*1 Reports. 65 Texas Criminal 408 Hinton v. John 10, January 1490. Decided 1912. No.
Rehearing February 1912. granted Murder—Recognizance—Practice Appeal. 1.—Assault appeal recognizance want of a is dismissed for sufficient Where the assault, aggravated which defendant was convicted as describing the offense of recognizance thereafter filed a sufficient in accordance with State, court, Following the rules of same was Burton v. this 'reinstated. Rep., Rep., Texas 90 48 Grim. S. W. 498. Appeal. 2.—Same—Continuance—Practice on exceptions bill Where no was reserved of the to the action continuance, overruling nothing appeal. a motion for there review —Same—Charge Court—Self-Defense—Weight 3. of Evidence. Where, murder, court, upon trial of assault in his on self- defense, injured party upon referred the attack the defendant as attack, supposed error. weight was on same reversible —Same—Argument 4. of Counsel—Personal Belief of Counsel. An State’s counsel to effect that not he did heart, guilty prosecute was in his not believe he would tender his man him and that resignation if he did not believe defendant was guilty, was improper might present highly reversible error. 5.—Same—Evidence—Defendant’s Character. murder, Upon improper of assault it was trial for the State’s to ask a witness what sort character the' defendant had and whether he citizen, peaceable abiding and law the defendant put not having character evidence. Exceptions. Transactions—Bill 6.—Same—Evidence—Other murder, where, objection Upon trial of assault to the testimony difficulty trial, no having connection with the to another case on the court recitals, qualifies its approved disputing bill same stating introduced, the testimony contradictory same and did qualify bill; besides, admissible, explain testimony unless it showed malice, etc. n the District Court from Appeal Austin. Tried below Duncan, Special Judge. Hon. John T. from conviction Appeal of aggravated assault; penalty, a fine $500 and six months confinement in the county jail. Johnson, Teague Mathis & Matthaei & Thompson, appellant. question admitting testimony On other State, offense: Fore v. 251; 5 Texas Williamson v. State, 13 Texas Crim. App., 514; 20 State, Chumbley 547; v. Crim. App., Crass v. State, 480; Texas Crim. Kessinger State, 71 S. W. Rep., 597; 405. Cyc., On the court’s charge on self-defense in using "said supposed State, phrase, attack." Stuckey 7 Texas Crim. App., State, 8 174; Harrison Texas Crim. App., Hodde v. State, Hinton v. The State. 1912.] 12 Texas id., 382; Maddox v. Wyers v. *2 22 Texas Crim. 258. App., of 26 State,
On the of counsel: v. S. question Thompson State, 987; id., 209; 24 Texas W. Crow v. v. Rep., State, Tillery 251; Pollard v. 197. Crim. Crim. State, Rep., of Felsen On defendant’s character: admitting testimony of State, State, thal v. 30 Texas Crim. Kirk v. 35 Texas Crim. 36 Texas McCullar Crim. 213. Rep., State, Rep., Lane, C. E. Assistant for the Attorney-General, Appellant was HARPER, indicted Judge. grand jury Austin with assault to tried Countjq murder. he charged When convicted of an assault. aggravated
The Assistant has filed a motion dismiss this Attorney-General insufficiency because appeal recognizance. recog The defendant has been nizance states convicted of the merely “offense assault,” and the motion must be sustained. aggravated Killingsworth State, 28. 7 Texas Crim. App., appeal The dismissed.
Dismissed. Judge. At a HARPER, former of this day term this cause was insufficiency because of dismissed recognizance. Appellant in filed a accordance with recognizance the rules this court pro Burton v. 48 Texas the case mulgated Rep., and the W. is ordered cause reinstated we will Rep., S. its merits. was convicted of Appellant it on as aggravated consider assessed at a $500 sault and his fine of punishment imprisonment months. six jail first of the motion refers to the ground action of the The court for continuance. Ho bill his motion re overruling exceptions was if action of the court overruled the motion served for con tinuance; can not consider this matter. we Trevino consequently 64, and cases cited in section 645 38 Texas White’s Criminal Procedure. Code of the law self-defense the court instructed
As jury: from the evidence that at the time of assault (if believe “If you an attack on the defendant with a injured making any) party there from all the evidence reasonably plank you believe of losing that time that he was danger to the defendant at appeared supposed serious harm from said bodily or was to suffer likely his life complains The attack, appellant will the defendant.” acquit you attack reference to the court’s ground paragraph as testified defendant, by appellant) (as party upon injured the minds of idea to attack” conveyed unquestionably “supposed it could attack, that it as a real did regard that the court Eeports. 65 Texas Criminal mean, and the doubtless as accepted 'jury meaning nothing more attack, or less than that while the offered of an such evidence doubtful. regarded being untrue The attack,” court should not have “supposed used the words and we are to think the criticism of appellant inclined is justified. Appellant testified that witness accused him of prosecuting the father being child, resent'it, bastard he did not down sat in the door. board, That about Unseld then secured two 1x6, feet long—a father, made remark about appellant’s when appellant touched him with his Unseld raised strike, foot. then the board if to when he cut him with a knife. That he would not cut have him if he had to strike him with board. attempted only eyewitness other Unseld, than appellant party, Lange, Mr. ivho testified that door, he and when sitting Unseld came to where *3 were, a six inches broad and they plank, about two feet got long, and it, sat down on and commenced a hurrahing appellant baby about that which he was and alleged appellant’s, appellant denied. Unseld father, then a appellant’s made remark about when appellant kicked him. with the up raised, Unseld then jumped plank when appellant cut the him. Unseld and did dropped plank, appellant not cut him but' one time. and witness hitched That the appellant up buggy and car- ried for treatment. Unseld to Bellville a denied having
Unseld denied plank; making any threatening ges- that him ture, at a appellant and testified cut time he when was not him. at looking above was to lead charge, quoted,
