
    HAYS v. STATE.
    (No. 7631.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.)
    1. Criminal law <&wkey;145 — Prejudice in county to which a case transferred not ground for demurrer to jurisdiction, but available only by application for another change of venue.
    Under Code Cr. Proc. 1911,- art. 631, expressly directing that, if the venue in a criminal case be changed, it shall be sent to that county whose courthouse is nearest that in which the case is pending, unless it be made to appear to the satisfaction of the court that such nearest county is subject to some objection 'sufficient to authorize a change of venue in the first instance, the objection of accused to change of ■venue to the nearest county on the ground of prejudice, and his reservation of a hill of exceptions to the action of the court in ordering the venue changed .to such county, is not sufficient as the foundation for a plea to the jurisdiction of the court to which the . venue is changed nor will it avail the accused on appeal; but, if such prejudice exists, it is incumbent on accused, when his case is called for trial m the' county to which transferred; to sét up such fact and properly support it.
    2. Criminal law &wkey;366(3), 419, 420(6)— Statements of deceased held admissible.
    In a prosecution for murder, where a witness came on deceased while he was lying apparently helpless from the wounds inflicted on him, and shortly afterward defendant and an accomplice came back to the place of the quarrel, the testimony of such witness, showing that the accomplice drew a pistol on him and' commanded that he know nothing of what had occurred, all of which took place in' the presence of the victim, 'who was but a few y'árds -away, helé, that testimony as to the statements and declarations, made by deceased to witness while he was suffering great pain, evidently from his wounds, was admissible as against the objections that they were hearsay and not res geste.
    3. Criminal law &wkey;>!09l(2) — Bill of exceptions must disclose facts on which error claimed..
    Errors complained of must be made to appear by the contents of the bill of exception itself,-and the appellate court will not. be required to search' through the entire record, in an effort to'-'find out if the facts' stated as the grounds of objection are true. ■"'
    
      4. Homicide <§=>300(3), 301 — Instructions on self-defense and defense of another not erroneous.
    In a prosecution for murder, an instruction that defendant had the right to kill in self-defense, if it .appeared that deceased was making, or about to make, an attack on his brother, or on himself, held not erroneous.
    5. Homicide <§=>301 — Instruction as to accused’s right to kill in defense of brother not objectionable, as erroneous placing burden of proof.
    An instruction that accused would have the same right to defend his brother from an attack or threatened danger from deceased that the brother would have, and to the same extent, was not objectionable as placing on defendant the burden of showing that his brother was justified in killing deceased.
    6. Homicide <§=>301 — Instruction as to defendant’s knowledge that his brother provoked difficulty with deceased held not erroneous.
    In a prosecution for homicide, where the testimony tended to show that accused, with his brother and another, accomplice, participated in the crime, an instruction that, if defendant’s brother provoked the difficulty for the purpose of slaying deceased, and he did so kill in pursuance of said purpose, defendant could not justify on the ground of defense of his brother, provided the jury believed beyond a reasonable doubt that defendant knew of the provocation of such difficulty by his brother, but that, if the brother did not provoke such difficulty but was attacked by deceased, then defendant would have the right to defend him to any extent the facts and circumstances seem to call for, held not erroneous, as depriving accused of any right he might have, in case he did not know his brother’s purpose in, provoking the difficulty.
    7. Homicide <§=>309(6) — Instruction on manslaughter properly refused, where defendant denied facts on which) it might have been given.
    In a prosecution for manslaughter, where the testimony tended to show that accused participated with his brother and another in the crime, a requested charge on the issue of manslaughter, based on the proposition that accused and his associates had agreed to make an assault on deceased, but not to inflict death or serious bodily injuries, held correctly refused, where defendant denied positively any sort of agreement with his associates to assault deceased.
    8. Homicide <§=>300(12) — Instruction on self-defense, singling out portion of facts, properly refused.
    A requested instruction, singling out certain . facts and enumerating them, and asking that on the jury’s belief of such facts they should find that accused had not forfeited his right of self-defense, was correctly refused, as omitting other reasons, based on the evidence, which, if believed 'by the jury, would deny defendant’s right of self-defense, and make him guilty of unlawful homicide.
    9.Homicide <§=>250 — Evidence held sufficient to warrant conviction for murder.
    Evidence held sufficient to warrant conviction for murder.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Simeon Hays was convicted Of murder, and he appeals.
    Affirmed.
    Sid Crumpton and I>. E. Keeney, both of Texarkana, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Cass county of the offense of murder, and his punishment fixed at 20 years in the penitentiary. This case has been before this court on a former appeal, and reference is made to Hays v. State, 90 Tex. Cr. R. 192, 236 S. W. 463, for a statement of the facts herein involved.

