
    HUGHES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1912.
    Rehearing Denied Jan. 22, 1913.)
    1. Criminal Daw (§ 1192) — Jurisdiction— State Courts — District Court.
    The Constitution gives the district court exclusive jurisdiction of all criminal cases of the grade of a felony, and Code Cr. Proc. 1911, arts. 89, 771, 845, respectively, provide that upon the trial of a felony case, whether the proof develop a felony or misdemeanor, the court shall determine the ease as to any offense included in the charge; that, where a prosecution is for an offense consisting of several degrees, the jury may find the defendant guilty of any degree inferior to that charged in the indictment; and that the effect of a new trial is to place the cause in the same position as it was before any trial was had. Held that, where accused was indicted for assault with intent to murder, the reversal on appeal of a conviction of an aggravated assault will not, in view of Code Cr. Proc. 1911, art. 945, providing that, where the Court of Criminal Appeals awards a new trial, the cause shall stand as it would have stood if a new trial had been granted by the court below, deprive the district court of jurisdiction to hear the case upon retrial, though the county court has original jurisdiction of misdemeanors.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3231-3240; Dec. Dig. § 1192.]
    2. Criminal Daw (§ 543) — Evidence—Testimony at Examining Trial.
    A written transcript of the testimony of a witness given at accused’s examining trial, at which he was present and had an opportunity to cross-examine, is admissible at a subsequent trial, where the witness is beyond the jurisdiction of the court.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    3. Criminal Daw (§ 695) — Trial — Objections— Evidence Admissible in Part.
    Where part of the testimony of an absent witness was admissible, an objection to the whole is properly overruled, it being necessary to point out the improper parts.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1633-1638; Dea Dig. § 695.]
    4. Criminal Daw (§ 392) — Trial — Evidence.
    In a prosecution for assault with intent to murder, the fact that the assaulted party was dead, and that another spectator was out of the state, may be shown 'before the jury to explain why their evidence at the examining-trial was read.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 852; Dee. Dig. § 392.]
    5. Criminal Daw (§ 417) — Evidence—Declarations oe Third Persons — Family History.
    A letter by a father who lived in a foreign state to his son who resided in the domestic state, informing him of the death of the prosecuting witness, another son, who resided with the father, is admissible to prove such death.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    6. Criminal Daw (§ 1091) — Appeal—Bill oe Exceptions.
    A bill of exceptions complaining of the admission of evidence should within itself make a sufficient statement of the facts to show whether error was committed.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2803, 2815, 2S16, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Criminal Daw (§ 1169) — Appeal—Harmless Error.
    Where the written testimony of an absent witness was admitted, the admission of a letter showing him to be a bona fide nonresident, and that he would not at the request of the prosecutor return to testify, is harmless, where his nonresidence was otherwise clearly shown.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3088, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Potter County; Jno. W. Veale, Special Judge.
    Duther Hughes was convicted of crime, and he appeals.
    Affirmed.
    Cooper, Merrill & Dumpkin, of Amarillo, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was indicted for an assault with intent to murder. In the first trial he was convicted of an aggravated assault. That conviction on appeal was reversed by this court, and is reported in 62 Tex. Cr. R. 288, 136 S. W. 1068.

A sufficient- statement is made on the former appeal to render it unnecessary to further restate the case on this appeal. When the cause was called in the district court for this trial, the appellant made a motion to transfer the ease to the county court, contending that as appellant now could be tried and convicted only of an aggravated assault, which is a misdemeanor, that the district court no longer had jurisdiction to try the case. The court correctly overruled this motion, holding that the district court had jurisdiction to try it. Appellant cites us to the provision of the Constitution giving county courts and not district courts jurisdiction of certain misdemeanors and the statute (C. C. P. art. 98), stating that the county courts shall have exclusive original jurisdiction of misdemeanors, except those involving official misconduct, where the highest penalty or fine that may be imposed exceeds $200, and the case of Robles v. State, 38 Tex. Cr. R. 81, 41 S. W. 620. In our opinion the Constitution and statutory provision cited by appellant are not in point.

