Aрpellant was convicted of murder in the second degree, and his punishment assessed at fifteen years confinement in the рenitentiary. The State introduced Bennett, the assistant jailer, as a witness. Appellant’s counsel stated he understood what would be the testimony sought of this witness, and would object thereto; and asked the court to retire the jury, which was done. Appellant then asked the prosecuting attorney what he proposed to prove by witness. He declined to answer, remarking the witness was present on the stand, and defendant could find out what he knew. Thereupon defendant began to question witness as to what he wаs called to prove, and asked him if he was not called to prove an assault upon him by .appellant on August 20, 1900, while aрpellant was in jail. Appellant’s counsel asked the State’s counsel if he simply wanted to prove by the witness the assault by аppellant upon witness while in jail. To this question the State answered “Yes.” Appellant objected to the whole of said testimony. The court overruled the objection. The jury was then recalled, and the examination of the witness proceeded. The State not only showed by the witness such assault upon him, and effort of appellant to get out of the jail, but that said assault wаs made with a knife; and, before defendant could object to the voluntary answer of witness as to where he was cut by defendant in said assault, witness pulled up his sleeve on the right arm, and showed a cut across his right arm four or five inches above the wrist, and statеd that the cut paralyzed the leader of
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his little finger; and also pulled open his shirt front and showed a cut or knife thrust on his breastbone or breast several inches below his throat, made by defendant. Appellant objected, because it was proof of an independent crime, because it prejudiced the jury against defendant in an illegal way, so that thereafter they were trying appellant not only on the charge of murdering Jim Beck (deceased), but also for the assault to murder Bennett; that this tеstimony was brought out so quickly as to surprise defendant’s attorney, so that they could not object at the time, etc. The learned judge appends the following qualification: “Bennett, without being questioned further by the State than if an assault was made on him in the jail by defendant trying to escape, of his own accord made the exhibitions of the cut on his wrist and the stabs on his breast as he was answеring; and this was neither objected to nor excepted to at the time it happened, and the court considered therе was no occasion to strike out the evidence, even if required, as the witness testified that he had always been kind to defеndant, and conveyed him ice water, matches, and tobacco in jail, and that there existed not the slightest cause for аn assault upon him of that character by defendant; and the court took the view that an assault of such violence, and withоut any other reason for it, was a strong circumstance tending to show attempt to escape; and no instruction to the jury tо disregard any of the evidence was asked. The court further considered that the objection to the witness testifying at all. was рremature, and that objections should be made when a question was asked, as until then the court could not intelligently rule.” As we understand this bill, appellant served notice upon the court and district attornejr that he not only objected to proof of thе assault in the jail on the jailer, but to any other testimony touching the matter that might be offered. We do not think it was necessary for appellant to repeat his objections. However, the bill shows he attempted to do so. We note the judge certifies the witness also testified that, although appellant had assaulted witness, “he had always been kind to him, conveyed him-ice water, matches, and tobacco in jail, and there existed not the slightest cause for the assault upon him of that character by defendant.” The court also states that an assault of such character as that made by appellant upon witness was a strong circumstance tending to show appellant attempted to escape. Flight is a criminative circumstancе that can always be proven where a party is charged with crime; and we have held that, where a party attempts to break jail after his incarceration, such attempt can be proven. Russell v. State,
Reversed and remanded.