Noting appellant’s first contention, we observe that article 631, C. C. P., in express terms directs that, if the venue in a criminal case be changed, it shall be sent to that county whose courthouse is nearest that in which the case is pending, “unless it be made to appear to the satisfaction of the court that such nearest county is subject to some objection sufficient to authorize a change of venue in the first instance.” That the accused objects to the change of venue of his case to the nearest county, upon the ground that there exists in such county prejudice which would prevent his there obtaining a fair and impartial trial, and that he reserves a bill of exceptions to the action of the court in ordering the venue changed to such county, will not suffice as the foundation for a. plea to the jurisdiction of the cou.rt to which the venue is changed, nor avail the accused on appeal. If prejudice exists in the county to which the venue is changed, it is incumbent upon the accused to set up such fact, and properly support it when his case is called for trial in the county to which transferred, and there ask for a change of venue to some other county. So in this case the objection by appellant to the change of venue of his case from Bowie county to Gass county, not being followed by an application for a change of venue from the latter county, when his case was there called for trial, gave him no right to demur to the jurisdiction of the Gass county district court, and cannot here avail him. Cox v. State, 8 Tex. App. 283, 34 Am. Rep. 746; Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451; Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751; Sapp v. State, 87 Tex. Cr. 612, 223 S. W. 459.

Appellant objects to statements made by deceased to one Hatcher, which were offered in evidence - by the state. How long this occurred after the shooting and cutting of deceased is not shown hy the bill of exceptions, but from the court’s qualification it is made to appear that it was a short time. The acts and conduct of Barnes in then drawing a pistol on Hatcher and demanding that he know nothing of what had occurred, all of which took place in the presence of appellant, who was but a few yards away, as set out in the court’s qualification to bills of exception Nos. 2 and 3, would seem admissible, and not open to the objection made by appellant that this was hearsay, and not res gestse. Hatcher and one Tittle came up to the car in which deceased was lying, apparently helpless from the wounds inflicted upon him, and shortly afterward appellant and Barnes came back to the place where the difficulty in which the wounds were inflicted upon deceased took place, and at this time the conversation between Barnes. and Hatcher came up. According to Tittle’s testimony, both appellant and Barnes demanded that they know nothing. Hatcher testified that, when the car came up in which appellant and Barnes were, appellant told him they were in a hell of a fix, and that it all came up from a curse fight he had had with deceased and witness on Thursday before. In the course of the conversation appellant, referring to deceased, said, “Let the son of a bitch lie there, and let the justice of the peace find him in the morning,” but finally agreed to let witness and Tittle take deceased away, upon the condition that they would know nothing about the fact that appellant and Barnes had come hack down there. The testimony seems ample to support the proposition that appellant, Barnes, and Tom Hays, brother of appellant, were acting together in the difficulty which resulted in the death of deceased.

From the dying declaration of deceased, we would conclude that appellant was one of the prime movers in bringing about the homicide. If Hatcher told the truth when on the witness stand, it would seem that the one of the three who had a grudge against deceased was this appellant, growing out of a difficulty two or three days before the homicide, and the trouble that then came up was attributed to this difficulty in a statement made by appellant to Hatcher. We do not believe the court erred in admitting the testimony complained of in appellant’s hills of exception Nos. 2, 3, and 4. The statement made by deceased, complained of in bill of exceptions No. 4, was made when he was suffering great pain, evidently from his wounds, and was made to Hatcher and Tittle when they first came to'the car and found him therein. It was substantially in accord with his dying declaration, which was admitted in evidence.

By his bill of exception No. 5 appellant complains that Hatcher was allowed to testify that deceased told him that the defendant and Tom Hays were going to try to get him to go squirrel hunting with them on Friday before the difficulty on Sunday night, and that deceased said'he knew what they wanted him to go for, and that he was not going. The objections made to this were that it was hearsay, and was the undisclosed motive of acts and words of deceased, and was not known to defendant. None of said objections are shown by the contents of the bill of exceptions to be in fact well founded. This court must presume that within the knowledge of the trial court there was no foundation for such objections and that his action in overruling same was-correct. This applies also to bills of exception Nos. 6 and 7. The rule applicable has been often stated, and is well understood, that the error complained of must be made to appear by the contents of the bill of exception itself, and we will not be compelled to search through the entire record in an effort to find out if the facts stated as the grounds of objection are true.

