
    HICKOX v. STATE.
    (No. 9743.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.
    Rehearing Denied June 23, 1926.)
    1. Criminal law <@=>1033(1, 2) — Defendant, failing to raise question of absence of order changing' venue in limine, and failing to except to jurisdiction of trial court, cannot complain for first time on appeal (Vernon’s Code Cr. Proc. 1916, art. 744).
    Where defendant did not question in limine absence of transcript of order showing change of venue reserved no exception to jurisdiction of trial court, presumption that proceedings were regular obtains, and, under Vernon’s Code Cr. Proc. 1916, art. 744, defendant cannot complain for first time on appeal.
    2. Criminal law <§=>368(I) — 'Testimony to statements by deceased and defendant’s son, with whom he was quarreling when defendant present, held part of res gestae.
    Testimony as to quarrel between defendant’s son and deceased and latter’s request to defendant to prevent trouble -held admissible as part of res gestae, in prosecution for murder, where accused claimed shooting was in defense of son.
    3. Witnesses <§=>377.
    Testimony on direct examination of state witnesses that they had no ill feeling toward defendant, nor any trouble with him, held not error.
    4. Witnesses <@=>268(I) — Cross-examination of defendant’s son, fighting with deceased at time of shooting, whether he knew any reason why state witness, present when fight began, should testfy falsely against defendant, held proper.
    In prosecution for murder, occurring during fight between deceased and defendant’s son,' cross-examination of son whether he knew any reason why state witness, present when fight began, who contradicted defendant and son, should testify falsely against defendant, held not error.
    5. Criminal law <§=>1091 (4),
    Bill of exceptions, failing to show immateriality of question by state of deceased’s widow in rebuttal, whether she had any children, held not to show error.
    6. Criminal law <@=>l 144(1/2).
    Unless bill of exceptions contains facts showing that matter complained of is objectionable, or such fact be self-evident, trial court is assumed to have acted correctly.
    7. Homicide <@=>309 (I) — Charge that assault and battery causing pain is sufficient to reduce homicide to manslaughter is-sufficient, in absence of showing that assault caused bloodshed.
    Charge stating that assault and battery by deceased causing pain is deemed an adequate cause reducing homicide to manslaughter held sufficient without adding “or bloodshed,” where no claim was made that assault on defendant caused bloodshed.
    8. Homicide <@=48.
    Assault and battery on grown son of accused is not of itself adequate cause reducing homicide to manslaughter.
    9. Homicide <@=>309(1)— Charge that any circumstance rendering defendant incapable of cool reflection is adequate cause for reducing homicide to manslaughter, and that acts of deceased toward defendant or son are to be considered, held sufficient.
    Charge that any circumstance capable of creating in mind of accused such rage or terror as to render him incapable of cool reflection, whether accompanied by bodily pain or not, is adequate cause for reducing homicide to manslaughter. and that all acts of deceased toward defendant or son are to be considered in determining such question, held sufficient.
    10. Homicide <@=>300'(3) — Charge that, in determining whether deceased’s attack caused reasonable fear of death or serious bodily injury to defendant or son, matter should be viewed from standpoint of defendant alone, held proper.
    In prosecution for .murder by defendant shooting deceased during fight with defendant’s son, charge that, in determining whether deceased was making or about to make an attack on defendant or his son causing reasonable fear of death or serious bodily injury, matter should be viewed from standpoint of defendant alone, held proper.
    11. Witnesses <@=>252 — Permitting witness to place parties to homicide in position illustrating her testimony held not erroneous.
    Permitting witness to homicide to place parties in what appeared to her to be similar positions to those occupied by deceased, defendant, and his son, in order to make plain her testimony, held not erroneous.
    12. Criminal law <@=>695(2).
    Objection to cross-examination of witness as immaterial, incompetent, and prejudicial, is too general, and presents nothing for review.
    13. Criminal law <@=>l 169(1) — Rejecting question to defense witness, not relating to anything personal to defendant or to homicide, held not injurious.
