
    Burt Roberts v. The State.
    No. 8216.
    Dismissed Nov. 19, 1924.
    Reinstated Delivered Dec. 17, 1924.
    Rehearing denied, March 4, 1925.
    1. —Aggravated Assault — Notice of Appeal.
    It is held to be imperative by the decisions of this court under Art. 915 of our code of criminal procedure that the record in this court on appeal must show that notice of appeal was given and entered. Not appearing in this case, the cause is dismissed.
    2. —Same—On Motion to Reinstate.
    It being made to appear on a motion to reinstate this cause, that notice of appeal was given, and should have appeared in the record, the .judgment of dismissal is set aside, .and the cause reinstated.
    3. —Same—Indictment—Name of Accused — Practice.
    Where the name of accused as set out in the indictment was Burt Roberts, and his real name was Burk Roberts, he should have suggested the misnomer when called upon to plead, and could not thereafter seek to take advantage of such misnomer in a motion in arrest of judgment. See Arts. 559-563, Vernon’s C. C. P. and authorities collated.
    4. —Same—Special Charges — Practice.
    Where a special charge has been given, it is not error to refuse another special charge covering the same subject matter, though differently worded.
    5. —Same—Evidence—Res Gestae.
    The fact that appellant’s brother aided in the assault, what was said and done by him, also that a bystander refused to come to the aid of the assaulted party, when he called for help, was all a part of the res gestae, and admissible in evidence.
    6. —Same—Evidence—Motive.
    Where the assault grew out of bad feeling on the part of appellant against the assaulted party because the latter had attempted.to collect money paid by him as surety for appellant, it was not error to permit a witness to testify that a short time before he had paid appellant, four hundred dollars.
    7. —Same—Charge of Court — Exceptions to — Practice.
    Where special charges are properly refused, and exceptions to the charge of the court are identical with the special charges asked, no error is presented, when special charges given fully covered the issues.
    8. —Same—Charge of Court — Exceptions to — Practice.
    No exceptions to the charge of the court presented tor the firR time in appellant’s brief, will be considered on appeal. Exceptions to rho court’s charge must be reserved, in writing before the charge is read to the jury.
    ON REHEARING.
    9. —Same—Serious Bodily Injury.
    Where serious bodily injury is relied upon to constitute an aggravated assault, the fact that the injured party was beaten and kicked, and confined to Ms bed for a week, and Ms skull fractured, causing a low grade of meningitis from which death may have ensued, is ample to show serious bodily injury.
    Appeal from the County Court of McLennan County. Tried below before the Hon. Giles P. Lester, Judge.
    Appeal from a conviction for an aggravated assault; penalty, a fine of $250.00 and thirty days in the county jail.
    The opinion states the case.
    
      Williams, Williams, McClellan & Lincoln, of Waco, for appellant.
    
      Walton D. Taylor, of Waco, Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

Appellant was convicted in the county court of McLennan county of aggravated assault, and his punishment fixed at a fine of $250.00 and thirty days in the county jail.

Our attention is called to the fact that the récord fails to show that any notice of appeal was given and entered of record. It is held to be imperative by the decisions of the court under Art. 915 of our Code of Criminal Procedure that the record in this court on appeal show such notice to have been given and entered. Otherwise this court is without jurisdiction. Palmer v. State, 63 Texas Crim. Rep. 614. See authorities collated under Art. 915, supra.

Being without jurisdiction to decide the questions raised or hear the matter further, the appeal is dismissed.

ON MOTION TO RE-INSTATE APPEAL.

LATTIMORE, Judge.

This case was dismissed at a former day of the term because the record contained no notice of appeal. By sufficient evidence on file in this court it is now shown that said order should have appeared in the record, and the judgment of dismissal is set aside and the case now considered on its merits.

Appellant was convicted of an aggravated assault on one Maynard and his punishment fixed at a fine of $250.00 and thirty days in jail. Briefly, the facts show that Maynard had paid a security debt for appellant and that shortly before the alleged assault he had a conversation with appellant in an effort to induce him to repay the money paid out on said suretyship. Appellant told him that he did not have the money and Maynard said that he knew that Renter had paid to appellant four hundred dollars shortly before. Appellant repeated that he did not have the money to pay and Maynard said that appellant was a damned liar; that he did not intent to pay it. Appellant made some remark about being at the place where they were and that if Maynard was somewhere else he would not talk to him like that, whereupon Maynard said he would go anywhere. Appellant said that he would see Maynard later. According to the testimony, a few days later appellant, his brother and some others waited at a certain place until Maynard came up when an altercation and the alleged assault took place.

Appellant’s first bill of exceptions complains of the refusal of his motion in arrest of judgment based on the proposition that his name is Burk Roberts and that he was charged as Burt Roberts, and that the record was devoid of proof that he was ever known as or called Burt Roberts. If appellant was not charged by his correct name he should have suggested that fact when the indictment was read to the jury, and he was called on to plead. Failing to then do so, he could not thereafter seek to take advantage of such misnomer, if any. Arts. 559-563, Vernon’s C. C. P. and- authorities collated.