Our Constitution gives the district court exclusive jurisdiction in all criminal cases of the grade of felony. The indictment in this case was for a felony. Under our law, both statutory and decisions, where an offense charged by indictment is for a felony, but it consists of different degrees, the jury may find the defendant not guilty of the higher, but guilty of any inferior, grade, and in such case the district court, originally having exclusive jurisdiction, has it also for a lesser degree, though a misdemeanor. C. O. P. art. 771. Again, article 89, C. C. P., is: “Upon the trial of a felony case, whether the proof develop a felony or a misdemeanor, the court shall hear and determine the case as to any degree of offense included in the charge.” Then article 843, C. C. P., is: “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place.” And article 945, G. O. P., is: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.” The case of Robles, supra, cited and relied upon by appellant, we think is in point against his contention. In that case there were two counts in the indictment. One for a felony, the other for a misdemeanor. The report of the case does not indicate whether appellant had been tried formerly for the felony and acquitted, or whether the state abandoned that and tried it on the misdemeanor count only, but the opinion holds, in effect, that, however the felony count was disposed of, it left only a misdemeanor count on which the case could be tried, and the district court had no jurisdiction. The opinion in that case on this .point is: “If the indictment charges a felonious theft, * * * and on the trial the proof fails to show a felony, a misdemeanor conviction can be had. In that character of case the jurisdiction of the district court, having attached by reason of the felony charge, would not be lost by reason of the proof to sustain such felony. The aver-ments of the indictment in that case showing a felony would confer jurisdiction upon the district court, and would exclude jurisdiction of the county court to entertain the indictment. The district court having acquired jurisdiction in such character of ease could retain it to its final termination. To hold otherwise would 'lead to interminable confusion.” To the same effect is Nance v. State, 21 Tex. App. 457, 1 S. W. 448, and eases therein cited.

Appellant also contends that the court erred in holding two of the jurors competent, and in not sustaining his challenge for cause thereof. The two bills presenting these questions, as a whole, show that these jurors were qualified, and did not disqualify themselves on their voir dire examination strictly in accordance with -our statute and the decisions thereunder. Article 692, C. C. P., subd. 13, and decisions cited thereunder. Appellant, in oral argument, conceded that the statute and decisions are against him, but contended that they were wrong, and that this court should so hold. In our opinion the statute and the decisions are right, and we have no disposition to hold otherwise.

By another bill it is shown that, when this offense was first charged against appellant, he had an examining trial at which he was present, represented by an attorney, and cross-examined, or had the opportunity to cross-examine the witnesses against him. On that trial a witness by the name of W.

R. Lewis testified. This testimony was identified, proven up in full, and offered in evidence on the trial. Appellant objected to the whole of it (1) because it is not shown that the witness was a nonresident of the stale and at the time of the trial was residing beyond its limits; (2) a portion of said testimony was hearsay, and not in the presence of the defendant, and could not be" binding upon him; (3) that the testimony was written down by the district attorney at the time, and not correctly so. The court in approving the bill explained it and stated that, while the testimony was written down by the district attorney, it was fully and correctly so, and was afterwards read over to, or read by, the witness, and signed by him. It will be noticed that appellant’s objections were raeré objections, not approved as facts by the court. Unquestionably part of the testimony was admissible. If we could look to the record outside of appellant’s objections, the proof was clear that the witness had removed, and was residing permanently beyond the jurisdiction of this state and in the state of California. This bill shows no error whatever. The witness being beyond the jurisdiction of the court, his testimony given at the examining trial, properly proven up, was admissible against appellant. Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533.

A part of the testimony being admissible, when the objections were to the whole, and did not specify nor single out that part of the testimony which was claimed to be hearsay, presents no error. Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; 1 Thompson on Trials, § 696.

Appellant is not correct in his contention that proof of the fact of the absence out of the state of said witness Lewis and the death of the assaulted party, Short, could not be shown before the -jury as a reason why they were not present in person and did not testify, for the jury had the right to know why the written evidence on a former trial of these witnesses was read before them, instead of the witnesses themselves being introduced.

