. was caused 6. —Same—Evidence—Cross-examination. murder, Where, upon sought trial of the defendant on cross-examination witness, permitting a there was no error in to discredit the State State’s testify examination of the witness that what he testified to redirect true. was —Same—Dying Declarations—Bes Gestae. 7. of Where statements the State’s witnesses and the deceased made were shooting, a few minutes after the as res a only dying one and other as declaration, the same admissible in evidence. was Jury —Same—Jury Law—Freeholder—Householder. 8. nor jurors neither freeholders householders within con- Where law, excluding them. of there no error was templation 9. —Same—Buie Stated-—Freeholder—Householder. his parents, though even single pays who remains man A householder; hoard, a single merely man neither householder is not occupant the house. room from an of rents a Law—Challenge. Jury —Same—Jury 10. objected peremptorily challenged to were jurymen by. defend- juror forced on there objectionable no ant, error. —Same—Argument of and Wife. Counsel—Husband 11. trial, wife attended Where defendant’s introduced witness, referring error in district attorney there was no him as this fact. Facts. of —Same—Charge of Court—Statement 12. charge of were taken to the court exceptions before it was Where no pre- of a statement of facts court in absence will jury, read it was correct. sume that Penalty. 18.—Same—Death authorizing no law is now infliction of the there be sustained. penalty death Facts—Diligence. of —Same—Statement 14. preparation diligent filing of attorney end facts facts, does not until the statement of diligence statement etc., stenog- of the promise of the trial in the hands placed not sufficient. rapher to do so is Court—Sufficiency the Evidence. —Same—Charge the statement penalty, Where, inflicting the upon trial of murder same, time, yet if this considers filed facts pen- assessing the death the conviction to sustain was sufficient evidence mu.] alty, under a proper charge theory which also submitted killing, accidental defense there no reversible error. from the District Court Webb. Tried
Appeal below before Hon. J. F. Mullally. from a murder; conviction of death.
Appeal penalty, states the case. opinion North, . for appellant. Jno. of want of approval —On question . 391, facts: Johnson Rep., statement Texas Crim. 848; S. v. State, W. Sims 72 Texas Crim. Rep., Rep., S. W. Rep., Lane, O. N. Assistant the State. Attorney General, for —On question 41; venue jurisdiction: Nelson v. 1 Texas Crim. App.,
Weller 16 State, Dallam, Texas Crim. 200; Republic Smith, v. v. App., 407; State, Hernandez v. 19 Texas Crim. App., Upon to referring the wife in not question being placed State, 452; witness stand: Mercer Texas v. 17 Crim. App., v. Texas Armstrong State, 34 Crim. Rep., HABPEB, Judge. was —Appellant convicted and his murder, pun
ishment assessed at death.
March 1913, appellant shot and killed Santos Mora at the Bandado ranch in what was then Brooks County. Legislature The a new subsequently county, created Hogg, Jim where place the took was in killing included place the territorial limits that county. When that organized was county district the judge Brooks transferred the to Jim County indictment Hogg County. Appellant of this action of complains says the he should have been in tried Brooks County. Mr. the Bishop says, “By common law crimes to in local, of their prosecuted commission; in county such into them. county grand Even jury inquire where is county divided, a act criminal division is done to be pros ecuted in new in is which the offense. particular county place of The offense against State; the This county.” in new is the our rule, correct and one followed courts. v. by Hernandez State, State, 408; 19 Texas Crim. Weller 16 App., v. Texas Crim. App., 200; State, Nelson Texas The v. 1 Crim. offense been App., having 29th, May committed March indictment returned 27th, and the law 1st, incum Jim creating Hogg County only proper July that bent on the court transfer to as Hogg County to Jim the offense. And the District would have when county jurisdiction convened, of the trial Court Jim opinion Hogg County of the offense had the facts with the commission connected judge that a trial alike to impartial wide fair gained notoriety such county, could had was authorized accused and the not be in State Vol. Crim.-16 Bepobts. Texas Cbiminal
to the venue to Webb change County. Article '636 of Code of Criminal Procedure. death been assessed in penalty having this we can not under
stand
negligence
in
manifested
preparation
record.
facts bears
evidence' that
was éver
to
least,
for his
in
judge
approval—at
record before us the state
ment
has
of facts
is not
in
approved by
been
verified
way that would
it.
State,
authorize us to consider
Lawrence
Texas
v.
192;
Crim.
State,
236;
Bennett
16 Texas Crim.
App.,
App.,
v.