    Bill of exceptions complaining of question asked of defense witness relating to absence of one of defendant’s sons, to which objections were sustained, held not to show material injury, where question did not relate to anything personal to defendant or to transaction immediately surrounding homicide.
    14. Homicide <@=>171 (I).
    Question by state’s attorney of defense witnesses whether they saw defendant shoot deceased in back held not objectionable.
    15. Criminal law <@=>451(2) — Question to witnesses removing body of deceased whether they were in position to have seen pistol in deceased’s bootleg if he had one there held properly permitted to rebut defense testimony that pistol was removed from bootleg.
    Where defense witness, in prosecution for murder, testified to seeing pistol removed from bootleg of deceased, it was not error for state in rebuttal to question witnesses who removed body of deceased from scene of shooting if they were in such position relative to deceased’s body that they could have seen pistol if there had been any.
    16. Homicide <§=>163(2).
    Testimony as to witnesses seeing deceased with drunkard prior to killing held properly rejected, in absence of statement that deceased was seen drinking or under influence of liquor.
    17. Homicide <§=>338(3).
    Rejection of testimony by witness that he saw deceased prior to killing with drunkard held not injurious, in view of direct testimony by other defense witnesses that decéased was drinking on night of homicide.
    On Motion for Rehearing.
    18. Criminal law <§=>1169(1)— Defendant, not challenging jurisdiction of trial court, cannot complain of transcript’s failure to show order for change of venue, where statement therein recited regular transfer of all orders from court of indictment to court of trial (Code Cr. Proc. I92S, art. 570 [Vernon’s Code Cr. Proc. 1916, art. 635]).
    Where certificate of clerk of court trying case, made in lieu of transcript under Code Or. Proc. 1925, art. 570 (Vernon’s Code Or. Proc. 1916, art. 635), stated that there was a regular transfer of all orders from court where indictment was presented, and no plea challenging jurisdiction of trial court was made, defendant cannot complain of failure of transcript to show order for change of venue; rules of Court of Criminal Appeals not requiring such order to be incorporated in transcript on appeal.
    19. Homicide <§=>338(2;) — Testimony that witness went with deceased to place of shooting to get some water held not to prejudicially impinge defendánt’s theory of killing in defense of himself or son.
    Testimony by witness that he went with deceased to place where shooting occurred and got some water, offered to show location of parties at time of homicide, held not prejudicial as impinging defendant’s theory of killing in defense of himself or son; place of shooting being immaterial.
    Appeal from District Court, Nolan County; W. P. Leslie, Judge.
    T. F. Hickox was convicted of murder, and he appeals.
    Affirmed.
    Beall, Beall & Beall, of Sweetwater, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.
    Sam D. Stinsom, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Nolan county of murder; punishment, 35 years in the penitentiary. This case was tried in a district court which, under our Constitution, has jurisdiction of felony eases. No sort of plea to the jurisdiction was presented to the trial court, but appellant here insists that his case should be reversed because the recoril contains no transcript of any orders showing a change of venue from Upton county, where the indictment was presented, to Nolan county, where it was tried. If there had been no such transcript on file in the office of the district clerk of Nolan county, at any time when this case was called, or if same, though on file, had been defective, appellant should in some way have brought such matter to the attention of the trial court at a time when the state could have supplied the omission or corrected the defects. Not being thus raised, the presumption of regularity obtains. Haley v. State, 87 Tex. Cr. R. 524, 223 S. W. 202; Biggerstaff v. State, 59 Tex. Cr. R. 575, 129 S. W. 840; Wolfforth v. State, 31 Tex. Cr. R. 396, 20 S. W. 741. Not having raised the point in limine or reserved any exception in the trial court to some action taken by the court upon the question here for the first time raised, appellant is iñ no position to complain. Article 744, Vernon’s C. C. P.; Terrell v. State, 76 Tex. Cr. R. 428, 174 S. W. 1089; Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792. A certified copy of the notes of the official stenographer shows that there was such transcript. •