The court’s calculated the to jury that in court there was no opinion believe the attack the made on the witness Unseld had told the and truth. had defendant, Appellant and witness theory a have the of himself the Lange to submitted right it was for the court to and error to so word the jury, the that to impress jury self-defense as opinion the court was “dream”—a but a and that the defense offered a supposed not real The was drawn between the squarely attack. issue of the testimony defendant, and this was an issue to be passed by State the jury, it appeared as reasonably viewed in the at light the time. that bill it is made to the district appear another in By attorney used the “If I following language: did not closing be- his I heart would not him, a in guilty my prosecute man and if lieve that of assault guilty defendant was t'o did not believe murder I Governor of case, I tender my resignation State of him.” This I alone Texas, prosecute before would would not present it been held it always a that reversal, for ground improper his belief attorney personal express for district guilt in such forcible it language, a defendant and must expressed when his for opinion intended officer prosecuting be evidence some effect on the defendant to have A and belief in guilt jury-. adduced, evidence is to under the his guilt defendant be tried 1912.] The Hinton belief, as their no one else’s jury
innocence determined Texas State, 18 Crim. Habel v. Pierson opinion. Texas Spargler there cited 233, and cases Grabow, the record while a witness defend-
It from appears stand, the asked witness: “What attorney State’s ant, was on have, defendant a law-abiding did he peaceable, of character' sort an having the defendant not improper question, This citizen?” sustained in evidence. the objection, his character put character should not unless “the defendant’s into added, inquired in issue.” This his character was emphasing defendant put had his district that the defendant issue. The put character fact it is have known that improper, must in this that he had to a defendant get way, unfair did not citizen he dare to reputation peaceable put conduct, issue. The court has condemned such it has been while sustains the it does not that when court promptly objection, held error; fairness a reversible in common ought officer prevent prosecuting ask a man on question tending jury against prejudice trial; he is under the rules of is not aware law permissible.
In bill the that after appellant alleges another the defendant had the statement be the purporting “introduced declaration of made before injured party justice dying 24t'h day of December, introducing only peace of said statement to what occurred at time relating certain parts how received wound date, and as to on that of the difficulty, *4 said ivas introduced the by that of statement the for part defendant him; witness’ statement as now of the detailed contradicting by purpose district then offered that of said that the statement that time the fact some to defendant relating difficulty, hoe, head that it took him in the with several to stitches chopped to the to intro him State Appellant objected being permitted up.” sew statement to a relating that previous difficulty duce portion had no with the some it connection years before, which occurred no on latter light which he was shed the being prosecuted, for difficulty dis transaction, and The court in the bill grounds. approving other with that recitals, says qualification it is approved its the putes In Tyson defendant. was introduced this statement 388, it in the exceptions, is said: “When bill of Texas Crim. App., to he should refuse does not the facts truly, recite judge, of opinion explana statement, by way false sign it. He should sign explana statement is not an A contradiction of the it. tion, contradict 7, this in Jones v. Texas Crim. it.” Again, tion of in “It has been the the best always practice judges said: court the reasons exceptions explanatory ruling. a bill of upon dorse themselves, as a matter of not only justice has been done This assistance to Court Appellate found be great it has been Beports. Criminal in all its bearings. it to But this weigh objection right enabling right does not include the contradict statement explain explanation. A contradiction is not an trial A exceptions. bill porrect.” that should not bill is not approve Other cases judge might cited, and in some instances bills thus be contradicted have been It been this court. as a adopted considered rule of practice a bill with accepts when a party explanations the judge endorsed control thereon, the the recitals qualification will bill. (Hardy State, 31 Texas Crim. Rep., 289.) But said in the cases above cited, does not a direct contradiction nor qualify explain, and if the incorrect, it should not be approved, bill is refused. As the matter will not is for question, we the case will re presented pass versed account of error hereinbefore but, as this case will doubtless be mentioned, tried again, we will say trial, that on another defendant offers in evidence only of the statement as relates to the offense for parts he is being which entitled, alone, that the would not be for this reason prosecuted, State introduce other of the statement different trans parts referring áction several before. If the occurring years former tended difficulty malice, intent, light or throws for which any difficulty show otherwise, admissible; it being would be prosecuted, not. motion We reviewed other matters presented carefully have no error under this record. trial, and they present new is remanded. is reversed and cause judgment Reversed and remanded. absent. Prendergast, Judge, Atchley Parker v. The State. 21, 1912. February
No. 1537. Decided 27, 1912. March Rehearing denied Facts—Diligence. 1.—Theft of Cattle—Statement diligence preparing defendant used due counsel for Where thereto, facts, to agree State’s counsel declined filing a statement by State’s counsel was certified thereon agreement failure of which *5 him, judge, duly presented was the to the trial the defendant of duty time, of facts in due prepare and file statement judge of such do is reversible error. failure to so Facts—Transcript. 2.—Same—Statement of facts a statement Legislature, p. Thirty-First By the Act of the Appellate filed in the transcript was court after the filed in the trial which was fault by no considered, delay was caused Court, where can not be counsel, the cause must appellant or negligence State, 51 Texas Grim. Tankersley v. Distinguishing reversed and remanded. Rep., other cases.