
    HARRIS v. STATE.
    (No. 10365.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Denied April 27, 1927.
    1. Criminal law <@=»(086(f4), 1090((4) — Complaint of refusal of special charge will not be reviewed, unless preserved by exception noted by judge or included in separate bill.
    Complaint of refusal of special charge in criminal case will not be reviewed, unless preserved by exception either by notation over judge’s- signature showing exception or by separate bill.
    2. Criminal law <S=»1172(1) — Instruction that defendant was guilty of aggravated assault, if he committed aggravated assault by inflicting serious bodily injury, if error, held not prejudicial, in view of victim’s wounds (Pen. Code 1925, art. 1147, subd. 7).
    Instruction, after definition of aggravated assault under Pen. Code 1925, art. 1147, subd. 7, that defendant was guilty of aggravated assault if he committed aggravated assault by inflicting serious bodily injury, if error, held not-prejudicial, where defendant had cut victim several times with knife.
    3. Criminal law <@=»l 172(f) — Error In instructions in criminal case, which is not prejudicial, is not reversible.
    Judgment, in criminal case will not be reversed for instructions given or refused, unless error is shown which was calculated to injure rights of accused.
    4. Criminal law <@=>871 (() — Furnishing jury with forms of verdict prescribing “months” of imprisonment for aggravated assault and battery held not error, in view of instructions.
    In prosecution for aggravated assault and battery, in which court submitted forms for possible verdicts, use of term “months” instead of “month” in forms providing for imprisonment held not error, in view of instructions.
    5. Criminal law <@=404(1) — In prosecution for aggravated assault and hattery, it was not error to permit victim to exhibit scars left on body to jury.
    In prosecution for aggravated assault and battery, it was not error to permit victim to remove clothing and exhibit to jury scars left on body by wounds inflicted by accused, as against objection that physicians could testify to nature and character of wounds.
    6. Criminal law©=l 120(8) — Error in admitting impeaching evidence of charge by complaint with another felony held not shown, in absence of showing that grand jury intervened and returned no indictment.
    In prosecution for aggravated assault and battery, admission of impeaching evidence that defendant had been charged by complaint within five years with transporting liquor held not error, as showing felony, where grand jury had intervened, and matter was not merged into indictment, in absence of showing that grand jury intervened and returned no indictment.
    7. Criminal law ©=804(7) — After oral instruction not to consider impeaching evidence of m prior felony as circumstance of guilt, refusal ' of written instruction to'same effect held not error.
    In prosecution for aggravated assault and battery, where court instructed jury orally not to consider impeaching evidence showing prior charge for transporting liquor as circumstance of guilt, failure to then give written instruction to same effect held not error.
    On Motion for Rehearing.
    8. Criminal law ©=595(10)— Application for continuance for absence of witness showing proposed testimony to be conclusions rather than facts held properly overruled.
    In prosecution for aggravated assault and battery, application for continuance for absence of witness who would testify as to who was aggressor held properly overruled, where application showed proposed testimony to be conclusions rather than facts.
    9. Assault and battery ©=96(3) — In prosecution for aggravated assault, instruction that accused could defend himself against unlawful attack, using necessary force, held sufficiently comprehensive.
    In prosecution for aggravated assault and battery, instruction that accused had right to defend himself against unlawful attack, and to use all force necessary to repel such attack, held sufficiently comprehensive.
    10. Criminal law <@=>871 (I) — Forms for all verdicts permissible in case should be given, if forms are submitted at all.
    When forms of verdicts are submitted in criminal ease, forms for all verdicts permissible in case should be given.
    11. Criminal law ©=>871 (I) — In prosecution for aggravated assault, failure to furnish jury form of verdict for simple’assault held not error.
    In prosecution for aggravated assault and battery, court held not to err in furnishing jury with forms for possible verdicts, without furnishing one for simple assault, since such offense was not involved, notwithstanding admission of sears on victim’s body to show seriousness of assault.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    Lee Harris was convicted of aggravated assault and battery, and he appeals.
    Affirmed.
    Dlbrell & Snodgrass, of Coleman, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for aggravated assault and battery; the punishment being nine months’ imprisonment in jail.

Appellant sought a continuance on account of the absence of the witness Nichols. It is conceded by the state that proper diligence is shown to secure the attendance of this witness, but insists that, if the witness had been present, he would not have been permitted to-testify to the things set out in the application for continuance, because they are conclusions only and not statements of any fact. We are inclined to believe this criticism of the application is well founded. Nowhere in the application is it averred that Nichols would have testified that he was present and saw the difficulty. It is not stated that witness would have -testified to any fact from which the jury might have drawn conclusions, but only that witness himself proposed to testify to conclusions.

Appellant devotes several pages of his brief to discussion of the refusal of a requested special charge, which was designed to advise the jury of his rights where there was more than one assailant. This charge is only marked “Refused.” There is no notation on it over the judge’s signature showing that any exception was reserved to its refusal, and no separate bill is found bringing the question forward for review. It is essential that complaint of the refusal of a special charge be preserved by exception in one of the ways mentioned. Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491. We regret that this matter cannot be considered.