Neither is appellant’s contention that Ed Short, the half-brother of A. B. Short, the assaulted party, could not show that he had a letter from his father, who was also the father of A. B. Short, and who was a resident of Kentucky, that said A. B. Short was dead, on the ground that it was hearsay, irrelevant, and immaterial. Such hearsay evidence is admissible to,prove death when between members of the same family and thereby establish death, it being shown by this witness that he had continuously for years lived in Texas, and that his said half-brother A. B. Short resided with his father in Kentucky, where the death occurred. 1 Whart. Orim. Ev. §§ 236, 237; Id. § 225, bottom of page 453, and note 24 on that page; Mason v. Fuller, 45 Vt. 29.

By another bill appellant objected to this specific portion of the reproduced testimony of said Lewis: “On the night the assault happened, Jno. Luidders was there in the hall, and he asked me who did it, and I hesitated, and Mr. Hughes, sheriff, told me to tell it, and I did, and told him how it happened, and Mr. Hughes asked which way Luther went, and I told him.” The bill attempting to raise the question is very meager, does not comply with the rules of the court, in that it does- not of and within itself make a sufficient statement of the facts to show to this court whether or not error was committed in admitting this testimony. The objections to it were that it was hearsay, the declaration of a third party, not in his presence, and that by it it was sought to bind appellant by the opinion of his father as to his presence, and was irrelevant, immaterial, and highly prejudicial to him. This matter, as now presented, is wholly different from what occurred and was shown on the previous appeal of this case on this same subject. A reading of the decision on the former appeal will show that what was objected to then was the examination of this witness Lewis on the stand in the trial of that case. The questions, answers, objections, and statements by the court are all shown' therein and substantially recited in the opinion, but the matter is- presented altogether differently in this trial. The state on this trial did not attempt to reproduce the testimony of the witness on the former trial in the district court, nor what then occurred, but, instead, reproduced and introduced his written testimony taken down on the examining trial, the whole of which is shown by one of appellant’s bills on this appeal. As the matter is. presented in this bill it shows no error. If we could look to the other, bill and the record, it would show that this witness in giving his testimony on the examining trial identified appellant as the party who committed the assault, and that this testimony objected to was for the purpose of refreshing the recollection and previous statement by the witness of his identification of appellant as the party who committed the assault, and, not as contended for by appellant, indirectly thereby getting the opinion of his father that it was the father’s opinion that it was appellant who committed the assault, and not his brother Lucien. So that as to this bill, we say: First, that the way the matter is presented by it, it is not shown thereby that the testimony was inadmissible; second, that, if we could look to the whole record and the other bill, it would show that the testimony was admissible, not as seeking and getting the father’s opinion that it was appellant and not his brother who had committed the assault, but refreshing the witness in his testimony that he, the witness, identified appellant as the party who committed the assault.

Appellant contends by another bill in his objections only that it was not shown that A. B. Short, the assaulted party, was dead, nor was it shown that he was a nonresident of the state, as a preliminary question to the reproduction and introduction in evidence of the testimony of said Short given on a previous trial of this case. The bill shows that these were objections and not statements of facts as approved by the court. The facts are that it was both shown clearly and sufficiently that the assaulted party,' A. B. Short, had been a resident of Kentucky; that he was only in Texas a few weeks at the time of the assault, and that, after he sufficiently recovered, he went back to Kentucky, the state of his residence, remained there until the former trial of this case and then came, at the instance of the state, and testified therein; that soon after that trial he returned to and remained a resident of Kentucky until he died not a great while before the trial of the case at this time. Therefore the testimony was admissible, and was fully reproduced by the stenographer, who took it down on the previous trial of this cause.

The only other bill is one claiming that the court erred in permitting in evidence the letter of said witness Lewis to the district attorney in answer to a letter to said witness from the district attorney, addressed to the witness at his residence in Los Angeles, Cal., wherein the said witness stated that he could not, and the reasons why, go from his then home in California to Amarillo to testify as a witness. The admission of this letter could in no way have affected the result of the trial. It was clearly and conclusively shown that this witness, after the other trial of this cause, had removed from Amarillo to Los Angeles, Cal., as his permanent place of residence, and that he had continuously remained there and claimed California as his residence, and was seen and identified by witnesses in Los An-geles, who testified on this trial, shortly before this trial. The letter, even if inadmissible, could not result in any injury to appellant.

There being no reversible error shown, the judgment is affirmed.  