
    COOLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Criminal Law (§ 936) — New Teiai>-Grounds — Absence oe Witness.
    Where, on a trial for assault with intent to murder, in which defendant relied on self-defense, the evidence was conflicting as to the making of threats against accused by the prosecuting witness, a new trial should have been granted because of the absence, due to illness, of a witness, whose affidavit was attached to the motion therefor, showing that she would have given material evidence on this point, and whose attendance defendant used due diligence to procure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dec. Dig. § 936.]
    2. Homicide (§ 300) — Assault with Intent to Murder — Self-Defense—Instructions.
    On a trial for assault with intent to murder, an instruction that accused was not justified in shooting the prosecuting witness if he was in no real danger of death or serious bodily harm was not correct, as it should have hypothesized the absence of any apparent danger as viewed from accused’s standpoint.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Criminal Law (§ 1098) — Appeal—Statements of Fact — Form.
    Under Act March 31, 1911 (Acts 32d Leg. c. 119) § 14, providing that in felony trials the official shorthand reporter shall keep an accurate record of the proceedings, that, if on appeal the state and defendant cannot agree as to the testimony, so much of the reporter’s transcript shall be inserted in the statement of facts as is necessary to show what the witness testified to, but that it shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, they are necessary to elucidate the fact or question involved, where there is no possibility that the attorneys or the court below could not have agreed on the testimony without the questions and answers, the trial judge’s certificate that they are necessary to elucidate the fact or question involved is not conclusive, and their inclusion is improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. § 1098.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Tip Cooley was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant. C. E. Lane, 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
    
   PRENDBRGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at the lowest prescribed by law.

It is unnecessary to make any extended statement of the case or evidence. The evidence raised, and the court submitted, self-defense, especially under what appellant claimed was the attempted execution of threats by Mr. Pugh the assaulted party. The question of threats was a material one. The state undertook to show, and its testimony with more or less strength does show that said Pugh made no serious threats, or, if so they were conditional, against appellant. On the other hand, appellant introduced testimony showing, or tending to show, serious threats and without any condition to them. Among others of such threats, appellant contended that, about a week before the assault, said Pugh, in the presence and hearing of appellant’s daughter, Mrs. Cleveland, made such threats in an angry manner and violently cursed and abused appellant at the time. This was a controverted issue between the state and appellant. The effect of Pugh’s testimony tended to show that no such violence, abuse, or threats were made by him at the time.

Appellant sought a continuance because of the absence of his daughter to prove said Pugh’s said treats, violence, abuse, etc. Sufficient diligence was shown by appellant to procure the attendance of his said daughter, and her failure to attend was because of her illness and threatened abortion in such a way and to such an extent as to prevent her attendance. The estate did not contest this point, and it was amply shown by appellant. In his motion for new trial, and as a part thereof on this ground, he attached the affidavit of his daughter as to what she would have testified. This is shown to be material, and, under the circumstances of this case, the failure of the court to grant the continuance, or rather to grant a new trial because of his refusal thereof, must result in the reversal of this case. It is needless to recite the facts further about the matter. We think it clear that the action of the court in this matter presents reversible error. Hays v. State, 164 S. W. 841, recently decided.

Another ground of appellant’s motion for new trial is that he claims the testimony is insufficient to sustain the verdict. As the case must be reversed, we neither state nor discuss the testimony, but, after a careful consideration of it, we are clearly of the opinion that it was amply sufficient, and even the preponderance of it is in favor of the state.

Some complaint is made of the court’s charge on self-defense. Taking the charge as a whole, it is sufficient, and appellant’s claimed errors would not authorize a reversal of this case on that ground. However, in one particular the court’s charge is subject to criticism. It is in that paragraph wherein it instructs the jury that the mere fear upon the part of the defendant that the assaulted party might do him serious bodily injury, or would hill him, would not justify the defendant in shooting said assaulted party, “nor would the defendant be justified in shooting the said Pugh, if, at the time he did so, he was then in no real danger of suffering death or serious bodily injury from the said Pugh.” That part of this paragraph of the court’s charge quoted above is not correct, in that it omits therein, at this point or some other following it, to tell the jury if he was then in no real or apparent danger, as vieioed, from defendant’s standpoint. If the evidence on another trial calls for such charge, the court, in order to avoid criticism, should remedy this paragraph.

There is another matter in this case to which we call attention. The statement of facts contains some 90 typewritten pages. It could and should have been prepared within about one-fourth that space. The reason this statement of facts is so long is because the great bulk of it is made up of questions to, and answers of, the witnesses, when there could be'no possible misunderstanding of the witness’ testimony. It is also made up to some extent of the attorneys’ different remarks or objections, and the court’s remarks or statements, all of which should have been omitted. At one time the statement of facts, by our statutes, was authorized to be made up of the complete stenographic report ot the evidence by questions and answers and, in fact, everything that occurred and was said and done by the witnesses, court, and attorneys in the trial of the case. This was so abused, however, and imposed such an enormous unnecessary labor on the judges of the appellate courts, that the Legislature at the next session, years ago, repealed that law, and required, as the statute now does, that such statement of facts shall be made up in a narrative form.

Section 14 of the Act of March 31, 1911, p. 268, now in force, says: “In the trial of all criminal cases in the district court, in which the defendant is charged with a felony, the official shortland reporter shall keep an accurate stenographic record of all the proceedings of such trial in like manner as is provided for in civil cases, and should an appeal be prosecuted' in any judgment of conviction, whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event, so much of the transcript of the official shorthand reporter’s report with reference to such disputed fact or facts shall be inserted in the statement’of 'facts as is necessary to show what the witness testified to in regard to the same, and constitute a part of the statement of facts; * * * provided, that such stenographer’s report when carried into the statement of facts * * * shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in-order to elucidate the fact or question involved.” It will be seen by this and the legislation on the subject that it is not intended that statements of facts, under the law as it. now exists, shall be made up of questions and answers by the witnesses. But as stated by the statute, it is only “whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event, so much of the transcript of the official shorthand reporter’s report with • reference to such disputed facts, or fact shall be inserted.” And, even then, the evidence of the witness on that point “shah be condensed so as not to contain the questions and answers, except where in the opinion of the judge such questions and answers may be necessary in order to elucidate the fact or question involved.” The trial judges in. the courts below should see that the statute in this respect is complied with, instead of, as in this case, practically the greater part of every witness’ testimony is given in question and answer form when there is no possibility that the attorneys or the court below could not have agreed to such witness’ testimony without the question and answers. When such is shown, as in this ease, we will not be bound by the judge’s certification, as in this case: “I certify that, where the questions propounded to, and the answers of, the witnesses appear herein such questions and answers, in my opinion, are necessary to help elucidate the fact or question involved.” If the prosecuting officers in this case had made a motion to strike out the statement of facts because of the violation of the law above quoted, we are inclined to believe that we would have granted it and'struck out the statement of facts and affirmed this case. We give this warning so that appellants and their attorneys in having a statement of facts prepared shall comply with this law; otherwise such statement of facts will be struck out and not considered by this court. Oriner v. State, 159 S. W. 1059, and cases cited therein.

There is nothing else requiring any discussion or decision in this case.

For the error above pointed out, the judgment is reversed, and the cause remanded.  