The refusal of special charge No. 3 was not erroneous in view of the giving of a special charge covering the same subject matter, and the further fact that the evidence showed that an injury to Maynard caused by a falling ladder, was upon a different part of his body from that inflicted by appellant.

As part of the res gestae of the transaction Maynard testified that when he met appellant and the others claimed by the State to be acting with him at the time of the alleged assault, that he told appellant he was "all stove up,” that he could not use his right shoulder as a ladder had fallen on it. It was objected to, that there was no allegation in the indictment that Maynard was a decrepit person. We see no impropriety in permitting the State to introduce what was said and done by the parties at the time.

In the development of its case the State showed that appellant's brother was with him at the time of the alleged assault and himself made an assault on Maynard. This seems entirely permissible as part of the res gestee of the transaction and the bill of exceptions complaining thereof is without merit. This same proposition applies to the bill of exceptions complaining that Maynard was permitted to testify to the fact that when assaulted he called for help and none of the bystanders aided him. The bystanders were of appellant’s party, were with him and apparently waited with him some time for Maynard to come up, and when he appeared they were around him at the time appellant was alleged to have committed the assault.

That the alleged assault grew out of feeling on the part of appellant against Maynard because the latter had endeavored to collect from him money paid on a security debt, seems beyond question, and we do not think it was error for the court to permit Mr. Fenter to testify that a short time before the conversation had by Maynard with appellant he had paid to the latter four hundred dollars.

The'evidence shows that Maynard’s skull was fractured and that he suffered a low grade meningitis as a result of the injuries inflicted by the alleged assault. It was not error to refuse a special charge telling the jury that they could not convict appellant of an aggravated assault. An examination of the various exceptions reserved to the charge of the court and of the special charges presented and considered by us, shows that the exceptions to the charge were identical with the special charges asked, none of which it seems to us to be called for by the facts, save those which were given, and the giving of which obviated the necessity for others requested.

Appellant makes complaint in his brief of certain errors in the charge of the court which were not excepted to at the time and insists that for them the ease should be reversed. We regret we can not consider the errors mentioned. The purpose of the law requiring exceptions to the charge before it is read to the jury was to enable the court to then correct his charge in any particulars wherein same might be erroneous, and if the matters complained of in the brief had been excepted to and at the proper time called to the court’s attention, he doubtless would have corrected same.

We deem the facts in evidence sufficient to justify the conclusion reached by the jury, and the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellant makes his motion, for rehearing without the original papers before him, which probably accounts for his assertion that he is deprived of a statement of facts. There appears in the transcript in this case a statement of facts signed and approved by the judge of the trial court, in his certificate appearing the statement that because of the inability of the attorneys to agree on a statement of facts, he now prepares and presents this.

We regret our inability to agree that proof of serious bodily injury, this being the ground of aggravation, is not shown. The matter is discussed to some extent in the original opinion. Maynard, the injured party, said he was in bed for more than a week after the injury, in consequence thereof, and for thirty days suffered pain in his head where he was kicked and beaten. As stated in the opinion, two doctors testified that there was a fracture of the skull and a low grade meningitis which could have resulted in death, insanity or impairment of the senses.

We find nothing in the case to cause us to vary the established rules of this court since the Practice Act of 1913, (Art. 735, et seq., C. C. P.), which requires one who is dissatisfied with the court’s charge to take his exception thereto, and present same in writing to the court below.

What is said and done by parties to a criminal transaction at the time is ordinarily deemed res gestee, and that Maynard, while he was being beaten by appellant and his brother, called to Harper for help, Avould clearly come within the rule of res gestee. Shumate v. State, 38 Texas Crim. Rep. 280.

Appellant renews his complaint of the action of the court below in letting Maynard testify that when he called to Harper for help, the latter did nothing. The qualification of the court below to the bill of exceptions presenting this complaint, and also the statement of facts, raises the issue seriously as to the acting together of appellant, his brother and Harper. It is shown from the above that Harper, appellant and his brother waited at a certain place for a good while until Maynard came along; that when appellant and his brother got off their wagons and advanced toward Maynard, Harper did likewise; that while appellant and his brother were attacking Maynard, Harper stood within a few feet and made no effort to interfere.or to assist Maynard, or prevent appellant and his brother from beating and kicking him, as was done, according to the State witnesses. It the State had offered to prove, in this condition of the record, that Harper made some statement to appellant, aiding and encouraging and inciting him to further attack and injure Maynard, this would have been admissible. We have no doubt of the admissibility of the fact that when called on to help Maynard he refused.

All of the transactions between appellant, Maynard and others, fairly leading up to and connected with the assault and affecting appellant’s acts and attitude in the transaction, would be admissible. If one had plenty of money with which to pay a security debt, and refused to do so when called on but instead attacked and fought the party who called on him to pay such debt, these facts would seem admissible, — as would the fact that he' had no money and was unable to pay in the same situation.

Believing the case was properly disposed of on {he original presentation, the motion for rehearing will be overruled.

Overruled.  