1048

knowing such unlawful intent, encouraged said Young in the commission of the offense, This charge assumes a material fact in the case, or one of the material facts, and that was that Young had an intent and an unlawful one, and further that such unlawful intent was to assault Oakes, and the further material fact that Young had committed an offense. Upon another trial the charge in these respects will be given so as to avoid being upon the weight of the evidence.

The judgment is reversed, and the cause is remanded.

GASTON v. STATE.

(Tex.

and convicted of murder in the first degree, HARPER, J. Appellant was prosecuted and his punishment assessed at life imprisonment in the penitentiary.

ment of facts. The appellant in his motion The record is before us without a statefor new trial complains that the court should have submitted the lesser degree of murder than murder in the first degree in his charge. Without a statement of facts we cannot determine whether this should have been done or not; but from the nature of the offense, murder in an attempt to rob, we are inclined to think, if the facts were before us, we would hold that the court properly only submitted murder in the first degree.

There are many other grounds in the mo

(Court of Criminal Appeals of Texas. Dec. 11, tion for new trial; but, in the condition the

1912.)

record is in, nothing is presented for us to

CRIMINAL LAW (§ 1090*)—APPEAL-RECORD review.
-NECESSITY OF STATEMENT OF FACTS.

Where there is neither statement of facts nor bills of exceptions accompanying the_record, no question is raised on which the Court of Criminal Appeals can pass.

[Ed. Note. For other cases, Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, see Criminal 2928, 2948, 3204; Dec. Dig. § 1090.*] Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Ocey Gaston was convicted of robbery, and

he appeals. Affirmed.

The judgment is affirmed.

GERRON v. STATE.

(Court of Criminal Appeals of Texas. Dec. 11,
1912.)

1. CRIMINAL LAW (§ 1090*)-APPEAL-REC-
ORD-SUFFICIENCY.
The sufficiency of the evidence to support
where the record contains
facts or bills of exception.

C. E. Lane, Asst. Atty. Gen., for the State. a verdict and judgment cannot be reviewed,

HARPER, J. Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years' confinement in the state penitentiary.

There being neither a statement of facts nor bills of exceptions accompanying the record, there is no question raised we can pass on. The indictment properly charges an offense, and the court in his charge submits this offense to the jury.

The judgment is affirmed.

MORGAN v. STATE.

no statement of

Law, Cent. Dig. 88 2653, 2789, 2803-2827, 2927, [Ed. Note.-For other cases, see Criminal 2928, 2948, 3204; Dec. Dig. § 1090.*]

2. CRIMINAL LAW (§ 1090*)-APPEAL-REC

ORD-SUFFICIENCY.

not be reviewed, where the bills of exception
Rulings on the admission of evidence can-
thereto are not contained in the record.
[Ed. Note. For other cases.
Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927,
see Criminal
2928, 2948, 3204; Dec. Dig. § 1090.*]

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.

(Court of Criminal Appeals of Texas. Dec. 11, and he appeals. Affirmed.

Henry Gerron was convicted of burglary,

1912.)

CRIMINAL LAW (§ 1097*) — RECORD
TIONS REVIEWABLE - REFUSAL OF INSTRUC-
QUES-
TIONS.

Where the record on appeal from a conviction of murder in the first degree contains no statement of facts, the refusal to submit a lesser degree in the charge cannot be reviewed on appeal.

[Ed. Note.-For other cases, Law, Cent. Dig. 88 2862, 2864, 2926, 2934, see Criminal 2938, 2939, 2941, 2942, 2947; Dec. Dig. 8 1097.*]

C. E. Lane, Asst. Atty. Gen., for the State.

ed of burglary; his punishment being as-
DAVIDSON, P. J. Appellant was convict-
sessed at two years' confinement in the peni-
tentiary.

statement of facts or bills of exception. The
[1, 2] The record is before us without
grounds of the motion for new trial are
to support the verdict and judgment, and
based on the insufficiency of the evidence
erred in excluding evidence and in admitting
two additional grounds allege that the court
Af-evidence as set out in bills of exception. The
bills of exception are not in the record.
The judgment is affirmed.

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. Frank Morgan was convicted of murder in the first degree, and he appeals. firmed.