There are in the record 18 bills of exception complaining of argument made by counsel for the state. There is no discussion of any of these in appellant’s brief further than to refer to the bills by number and to state that the court erred in refusing to give any special charges relative to such argument. No comments appear in the brief, nor are any authorities cited in connection with any of these complaints of the argument. We have carefully considered each of said bills, and find ourselves unable to agree that any of them show error or that they merit extended discussion at our hands. The matters complained of are in no instance self-evident of unfair deductions from matters which might be in the record, nor do they manifest any abuse or bring before the jury any matters dehors the record.

Bills of exception Nos. 19 and 20 complain that witness Neville was permitted to state acts and words of himself, deceased, and Tom Hickox, a son of appellant; the contention being that same were not in the presence and hearing of appellant and not binding on him. Substantially these same complaints were made upon a former appeal. See Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823, and there decided adversely to appellant. We do not regard Archer v. State, 98 Tex. Cr. R. 91, 263 S. W. 305, as any authority for now holding these facts inadmissible. What was done and said by the accused in the Archer Case was not at the time and place of the homicide and formed no part of its res gestee, but the facts before us are different. The matter liere complained of was tlie beginning of a difficulty wbicb continued in progress and was transpiring wben defendant approached, and in-which he took part by shooting deceased. No physical encounter between Tom Hickox and deceased had taken place before appellant came up, and that he was present while deceased and Tom Hickox were clinched and struggling is manifest. It is made to appear by the state’s testimony that, before said parties began their physical encounter, deceased appealed to appellant to induce Tom not to have any trouble, following which Tom Hickox struck deceased, who grappled with him, and that appellant then shot deceased. We see no reason for holding differently in regard to this matter from what we formerly held. The evidence was admissible.

No error appears in allowing state witnesses, who may have given testimony injurious to appellant, to state on direct examination that they had no ill feeling toward the accused, nor had they had trouble with hiña. Complaint of this appears in several bills of exception. The authorities cited by appellant, viz. Jacobs v. State, 42 Tex. Cr. R. 353, 59 S. W. 1111, and Rutherford v. State (Tex. Cr. App.) 67 S. W. 100, go no further than to state the well-known rule that the mere contradiction of the testimony of a witness gives no right to the party introducing him to prove his general good reputation for truth and veracity. The fact that a witness has no private or personal interests to advance by distorting the truth is calculated to create confidence in his credibility, and. such being the case, it would seem not erroneous to allow the witness to make such statements.

Somewhat akin to the above is the complaint made because the state on cross-examination of Tom Hickox was permitted to ask him if he knew any reason why state witness Neville should testify falsely against his father. Neville had testified, and his testimony was directly contradictory to that of appellant and his son, Tom. On its cross-examination of Tom, the state elicited from him the fact that Neville was present when the difficulty which ended in the homicide began. It being apparent that the testimony of appellant and his son, and that of Neville, could not all be true, we see no reason why the state might not make such inquiry.

Bill of exceptions No. 49 merely sets out that in its rebuttal testimony the state introduced the widow of deceased and asked her, among other things: “Have you any children?” This was objected to as immaterial and prejudicial. We have no means of knowing whether this testimony was material to any issue in the case or not. There is absolutely nothing in the bill from which we may get information as to antecedent facts or the surroundings or setting of this question. We uniformly hold that, unless the bill contains facts which show that the matter complained of is objectionable, or such fact be self-evident, we must assume that the trial court acted correctly in such matter.

Appellant urges that an exception to the charge of the court, which is as follows:

“Defendant objects to the court’s charge on manslaughter, and especially to section 1 of paragraph 10, because the same is too abstract in form and does not enlighten the jury as to the real meaning thereof, and is misleading, and because the court, instead thereof, does not instruct the jury in plain language that an assault and battery of one person upon another causing pain is deemed in law an adequate cause to produce, in the mind of the person so assaulted a degree of anger, rage, sudden resentment, or terror sufficiént to render the mind of such person so assaulted incapable of cool reflection ”

■ — should have been sustained. Section 1 of paragraph 10 of the charge thus attacked is as follows:

“The following are deemed adequate causes: (1) An assault and battery by the deceased causing pain,” etc.