Paragraph 27 of the court’s charge gives to the accused the right to kill in self-defense if it appeared to him that deceased was making or about to make an attack on Tom Hays, or if he believed deceased was about to attack appellant, or if deceased was in fact about to attack him, or if deceased made such attack. We do not think this part of the court’s charge open to the objection made to it by appellant. In fact, the bill as qualified by the learned trial court shows that the main charge was changed to conform to the exceptions presented.

The charge that appellant would have the same right to defend his brother Tom Hays, upon threatened danger from deceased, that Tom would have, and to the same extent, and that if the jury found that Tom Hays killed deceased, and was justified in so doing -under the instructions given, they would acquit appellant, was not subject to any exception that it put upon appellant the burden of showing that his brother Tom was justified in killing deceased.

Paragraph 31 of the court’s charge submitted the theory that if Tom Hays provoked the difficulty with deceased for the purpose of slaying him, and he did so kill in pursuance of said purpose, appellant could not justify on the ground of self-defense of his brother, provided the jury believed beyond a reasonable doubt that appellant knew of the provocation of such difficulty by Tom Hays; but if Tom Hays did not provoke such difficulty, but was attacked by deceased, then appellant would have the right to defend Tom to any extent the facts and circumstances seem to call for. We cannot agree with appellant that this deprived him of any right he might have in ease he did not know Tom’s purpose in provoking the difficulty, if any. The other exceptions to this paragraph of the charge were fully met in another portion of same.

The court’s charge fully submitted the law of manslaughter, and in our opinion the special charge asked by appellant on this issue, based on the proposition that he, his brother, and Barnes had agreed to make an assault upon deceased but not to inflict death or serious bodily injury, etc., was correctly refused. Appellant denied positively any sort of agreement with his brother and Barnes to assault deceased, and we find nothing in the record suggesting an agreement on the part of said parties to act together in the accomplishment of a less purpose than his death.

Appellant’s special charge No. 2, singling out certain facts and enumerating them, and asking that upon the jury’s belief of such facts they should find that' he had not forfeited his right of self-defense, was correctly refused. There were many other reasons seemingly based on legitimate testimony in the record, which, if believed by the jury, would deny appellant’s right of self-defense and make him guilty of unlawful homicide, other than the fact that, even though he was at his car when Barnes and Tom Hays began the difficulty with deceased, and that Tom Hays said he was shot, and that appellant went to where they were with a pistol in his hand.

We regret our inability to agree with distinguished counsel for appellant, who by his brief and oral argument so forcibly insists that the evidence does not justify the verdict. Appellant had rather a serious misunderstanding with deceased land witness Hatcher on Thursday before the killing on Sunday night, and according to the state’s testimony had then threatened both of them. On Friday appellant and his brother seem to have invited deceased to go squirrel hunting with them, which invitation he .declined to accept. This homicide occurred Sunday night on the way home from a dance. Appellant was driving the car in which his brother, Roy Barnes, and some others were, and the car was stopped twice in the road, just in front of the car occupied by deceased and his party. At the second stop the fatal difficulty took place. Deceased was cut 19 times with a knife or, some sharp instrument, had contused wounds on his head, and was shot in the back, the bullet penetrating his spinal cord. He died a few days after the difficulty from pneumonia caused by knife wounds in his lungs. Before he died he made a statement, which was admitted in evidence, which, if true, shows the active participation of appellant in the various attacks upon deceased, and that appellant shot him and was encouraging and urging on the others throughout the difficulty. The parties in the car with deceased became so alarmed that they went away and left him at the scene helpless in the ear. Appellant and Barnes came in their car back to the place of the difficulty shortly thereafter, and appellant' there stated to state witness Hatcher that the curse, fight with deceased on the Thursday preceding brought about this trouble. Other witnesses testified to the participation of appellant in the difficulty.

Without further reviewing the facts, we are of opinion they are sufficient to support the verdict, and, finding no reversible error in the record, an affirmance will be ordered. 
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