
    CHARLES v. STATE.
    (No. 5746.)
    (Court of Criminal Appeals of Texas.
    April 21, 1920.
    Rehearing Denied June 9, 1920.)
    1. Criminal law <&wkey;366(4) — Recognition of slayer by deceased res gestae.
    A statement made by decedent immediately after defendant shot him, showing his recognition of the defendant as the party who fired the shot, was admissible as res geste.
    2. Witnesses &wkey;>268 (5) — Proper to cross-examine witness as to age.
    On cross-examination of a witness for the state, who testified that he was 16 years of age, defendant had the right to show that the witness was not 16.
    3. Witnesses <&wkey;27l (I) — Census report not made by witness not relevant on cross-examination.
    On cross-examination of a witness for the state, who testified that he was 16 years of age according to information from his mother, court did not err in refusing to permit defendant to examine the witness in connection with a report of the school census made by the father of witness, showing his age as 14.
    4. Witnesses &wkey;>240(4) — Question not leading.
    In a prosecution for homicide, decedent having been shot while plowing, a question by the district attorney, “Well, was that plowed to the end of the row, or partly plowed?” was not objectionable as a leading question.
    5.^ Homicide t&wkey; 170 — Measurements of footprints and foot of defendant admissible.
    A witness, who had measured accurately the footprints of person slaying another and the shoe of accused, could testify to such measurements.
    6. Criminal law <&wkey;419, 420(10) — Objection of hearsay held properly sustained.
    Where on cross-examination of an accomplice in a prosecution for homicide witness was asked whether he had not been told that deceased was a “hpodoo negro,” the court properly sustained state’s objection that it was hearsay.
    7. Criminal law c&wkey;l09l(3) — Bill of exceptions held not to show prejudice in cross-examination.
    A bill of exceptions, reciting that a witness was testifying that he lived about one-half mile from the place where deceased was killed, and that he had not heard a gun “over there” before he left for O. and that on cross-examination district attorney asked witness if he could hear a gun from where deceased was killed to C., did not show any injury to defendant; the answer of the witness not being stated.
    8. Witnesses &wkey;>388(2)— Statement no ground for impeachment where no foundation is laid.
    The mere fact that a witness, testifying for the state in telling about the killing soon after it occurred had not claimed that he had seen two persons at the time of the shooting did not render competent evidence of his statement of the occurrence, the defendant claiming that witness had only seen one person, and had not seen defendant, the mere fact that witness had not included defendant in statement being no ground for impeachment; no predicate having been laid or any question asked the witness as to the statement.
    9. Criminal law <3^1091(3) — Bill held insufficient to show error in examination of witness.
    A bill in a homicide case, reciting that a state’s witness was asked “concerning a matter of the deceased losing some seed cotton some 10 months before the killing, the deceased having charged defendant with the theft of the seed,” was insufficient to present the matter for consideration, the bill not stating defendant’s objection, the answer to the question, nor any of the facts and circumstances that would show whether the matter was material or not.
    10. Criminal law <&wkey;>109l(4) — Bill held insufficient to show error in admission of evidence.
    A bill, reciting that the state “sought to bring out by B. matters concerning some cotton that deceased claimed to have lost some 10 months before the hilling, and deceased claimed that defendant was implicated in getting the cotton,” and that the witness was permitted to testify to a conversation he had with defendant with reference to the matter, did not show that the admission of such testimony was error; it not appearing what the conversation was.
    11. Witnesses <&wkey;345(2) — Impeached by showing charge of murder.
    A witness may be impeached by showing that he is under a charge of murder.
    12. Witnesses <@=359— Details of accusation of murder not admissible.
    Although a. witness may be impeached by showing that he is under a charge of murder details of the murder are not admissible.'
    13. Criminal law <@=l 166(9) — No error in overruling application on ground of absence of witness who later testified.
    A bill of exceptions to the overruling of an application for a continuance on the ground of the absence of a witness will not be considered, where the witness was brought into court and testified.
    14. Criminal law <&wkey;600(3) — Admission after conclusion of testimony of truth of matter to be testified to by absent witness did not relieve of error in denying continuance.
    Admission by district attorney after the conclusion of the testimony that absent witness would have testified as indicated in an application for a continuance, and that his testimony was true, cannot relieve any error of the court in overruling the application for continuance, as such admission by the state’s attorney must be made at the time of overruling a continuance as a means of avoiding such continuance.
    15. Criminal law <&wkey;l 166(9) — Overruling continuance harmless, where other witnesses testified to some facts.
    Error of the court in overruling an application for continuance was harmless, where matters which would be testified to by absent witness were placed before the jury by other witnesses.
    16. Criminal law <@=511 (5) — Evidence held sufficient to corroborate testimony of accomplice.
    In a prosecution for homicide, evidence that a son of decedent saw defendant and the accomplice at the place of the shooting, and as to measurement of tracks, held sufficient to corroborate testimony of an accomplice and to sustain a finding that defendant fired the shot which killed deceased.
    Appeal from District Court, San Jacinto County; J. A. Platt, Judge.
    Jim Charles was convicted of murder, and appeals.
    Affirmed.
    Wm. McMurrey, of Cold Springs, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The trial of appellant resulted in a conviction of murder with the death penalty assessed.