Johnson
Mrs. Mora to Juana De detail Chapa permitted was conversation This had and events that led was up tragedy. res transaction, and in admitted evidence. Carmen Mora testify was permitted prior shooting health, in Mora, and that her sister sister, died perfect fourteen hours after in the abdomen by appellant, this testi- this shot. The bill shows all death caused by admissible, it be unless objected to. all of Certainly mony caused stated sister’s which portion she. case, the the circumstances of this our under shot, opinion, fact. err the witness to did not testify permitting testified material facts for Gonzales had Federico sought to discredit the witness defendant, cross-examination, trial, testified at the examining attempted that he had showing induced as had on testify that he had been show another *4 to that what permitted say he redirect examination he trial. On truth. contends Appellant to on this had testified of the witness. We think testimony hardly was “bolstering up” bill, the recitals for cross- by sound under contention a cast the truth the defendant had cloud on of the witness examination truth, witness it was the witness, stating testimony to it. no strength add would Mora and were made Andres Salinas statements trans- declarations as res both dying admissible as .of a few minutes after were made the shoot- The statements action. the event it was but speaking. it is evident ing, and McClelland, Sprague qualified jurors, nor Vasquez Neither They were neither nor so freeholders holding. not err in did the court A single law. man contemplation within householders board, he pays even mother, though with his father remains a neither fact, householder. And become not, because of does from an occupant rents a room who merely a man a householder single of the house. to sustain appel-
As to Mr. if the erred Eistetter, refusing court as cause, lant’s for challenge peremptorily challenged juror, no on- objectionable juror was this bill appellant, present forced would no error.
l&u.] shows The record on court. in attendance wife was called as was not but she time of the homicide, at the was present bill her, and the not introduce could witness State by appellant. fact to the referred attorney the district shows that in his argument as witness. This permissible, not been introduced that she had error. presents bill it was the court before were taken exceptions No must of facts we of a statement Tead to the in the absence jury, made the evidence all the issues that it fully presents presume authorizing that there is now no law trial. The on the not sustained. the death infliction of penalty is affirmed. The judgment
Affirmed. OH KEHEAEING. 11, 1914.
November facts to HARPER, Judge. presented —The nor him. The signature, attorney for his judge signed by affidavit the court stating stenog has filed an he relied on appellant to the district for his The court judge approval. to rapher present states he filed an affidavit in which he intended has stenographer judge do filed without so, by oversight but was being “It his writes to the Judge says: for approval. Mullally and it facts, the statement of never intention approve my without and without been filed my approval, inadvertently Had seen it I it, to me. I as being presented district attorney.” to Mr. North and the was agreed last effort made to This and no cure this defect May, tried the letter of dated until we received Judge Mullally in the record authorized reverse the because 30th. We are not appel- October a statement of facts. His must be attorney deprived lant has been until statement facts diligence does end diligent, it,. hands the trial either request approve placed This and file statement of facts. so, not do or if will prepare counsel with, complied appellant’s of the law was requisite so the case to do reporting of the stenographer relied promise failed to oversight stenographer keep through for assessed, But the death counsel. penalty to appellant’s promise *5 bear the approval of facts did not the statement although Mora; separated, they married Pilar read it. Appellant we ranch. the Randado house, lived on father’s to her returned and she to this went home, her father’s also return to his wife’s after Appellant, he One went days. morning there several around and stayed ranch an forced folks were and present, the women house, this when only and at his wife while, he shot conversing After entrance. caught near appellant, deceased, standing Mora, mother, Santos her him out of undertook shove and two shots fired these him as he in the abdo- shot on and turned pistol did so he As she house. Bepobts. 75 Texas Cbiminal men, the wound that inflicting caused her death. Another girl, Carmen Mora, fled the house for and calling help', he fired two shots at this fleeing girl. This is case, the State’s and amply the verdict supports rendered jury. is that he went Bandado ranch about days six shooting, and he was drunk while there. That he the intoxicants got from Juana Mora, the mother. sent That two he mezcal, children of Damiana Villarreal to the house after the beer and hieither one of these children were introduced as and neither witnesses, does the record disclose that any process had ever been issued for them. He says morning tragedy he decided the mezcal after go himself, and went to the house for this and two purpose, did purchase of mezcal glasses from Mora, and Mrs. claims not to rec'ollect well very what took place two subsequently taking these drinks. That he wanted mezcal and more let him have he it, and pulled the3r his and it was fired. pistol The accidentally caught deceased hold him arid fell, when the scuffle the was fired three more pistol unintentionally times and accidentally. He offered no testimony except that he this Mora, own secured intoxicants and from anyr Mrs. the State’s evidence would authorize true. finding court defendant’s theory them: the defenses “Among instructed in this case the defendant raises of an the issue accidental and on issue instructed killing, you not intend kill if the defendant did to shoot Santos or to Mora, if he dis- her, struggling with the and if was pistol, while were so without an intent charged on they struggling part of the defendant be discharged, should and the shot entered death, Mora then and caused the defendant is guilty the offense charged, doubt as to issue you reasonable Mm.” the defendant the benefit of doubt you give acquit is- evidence, consider the affirmed. There So if we should be for the shot fired was intended nothing record suggesting another. The State’s case is turned the appellant deliberately her in abdomen. His girl theory pistol unintentionally. fell was fired pistol motion is overruled. for rehearing
Overruled. J. C. Eoff Decided October
No. 11, 1914. Rehearing denied November 1.—Perjury—Evidence—Agreement—Attorney and Client. State’s agreement between defendant’s counsel was made presence and without open hearing, was introduced ob- defendant, jection by matter would tend and evidenced no which to show that swearing, preliminary some matters guilty defendant was false necessary proven, question too late to raise that de- that were to be