C. E. Lane, Asst. Atty. Gen., for the State.

In a prosecution for homicide, an instruction that if the jury believed that deceased was the Revised Penal Code, to the effect that advancing on defendant and striking at him, if they believed defendant killed the deceased and defendant had a knife in his hand, with under the influence of sudden passion, but which he had been whittling before the trouble by the use of means not calculated to procommenced, and while defendant was backing and attempting to ward off the blows of dece- duce death, defendant would not be guilty dent he struck him with the knife unintention of homicide, unless it appeared that there ally and accidentally, and with no intent to injure or hurt him, then defendant should be was a specific intent on the part of the deacquitted, was objectionable as infringing the fendant to kill the deceased. It seems that right of self-defense, since if defendant was the evidence in this connection raised several

issues: First, that appellant intentionally | had a knife in his hand, which he had had stabbed the deceased; second, that it was in his hand and was whittling with before an accident; third, that appellant did not the trouble commenced, and that while deintend to kill deceased; fourth, that he was fendant was backing and attempting to ward acting in self-defense; and, fifth, that the off the blows of Wood Allred, and you furfacts presented manslaughter. The weapon ther believe from the evidence while warding used was a pocketknife. This weapon, of off the blows of his assailant that he struck course, might or might not be a deadly weap- | Wood Allred with the knife unintentionally on, owing to the manner of its use and the and accidentally, and with no intent to inattendant circumstances. Some of the evi- jure or hurt him, then you will acquit the dence for the state indicates that appellant defendant, and say by your verdict not intentionally stabbed the deceased, and under guilty." The criticism of this charge as circumstances that did not suggest self-de- it is given seems to be correct. This would fense or manslaughter. Several witnesses indicate an infringement on the right of selftestified that the trouble came up between defense. If appellant was warding off the two other parties than the defendant and blows of the deceased, who was striking at deceased, and appellant said "let them have him while appellant was retreating, and by a fair fist fight." The deceased interfered this means he cut the deceased with his and used violent epithets towards appellant, knife and with no intent to injure, they and struck him one or more licks, causing should acquit. If under those circumstances pain and bloodshed; that appellant was he struck the deceased with the knife with backing away, and did back 15 or 18 feet or without intent, he might be not guilty, from the deceased who was following him up, inflicting the blows mentioned. Appellant's testimony would suggest that he was acting in self-defense, that he had his knife in his hand whittling at the time of the difficulty, and was squatting down or was kneeling down on the ground at the time deceased first struck him. The testimony all shows without contradiction that defendant and deceased were young men barely grown, had been intimate friends and "chums," and, so far as the record is concerned, they seemed not to have had any previous difficulty. (Court of Criminal Appeals of Texas. Dec. 11, Some of the testimony shows just immediately prior to the trouble they had their arms around each other, both somewhat under the influence of intoxicants. This was in a friendly manner. It may be stated as an undisputed fact from the evidence that the difficulty came up all in a moment, and that there was no ill will or grudge between them prior to the incidents of the fight itself. Appellant testified he did not intend to kill his heretofore friend. We are of opinion under these circumstances upon another trial the court should submit to the jury the provisions of the article referred to.

[3] Another error is assigned on the charge of the court with reference to manslaughter. The court instructed the jury in this connection that the provocation must arise at the time, and must not be caused or brought about by any former provocation, etc. Upon another trial the charge should be limited to the facts. There was no provocation testified to by any witness other than the licks inflicted by deceased upon appellant at the time of the difficulty.

[4] The court charged the law of self-defense from real and apparent danger, then followed it immediately with this charge: "If you find and believe from the evidence that Wood Allred was advancing on the defendant and striking at him, and you further believe from the evidence that the defendant

and stand upon his right of self-defense. Upon another trial the question of accidental cutting of the deceased should be given disconnected with the theory of self-defense, or at least given in such way as not to infringe the right of self-defense.

For the errors indicated, the judgment is reversed, and the cause is remanded.

JENNINGS v. STATE.

1912.)

CRIMINAL LAW (§ 1131*)-APPEAL-REQUEST
TO WITHDRAW.

The rules of the Court of Criminal Appeals require that a request to withdraw accused's appeal must be signed in person and sworn to by accused.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.*]

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.

Roy E. Jennings, alias Arthur Walker, was convicted of burglary, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at 10 years' confinement in the state penitentiary.

Accompanying the record is a letter from appellant's attorney, stating that it is appellant's desire to withdraw his appeal. The rules of this court provide that such request must be signed in person and sworn to by the person convicted of crime. However, there is no statement of facts accompanying the record, and there is no question raised in the motion for new trial that we can review under such circumstances. The judgment is affirmed.

(Court of Criminal Appeals of Texas. Dec. 11, ment was filed in said court on April 22,

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2653, 2789, 2803-2827, 2927, 1912, and adjourned on June 29, 1912. The 2928, 2948, 3204; Dec. Dig. § 1090.*]

trial and conviction were had on June 20, 1912. The record further conclusively shows that this order was entered at the very time the indictment was returned into court: "Wednesday, May 22, 1912. On this the 22d day of May, A. D. 1912, came the grand jury

C. E. Lane, Asst. Atty. Gen., for the State. for the body of the county of Dallas, a

(Court of Criminal Appeals of Texas. Dec. 11, copy of what is indorsed on the indictment,

Henry Fields was convicted of theft, and (Court of Criminal Appeals of Texas. Dec. 11, he appeals. Affirmed.