There are two theories involved under the testimony; one that appellant in connection with the accomplice White went into the woods near the field where deceased was plowing, and that appellant shot the deceased, from which shooting he died a few days later. The accomplice testified to these facts. A son of deceased was with his father at the time, and in front of him. The deceased was plowing and walking from the direction from which the shot came, he receiving a shot in the back. The boy was ahead of his father a few feet, and when he heard the shot looked around, and saw defendant and White in the edge of the woods. Appellant had the gun. He holloed at him, expressing his recognition. It is also shown that deceased at the time recognized defendant as the party who shot him. This was a res gestee statement. The sheriff also testified to measurements of tracks of two men in the woods at or near the place where White and appellant were supposed to have been stationed at the time of the shooting. These tracks corresponded with the shoes worn by the two men. There were no exceptions to the charge.

The first bill was reserved to the refusal of the court to permit the cross-examination of the son of deceased as to his age. The bill shows that he testified he was 16 years of age, and had received such information from his mother. Counsel stated to witness he had a report of the school census, and in -connection with this desired to examine the witness. This was objected to by the state because irrelevant and immaterial. Appellant contended that it was relevant, and would be direct testimony as to the age of the boy testifying. The court permitted the boy to testify as to his age, and his information from his mother that such was his age, being 16. The bill does not show the stated age of the boy in this census report. In the testimony, if we should revert to that, it is shown by the census that his father stated the age of the boy to be 14. This report was made in March, 1918, and the killing occurred in August of the same year. The answer of the witness would seem to preclude further examination, as he. had no connection with the report, and it involved no act of his. That the defendant had the right to show the boy was not 16, as the boy testified, is not to be questioned, but from census report we think the examination of the boy would not be material, as it was not his act. Had he made the report, it would have been proper to examine him. The bill is indefinite from any viewpoint of it, and, as it is presented, there could have been no possible error.

Another bill shows that, while the sheriff, Patrick, was testifying he was asked this question by the district attorney:

“Well, was that plowed to the end of the row, or partly plowed ? A. It was .plowed to the end of the row, fonr or five feet from the end of the row.”

The appellant objected to the district attorney leading the witness, and asked that the question be stricken out. The objection was overruled. This would not be termed a leading, question. The bill does not show any attendant fact or circumstance that led to this inquiry.

Another bill recites the same witness was asked with reference to the measurements of the tracks found in the woods to which he had testified. The main objection was that there was no proper predicate laid, and proper measurements were not made. These objections were not well taken. These tracks were measured as stated by the sheriff rather accurately, and this measurement was applied to the shoes of the two men, appellant and White, and found to correspond. This was legitimate. The next bill was in regard to the same matter, and rather an amplification of the former bill in regard to the attendant circumstances and the condition of the ground where the tracks were made, showing that the tracks were easily identified upon the ground; it being soft and damp and the impressions distinct.

Another bill recites that while the accomplice, White, was testifying, on cross-examination he was asked if certain people, “named in the question,” but not 'specified in the bill, had not told witness White that Lester Green “was a hoodoo negro.” The state's objection was sustained. What was the object and purpose of introducing this testimony is not stated, nor are there any connecting facts to show that this testimony was admissible. The state’s objection was that it was hearsay. As presented in this bill, such objection was well taken. If the question of the deceased being a “hoodoo negro” got into the case in such way as to make it a question for examination, it might have been proper to have asked and elicited the answer, but the expected answer is not stated.

Another bill recites that, while White was being cross-examined by defendant, he was asked if he told defendant a day before deceased was shot that he (witness) had killed a tall negro with boots on. The state’s objection was sustained. This bill is too indefinite for consideration.

Another bill recites, while Mr. Kennedy was testifying and had stated he lived in about one-half mile of the place where deceased was killed, and that he had not heard a gun “over there” before he left for Cleveland, on cross-examination the district attorney asked witness if he could hear a gun from where deceased was killed to Cleveland. The answer is not stated. How this could have injured the appellant is not shown by the bill.

Another bill recites that appellant offered the testimony of Elmore Charles. The bill further recites that it developed that Elmore Charles had not been subpeenaed as a witness, and “had been in the courtroom during the examination of other witnesses, and heard a great many of them testify”; that the state had invoked the rule, and objected to the witness testifying on that ground. Appellant insisted that, inasmuch as he had not had time to get his testimony together, and his counsel had not had time to learn, who were witnesses for the defendant, and did not know that Elmore Charles had information that would make him a witness, the court should permit him to testify. The defendant offered to show by this witness that he had heard Lester Green tell about the occurrence soon after it occurred, and that he had not claimed that he had seen two persons at the time of the shooting. The appellant also claimed that Lester Green had only seen one person, and that that person was White, and not defendant. The state objected to this witness being permitted to testify. This is the entire bill. This bill does not manifest error. That Lester Green may- have made a statement at some time with reference to the killing, and had not included appellant, would not subject him to be impeached upon this ground. Had he been called upon to testify in regard to all the facts in the case, or during his testimony his attention had been directed to whether there were more than one person present, and he had stated that there was not, and thereafter testified that two persons were present, it would have subjected him to impeachment. The bill does not even show that Lester Green was asked, while testifying, with reference to any statement he may have made that Elmore Charles may have heard. As the bill presents the matter the ruling of the court is not brought within any of the decisions or any rule of evidence that has been called to our attention that shows error in regard to the ruling. The bill fails to show that a predicate had been laid or any question asked of the witness Green as to these statements.