We are unable to agree with appellant’s position. The court had given the jury the statutory definition of manslaughter, and followed same by a statement of what would constitute adequate cause in which', among other things, occurs the language objected to. Same was a plain, unambiguous statement of a statutory definition and would have been in the exact language of the statute if it had added thereto the words “or bloodshed.” It not being claimed that the assault by deceased upon appellant, testified to by appellant and his witnesses, caused any bloodshed, this left the matter in such shape as that the statement objected to seemed entirely correct. Bearden v. State, 44 Tex. Cr. R. 583, 73 S. W. 17.

We know of no precedent holding good an exception to the charge for not submitting to the jury the proposition that an assault and battery on a third person in the presence of the accused, even though such third person be the grown son of the accused, may be considered by the jury as adequate cause to reduce a homicide to manslaughter. In this case the charge told the jury fully that any circumstance or condition which was capable of creating and did create in the mind of the accused such rage, anger, sudden resentment, or terror as to render it incapable of cool reflection, whether accompanied by bodily pain or not, would be deemed adequate cause, and that, if there appeared 'several such causes, it was for the .jury to determine whether all the causes combined were sufficient to constitute such adequate cause; also that, in determining the question, all the facts and circumstances in evidence, including the acts and conduct of deceased, if any, toward appellant or his son, should be considered. We think the charge in that part just referred to must have been changed after appellant’s third exception thereto was presented, for same seems full and adequate on the point.

This seems true of appellant’s exception to the Sixteenth paragraph of the charge. The court therein does tell the jury that the reasonable apprehension of death or serious bodily injury is to be determined “from the defendant’s standpoint at the time,” which language must have been inserted after the exception was presented. We, also, note that in paragraph 17 of the charge, which applies the law to the facts in submitting the theory of self-defense, the court told the jury that, in determining whether the deceased was making or about to make an attack on appellant or his son, which from the manner and character of same, etc., caused him to have a reasonable expectation or fear of death or' serious bodily injury to him or his son, the matter should be viewed from the standpoint of the accused' alone. We think the exception to this part of the charge is without merit.

A number of exceptions to the court’s charge are submitted in the brief accompanied by neither citation of authorities nor discussion of the facts supporting the contention as to said supposed errors. An examination of the charge of the court as a whole fails to convince us that any of these matters present error.

That a witness who saw the homicide was allowed, over objection, to place parties in what appeared to her to be the same or similar positions to those occupied by deceased, appellant, and his son, Tom, in order to make plain her testimony regarding the affair, seems not erroneous.

In the cross-examination of a defense witness it was developed that at a former time he had been engaged in the saloon business. The objection to this was that it was immaterial, incompetent, and prejudicial. Such objections are too general and bring before us nothing for review. There is also a bill complaining of a question asked a defense witness by the state relating solely to the absence of Jim Hickox, another son of appellant, to which the objections made by the defense were sustained: Nothing personal to the appellant or relating to the transaction immediately surrounding the homicide appeared in the questions thus objected to, and we perceive no material injury in the matter.

There is a complaint directed at the action of the state’s attorney in askipg two defense witnesses if they saw appellant shoot deceased in the back. The state’s contention herein was that appellant did so shoot deceased, and it is not clear to us how the questions could be deemed objectionable.

A defense witness testified that, after the body of deceased had been removed to a certain place, he saw a party remove a pistol from the bootleg of deceased. In its rebuttal the state introduced several witnesses who helped to carry the body of deceased from the place where he was shot to the place where the defense claimed the pistol to have been taken from the bootleg. Another witness who worked over the body was introduced by the state. These witnesses testified to facts showing their opportunity for observation and asserted that no pistol was taken from said bootleg. We do not believe it erroneous for the state to be allowed to ask these witnesses if they were in such position and attitude relative to the body of deceased as that they could and would have seen if there had been any pistol in his bootleg. In our opinion, under the facts of this case, the testimony objected to was but a shorthand rendition of what the witnesses had seen and dealt with, and was a statement of their knowledge which might not otherwise have been expressed in words. Christie v. State, 69 Tex. Cr. R. 598, 155 S. W. 541; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Hardin v. State, 8 Tex. App. 653; Irvine v. State, 26 Tex. App. 37, 9 S. W. 55; Strickland v. State, 71 Tex. Cr. R. 582, 161 S. W. 110; Thompson v. State, 19 Tex. App. 593; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345.