PRENDERGAST, J. The appellant was indicted by proper indictment for burglary, and under a correct charge was convicted. There is neither bills of exceptions nor statement of facts. The questions attempted to be raised by the motion for new trial cannot be considered without a statement of facts.

The judgment is therefore affirmed.

ELDER v. STATE.

1912.)

doubt that the statements were false, and that
they were maliciously and wantonly made.
[Ed. Note. For other cases, see Criminal
Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960,
1967; Dec. Dig. § 789.*]

Appeal from Taylor County Court; Thomas A. Bledsoe, Judge.

J. F. Elder was convicted of slander and he appeals. Reversed and remanded.

Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. In this case appellant was prosecuted and convicted of slandering his

(Court of Criminal Appeals of Texas. Dec. 11, wife, in that he charged her with a lack of chastity, and his punishment assessed at a fine of $300 and 30 days' imprisonment in the county jail.

1. LIBEL AND SLANDER (§ 155*)-EVIDENCEPREPARATION то Сомміт CRIME.

On prosecution for slandering defendant's wife by charging misconduct with S., circumstances tending to show preparation on the part of S. for the commission of the offense are admissible as tending to show the commission of such offense.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. 8 155.*]

2. LIBEL AND SLANDER (§ 155*)-CRIMINAL PROSECUTION-EVIDENCE.

Where accused was charged with slandering his wife in charging her with misconduct with S., and accused sought to use the flight of S. as an incriminating circumstance, the court properly permitted him to testify to a statement made to him by the wife as furnishing a reason for his flight consistent with their

innocence.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]

3. WITNESSES (§ 277*)-CROSS-EXAMINATION

-SCOPE.

Where the state claimed that defendant had slandered his wife to manufacture evidence to obtain a divorce, that he might marry M., the court properly permitted the state to crossexamine defendant with reference to his attentions to M.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.*] 4. CRIMINAL LAW (§§ 419, 420*)-HEARSAY.

The facts are of that nature that we do

not think any good purpose could be accomplished by stating them; they in some respects being rather obscene. If appellant wrongfully made the charges alleged, he would richly deserve the punishment fixed by the jury. Appellant did not deny using the language alleged, but hinged his defense on the proposition that what he stated to Mr. Browning was true.

[1] The record discloses that Charley Skillern, whom appellant charged with having sexual intercourse with his wife, was attending the telephone at night; the wife of appellant sleeping in an adjoining room. On the night in question appellant pretended to leave the town on a night train, and shortly thereafter he says he placed a ladder against the walls of the building in which the telephone office was situated, and, climbing up the ladder, he claims he saw Skillern and his wife in a very compromising position. Skillern fled, leaving his hat, tie, and some other wearing apparel. This Skillern explains in a way entirely consistent with his and Mrs. Elder's innocence, but while Skillern was testifying, and while appellant was cross-examining him in regard thereto, appellant propounded to Skillern the question: "If he (Skillern) had not that night purchased from Lee Rutherford some condoms?" The state objected to the witness being permitted or required to answer this question, which objection was sustained, and appellant by proper bill shows he reserved an exception to the ruling of the court. Appellant offered to testify and introduce other testimony that on the night in question Skillern did purchase condoms from Rutherford, but, on objection being made by the state, the court refused to permit him to introduce such testimony. As we have Where, in a prosecution for slandering de- stated, this case was tried wholly on the fendant's wife by charging her with improper intimacy with S., defendant did not deny speak- issue of whether or not the statement was ing the language charged, but claimed it was true, and as the allegation was that appeltrue, and there was evidence justifying a rea- lant had stated "he had caught Skillern in sonable man in believing that his wife had been bed with his (appellant's) wife," and, exhibitunduly intimate with S., it was error to refuse to charge that, before accused could be convict- ing Skillern's hat and collar, said, "This is ed, the jury must find beyond a reasonable what I got out of that f-k-g scrape last

Where accused was charged with slandering his wife, and several young men testified to facts damaging to the wife's reputation for chastity, though denying any ill will toward her, evidence that a boy whose name was unknown to the witness had told witness that the boys around T. where the parties resided had it in for the wife, because she would not permit them to hang around the telephone office, was hearsay, and inadmissible.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]

5. CRIMINAL LAW (§ 789*) - INSTRUCTION REASONABLE DOUBT.