
    KNIGHT v. STATE.
    (No. 5728.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.
    Rehearing Denied April 21, 1920.)
    1. Jury <@=>72(7) — Deputy sheriff sent out after talesmen need not be sworn if sworn before trial.
    In a prosecution for aggravated assault, that a deputy, sheriff was sent out after tales-men when the list of regular jurors was exhausted without then being sworn presented no error, when the only objection raised was that the officer was not sworn at the time he was sent out; it not appearing that he had not been sworn during the term and anterior to the trial.
    2. Criminal law <@=>918(10,11) — Failure to swear officer sent out after talesmen must be excepted to at time.
    Failure to swear a deputy sheriff sent out after talesmen is an irregularity which must be excepted to at the time, and cannot be presented for the first time in a motion for a new trial.
    3. Criminal law <@=s=>1091 (I i) — Bill of exceptions to exclusion of evidence insufficient where evidence not set out.
    Bill of exceptions on a criminal appeal, urging error .in that the trial court refused to permit certain evidence, was insufficient, where the language offered in evidence was not set out either in substance or in words.
    4. Criminal law <@=>1092(12) — Appellant may prove bill of exceptions as to rejected testimony by bystanders.
    Where the trial court refuses to permit appellant’s counsel to show in his bill of exceptions what certain rejected evidence was, appellant has a right to offer to the court his hill showing such rejected testimony, and upon the court’s refusal thereof to'have the same proved up by bystanders as provided by law.
    5. Assault and battery <&wkey;85 — General reputation of prosecuting witness in aggravated assault case held admissible.
    In a prosecution for aggravated assault, evidence as to prosecuting witness’ reputation is admissible only if it is that of his general reputation.
    6. Assault and battery <&wkey;>85 — Good reputation of prosecuting witness not admissible unless attacked.
    In a prosecution for aggravated assault, evidence of prosecuting witness’ good reputation is not admissible unless such reputation has been attacked.
    7. Criminal law <&wkey;564(4) — Evidence held sufficient to show venue.
    In a prosecution for aggravated assault, evidence by the prosecuting witness that “defendant struck me while we were both engaged in assisting in threshing grain on the Ida Oher-ryhomes farm in Young county, Tex.,” was sufficient to show venue. ^
    8. Assault and battery (&wkey;92 — Evidence held to show serious bodily injury in aggravated assault.
    In a prosecution for aggravated assault, evidence that defendant struck prosecuting witness with a pitchfork making a gash four inches long in his head, laying the bone bare, and rendering prosecuting witness unconscious or semiconscious for 24 hours, the wound being a serious one calculated to produce death, was sufficient to support a finding of guilty of aggravated assault in that serious bodily injury was inflicted.
    Appeal from Young County Court; W. P. Stinson, Judge.
    Carl Knight was convicted of aggravated assault, and he appeals.
    Affirmed.
    Thos. G. Binkley, of Graham, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   I/ATTIMORE, J.

Appellant was convicted in the county court of Young county, of aggravated assault, and his punishment fixed at a fine of $100, and confinement in the county jail for GO days.

The injured party — one J. W. Seddon — was struck on the head by a pitchfork, in the hands of appellant. An examination of the record does not disclose that anything passed between the two men prior to the time they met, and appellant struck without any words or other matter between them. No predicate ■was laid for any claim of Justification for said assault.

A gash some four inches in length was cut to the bone on Seddon’s head, which injury the physician who treated it described as being serious and one calculated to produce death.

Appellant’s first contention is that the list of regular jurors was exhausted, and that a deputy sheriff was sent out after talesmen without then being sworn as required by law. An examination of this bill of exceptions makes it appear that no objection to such action of the officer was made at the time the officer was sent, nor until after conviction, and in the motion for new trial. It appears, also, that the only objection, as raised, was that the officer was not sworn at the time he was sent out after said jurors. This is not a sufficient showing to present error. It is held in many cases that, where the only showing is that the sheriff or deputy was not sworn when sent out, this is not sufficient. If the officers were sworn in the beginning of the term, it would not be necessary to repeat the oath each time talesmen were summoned. To make a sufficient showing, this bill would have to go further, and make it appear that the officers had not been sworn during the term, and anterior to this trial. Habel v. State, 28 Tex. App. 588, 13 S. W. 1001; Deon v. State, 37 Tex. Cr. R. 506, 40 S. W. 266. It is also held that the failure to administer the oath to the officer must appear affirmatively in the record, and that a mere statement to that effect in the bill Of exceptions would not suffice. Samschen v. State, 8 Tex. App. 45. An irregularity of this kind must be excepted to ’at the time, and cannot be presented for the first time in a motion for a new trial.

Appellant, by his fourth bill of exceptions, urges error in that the trial court refused to permit certain evidence. We are unable to say whether error was committed or not, for the reason that the language so offered in evidence is not set out either in substance or in words in said bill. The purpose of said testimony as stated was to show facts which might have gone in extenuation of the offense, and hence in mitigation of the punishment, but, in order for us to pass on the supposed error, it is necessary that in some way the rejected testimony be made known to us; otherwise it would be impossible for us to form an intelligent opinion as to the probable injury in excluding same. It is not sufficient to merely say that the court erred in refusing to admit in evidence from certain witnesses slanderous statements which were communicated to the defendant before the difficulty. This but expresses the opinion of the pleader. The statements, or their substance, must appear before us. It is intimated in the argument of counsel that the trial court would not permit him to show in his bill what the rejected language was. In such case, appellant had his right to offer to the court his bill, showing such rejected testimony, and, upon the court’s refusal thereof, to have same proved up by bystanders, as provided by statute, and thus bring same before us properly.

What we have just said as to the fourth' bill of exceptions also applies to the third, in which an attempt appears to have been made to show error on the part of the court in refusing to allow appellant to testify to slanderous language communicated to him before the difficulty.

Appellant also has a bill, because the court would not allow him to prove the reputation of the prosecuting witness in the community where he lived. It does not appear from the bill whether the proof offered was of good or bad reputation, nor does it appear that it was of the general reputation of said party in the community. Unless it affirmatively appears that the rejected testimony was of the general reputation, it would not be admissible. Likewise, unless it was of the bad reputation, for the witness had not been attached, and in such case evidence of good reputation is not admissible.

Attributing to the action of the trial court correctness, in the absence of a showing of any error in the bill, we are compelled to sustain the court’s refusal to permit the evidence.

A special charge was refused, in which an acquittal was asked on the ground that venue was not proven. Said charge was properly refused. In the testimony of the prosecuting witness appears the following statement:

“The defendant struck me while we were both engaged in assisting in threshing grain on the Ida Cherryhomes farm in Young county, Tex.”

It is urged that the evidence does not sufficiently show the serious nature of the injury. The blows were struck with the metal part of a pitchfork — that part of the metal just below the handle, and where the prongs or tines begin to branch, being the part that struck the head of the injured party — and it is shown that a cut was made in his head four inches in length, and which laid bare the bone. The doctor who treated Mr. Seddon says that the print of the metal was on the skull, and that he regarded the wound as one calculated to produce death; that the injured party was unconscious, or semiconscious, for 24 hours, and remained in a hospital for a week, and was treated by him for three weeks. We are not prepared to say, in the face of this testimony, that the verdict was without support, in finding appellant guilty of aggravated assault, in that he inflicted serious bodily injury.

Finding no reversible error in the record, the judgment will be affirmed. 
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