In the absence of any statement that he saw deceased drinking or any conduct on the part of deceased from which the jury might conclude that deceased was under the ■influence of liquor, it was proper to reject the testimony of a witness proposing to state that he saw deceased prior to the killing with a man who was drunk and rowdy. There are no facts stated in the bill of exceptions presenting this complaint from which the materiality of same appears. We might say in this connection that, while the absence of such facts from the bill makes it defective, no injury could have resulted to appellant from the rejection of the testimony, because there was positive and direct testimony on the part of a number of witnesses for the defense to the fact that deceased was drinking on the night of the homicide.

There are some other matters complained of by bills of exception which we have not discussed. There are no bills of exception in the record which have not received our careful consideration. This is the second trial and conviction of appellant. He seems to have been-ably defended, and all the matters deemed of avail upon appeal were preserved and brought to this court. The facts will be found in the former opinion sufficiently stated.

Believing appellant to have had a fair trial, and that no errors are manifested in this record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant complains of our holding against his plea, presented for the first time in this court, that the record fails to show how the district court of Nolan county acquired jurisdiction to try the case upon an indictment which had been returned in Upton county. There being no possible doubt of tbe jurisdiction of tbe district court of Nolan county over tbe subject-matter of tbis case, and none raised, as to tbe fact or tbe regularity of a change of venue, and no sort of plea to tbe jurisdiction of tbe person of appellant when the case was called for trial in Nolan county, we adhere to our former conclusion that the uniform presumption of regularity would obtain. In addition to said presumption, however, we call attention to what was not mentioned in our former opinion, viz.: The fact tl?at in tbis transcript, over tbe certificate of tbe clerk of tbe district court to all tbe matters therein contained, appears a statement that there was a regular transfer of all orders and things bad and done in tbis case from tbe district court of TJpton county to tbe district court of Nolan county, and no objections or exceptions either by tbe sta.te or the defendant to tbe jurisdiction of tbis cause in Nolan county. No contest is here made of tbe truth of tbis statement which we suppose to have been made by tbe clerk of tbe district court in lieu of an extended copy of tbe transcript referred to in article'570, 1925 O. C. P. (old article 635, Vernon’s O. O. P.); there being nothing in tbe rules laid down on page XXIV, 142 S. W., referring to tbe contents of transcripts on appeal to this court, which would require that the orders, etc., on a change of venue, be incorporated in such transcript on appeal. Such transcript is primarily for the information and satisfaction of tbe trial court who finds pending on bis docket a felony case in which appears no exceptions or complaint of tbe regularity of tbe change of venue which brings the case upon his docket. See 12 Oye. p. 251. Being so satisfied, and there being no contest over the matter, the trial court would proceed to try the case.

We think the cases cited by appellant in reference to the transfer of misdemeanor cases originating by indictment not applicable, and especially under facts such as appear in the record before us.

It appearing to the satisfaction of tbe trial court that all matters pertaining to the change of venue were regular, and.thei’e being no complaint in the trial court where, upon presentation of such complaint, any mere irregularity might be considered and remedied if possible, we hold appellant’s complaint in this regard without merit. In the Bird Case, 49 Tex. Cr. R. 205, 91 S. W. 791, the question of the validity of the transfer óf a misdemeanor case was raised first in the trial court. It was made to appear that no order of transfer had been made. We find nothing in the other cases cited by appellant showing how or when the question as to the validity of the order of transfer, or the absence of the order of transfer, was raised.