Another bill recites that the state’s witness Hightower was asked “concerning a matter of the deceased’s losing some seed cotton some 10 months before the killing, the deceased having charged the defendant with the theft of the same, or rather it appeared that defendant had been Implicated in some way.” Appellant objected, the'objection not being stated. It is stated the district attorney asked the question, but it does not give the answer, and none of the facts and- circumstances are set forth in the bill that would show whether this was material or not. Tlie bill is not sufficient to present tbe matter for consideration.

Another bill recites that tbe state “sought to bring out by her witness Billie Norsworthy matters concerning some cotton that deceased claimed to have lost some 10 months before the killing, and deceased claimed that defendant was implicated in getting the cotton.” Objection was urged to this, and the witness was permitted to testify to a conversation he had with defendant with reference to deceased having accused him of stealing the cotton. What that conversation was, otherwise than it was a conversation, is not stated, nor is the ground of objection stated. The bill recites that appellant objected to the introduction of the testimony, and the court overruled it. This may have entered into the motive for the killing. In order to have brought this question before the court for consideration, enough of the facts should have been stated to manifest what the defendant supposed to be error.

While the witness Jenkins was testifying for the state, it developed that he had bqen brought from the county jail to testify. Upon cross-examination this occurred.

“What have they got you in jail for? A. 'For murder — supposed to be murder. Q. Murdering who? A. Jim Wynne. Q. What was his age?”

The state objected to any further examination. The court sustained the objection, and 'would not permit the appellant to go farther into details. There seems to be no error in this matter, nor is it shown what was the purpose of seeking the age of Jim Wynne. That a witness may be impeached by showing that he was under a charge of murder is sustained by the authorities, but the authorities announce the rule that in such impeachment usually the details of the accusation will not be permitted. The same may be said of the following bill of exceptions, as it is upon the same subject, and from the same witness.

There is a bill of exceptions reserved to the action of the court overruling the application for a continuance. There were two witnesses sought, the wife of appellant, and a witness named Oharles who seems to have been in some way related to appellant. The wife of appellant was brought into court- and testified. It is unnecessary to consider the application further as to her. By the other witness, Oharles, appellant expected to show a son of appellant on the evening of’ the killing had been sent by appellant to a certain house for shucks. This house seems to have been not far from where the killing occurred. What effect this testimony would have had upon the case is not made to appear. The testimony shows that the boy was sent for the shucks. The court signs the bill with the qualification that the district attorney, after the conclusion of the testimony, offered to admit before the jury that witness would have testified as indicated, and that his testimony was true. We are of opinion that this does not relieve the error of the court in overruling the continuance, if there was error. Such admission must be made at the time of overruling .the continuance as a means of avoiding such continuance. The reasons for this seem to be obvious. Had the admission of the truthfulness of the statement been made at the time and before the introduction of testimony, the state would have been precluded from contradicting it. The state will not be heard to admit the truthfulness of a statement and then introduce contradictory testimony of that admission. But the matter was testified by witnesses before the jury. Taking the evidence from the statements in the motion for new trial, we are of opinion that whether this testimony was or was not before the jury would not be very material, but the jury had the matter before them anyway for their consideration for whatever it was worth. Viewing the record in the light of the motion for new trial, we are of opinion the court did not commit error in this matter.

It is contended as a final proposition that the evidence is not sufficient to support the conviction. The testimony of White, the accomplice, is corroborated by the son of deceased, who saw both White and appellant at the place of the shooting, and appellant was armed with the gun that fired the shot, and is further corroborated by the sheriff with reference to measurements of tracks. This would justify the jury in arriving at the conclusion that appellant did fire the shot from the woods which killed deceased. The testimony for the defendant shows, both by positive evidence and circumstances, that he was not present. In other words, he himself swore to an alibi, and other witnesses swore to facts which tend strongly to corroborate him. These matters were all before the jury. They heard the witnesses, noticed their manner of testifying, and had the whole matter in front of them, as did the trial court. Under such circumstances this court would scarcely feel justified in setting aside the conviction. This was either an assassination, or it was nothing so far as the appellant is concerned. We would not feel justified in reversing the case for want of sufficient evidence under the stated circumstances.

Finding no reversible error in the judgment, or one that would justify this court in reversing the judgment, it is ordered to be affirmed. 
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