Appellant renews complaint of the admission of Neville’s testimony. It is referred to in our former opinion as bills of exception Nos. 19 and 20. Tbe testimony objected to in bill No. 19 was that of Neville, who said that he had a conversation with Schrier (deceased) and right after the conversation he and Schrier went to the west side of the building (■referring to the garage building where the killing took place) and got some water from a hydrant. We confess our entire inability to see how this testimony, which would seem but leading up to and showing the location of the parties at the time of the fatal encounter, could be held to impinge on appellant’s theory of a killing in defense of himself or Tom Hickox. The theory of self-defense, if any in this case, was in no way.affected by the question as to whether Schrier was in one part of the building or another. The testimony complained of in bill of exceptions No. 20 wás that of Neville, who stated, in substance : That while he and deceased were standing by the hydrant mentioned, the hand of deceased being on the shoulder of witness, young Tom I-Iickox came up, shook hands with witness, and then turned to deceased, and said: ‘What did you beat up my little brother for?” — to which deceased replied that he did not beat him up, and Tom said he was a damn liar; he did. That appellant was not present at this time.

• The court in approving the bill certifies that he admitted tbe testimony because it was part of the res gestee; that while deceased and Tom were quarreling, as set out, appellant came in, walked around them, and shook hands with Neville, whereupon deceased spoke to appellant, and said: “Mr. Hickox, speak to Tom; I don’t want to have any trouble with him.” No blows had passed between deceased and Tom up to this time, and appellant was present when Tom struck deceased and the physical encounter began. We must again confess our inability to see how the inadmissibility of this testimony can be determined or affected by anything we said in Archer v. State, 98 Tex. Cr. R. 91, 263 S. W. 305, or Wooley v. State (Tex. Cr. App.) 64 S. W. 1054. In tbe latter case Phillips and his wife swore that on the morning of the homicide and prior thereto deceased told them he was going to Griffiths’ to look for work, and was going through Wooley’s field., Deceased was shot at the edge of Wooley’s field. Appellant claimed that he went to the field to shoot a hawk and was there attacked by deceased, who was at an unusual and unexpected place, and that he shot deceased in self-defense. Manifestly proof that deceased, unknown to the accused, had told parties that he was going to the unusual and unexpected place on a peaceful and lawful mission when and where appellant claimed he was attacked by deceased and had to defend himself, would likely be appropriated by the jury to the, detriment of the defensive theory. So in Archer’s Case, supra, wherein we held incompetent statements of the deceased prior to the fatal difficulty indicative of a peaceful purpose on his part in going to where the encounter took place, we said:

“An examination of these authorities will reveal that, in so far as they here apply, they uphold the rule that, if one charged with murder knew or was informed prior to the homicide of the motive, purpose, reason, declarations, or acts of deceased, proof of the same is admissible if it tends to solve any issue in the case; that a defendant can only be bound so far as matters reasonably appeared to him at the tjrne he acted; that proof of deceased’s undisclosed reason or motive in being where he was, or in going to the scene of the homicide, or proof as to his real destination, if unknown to defendant at the time he acted, is not admissible against him where it tends to affect his defensive theory.”

The point in said two cases just mentioned, and that in the testimony here being discussed, seems wholly at variance. In both the Wooley and Archer Oases, supra, deceased informed other parties, prior to going to the locality where the fatal encounter took place, that he was going upon a peaceful mission and purpose; the facts in- testimony as to what occurred thereafter being wholly at variance with the proposition that deceased did go there for a peaceful purpose. We held that these matters of undisclosed purpose on the part of deceased were inadmissible. In the case before us it appears entirely immaterial whether deceased was in one part of the -garage or another at the time he was approached by Tom Hickox and the quarrel between the two began. Wherever they were would not affect hurtfully the defensive theory. The fact that they were quarreling when appellant walked in, and that, following the appeal made to appellant by deceased to speak to appellant’s son, the latter struck deceased, following which appellant shot, as he claimed, in defense of his son, was a part of the transaction and res gestae thereof.

Being'unable to agree with any of the contentions made in appellant’s motion, same will be overruled. 
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