Appellant was indicted for assault to murder one Reed. The state conceded that the. felony charge could not be sustained, and aggravated assault only was submitted. The court defined assault, and informed the jury that it would become aggravated 'when serious bodily injury was inflicted. Section 7, art. 1147, P. C. 1925. In applying the law the court told the jury, in substance, that, if they found from the evidence that appellant committed an aggravated assault upon Reed by inflicting upon him serious bodily injury, appellant would be guilty of an aggravated assault. Objection was urged to the form of the charge. Under the facts, we think appellant could not have sustained injury’thereby. That appellant cut Reed several times with a knife seems to have been a conceded fact, and there was no issue raised but that one stab went into the lungs and was quite serious. We are forbidden to reverse a judgment upon instructions given or refused, unless an error is shown which was “calculated to injure the rights of defendant.” What we have just said applies also to the criticism of the charge on self-defense. Taking the instruction upon that subject in its entirety, we think the objections are not meritorious, and that the jury could not possibly have been misled thereby to appellant’s hurt.

The court furnished the jury with four forms of verdict, one providing for finding appellant not guilty, the other three providing for finding him guilty of aggravated assault and battery, and for assessing the punishment by fine only, or by fine and “imprisonment in jail - months,” or for only “imprisonment in jail- months.” Objection was made because no form was furnished for a verdict of simple assault. This issue was not submitted; hence no necessity for a form of verdict as to that offense. Another objection was that, the court having used the term “months” in the forms providing for imprisonment, it was calculated to impress the jury that it was the opinion of the court that appellant’s punishment should be assessed at more than one month. Our opinions are not in harmony upon the propriety of furnishing forms of verdict. Some hold it to be a commendable practice. Williams v. State, 24 Tex. App. 637, 7 S. W. 333; Oates v. State, 51 Tex. Cr. R. 449, 103 S. W. 859; Crook v. State, 27 Tex. App. 198, 11 S. W. 444. Other opinions discourage the practice. See Smith v. State, 103 Tex. Cr. R. 103, 280 S. W. 200; Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823. But all are agreed that, if forms are provided, the court should include a form for every verdict which might be returned under the evidence and instructions of the court so as to avoid conveying to the jury any impression as to the judge’s opinion as to what particular verdict should be rendered. Branch’s Ann. Tex. P. O. § 657. Unless the forms provided in the present case violate the latter principle, the action of the court should not be held to call for a reversal. The charge advised the jury that the punishment for aggravated assault and battery might be either a fine alone or imprisonment in jail not less than one month nor more than two years, or by both such fine and imprisonment. In view of this instruction, it seems rather far-fetched to conclude that, because the court used the term “months” in the form of verdict, the jury was impressed that the court thought the verdict should be imprisonment for more than one month. The form of verdict furnished could scarcely have been instrumental in leading the jury to hit on nine months as the punishment rather than two, four, or seven. We think the objection is more theoretical than practical.

Reed was permitted .over objection to remove his clothing and exhibit to the jury scars left on his body by the wounds inflicted by appellant. These scars were several in number; being of an ugly and discolored appearance. The objection urged was that physicians present could testify to the nature and character of the wounds, and that their exhibition to the jury tended to solve no issue in the case. This objection cannot be sustained. The state was seeking conviction of aggravated assault, based on the claim that the wounds inflicted were of a serious nature. Appellant by his plea of “not guilty” had put the state upon proof of every material fact necessary to convict. One of these facts was the nature of the wounds. The state could establish this fact by any legitimate evidence at hand, and appellant could not dictate that the state proceed in any particular manner to make out its case. The wounds exhibited enabled the jury to pass upon the question as to whether serious bodi.ly injury had been inflicted. The fact that physicians could testify, and did later testify, that Reed was confined in the hospital ten days, and that the wounds were of a serious nature, would not render inadmissible their exhibition before the jury. We are referred by appellant to the cases of Newman v. State, 85 Tex. Cr. R. 556, 213 S. W. 651, and also to Mahaney’s Case, 95 Tex. Cr. R. 443, 254 S. W. 946, which quotes from the opinion in Newman’s Case, where it was held that wounds upon a witness should not have been exhibited to the jury. Attention is called to the fact that Newman was convicted of manslaughter. The witness Pruett, who was permitted to exhibit wounds upon his person, was a participant in the difficulty which resulted in the death of the party killed by Newman. The holding in that case was unquestionably correct, in that the exhibition of wounds upon tlie witness solved jio issue in the ease where accused was being tried for the killing of another party. The Ma-haney opinion takes no note of the particular facts of the Newman Case upon the point under discussion, and the quotation from the latter case is upon the general proposition relative to the exhibition of wounds. We ■call attention to the peculiar facts in the Newman Case to avoid confusion in the application of the law to facts which may be ■entirely different. See, also, Graves v. State, 58 Tex. Cr. R. 42, 124 S. W. 676; Chapman v. State, 66 Tex. Cr. R. 489, 147 S. W. 580. The principle involved in the present ease is very similar to that before the court in Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782, where the introduction of a coat worn by •deceased was introduced in evidence.

Appellant became a witness, and, while being cross-examined, he was asked by the district attorney if he had not within the last five years been charged with “bootlegging.” Appellant’s attorney objected, to the ■question, insisting that the district attorney make it clear whether he meant a charge by complaint or indictment. . The district attorney declined to formulate his question to' conform to the objection. Further inquiry elicited the information that within five years appellant had been charged by complaint with transporting intoxicating liquor, and had been arrested and placed in jail on •said charge, but said he had never been, tried therefor. The inquiry seems to have rested at this point. The objections urged are most general, being that the questions were improper, immaterial, prejudicial, confusing, *nd misleading. It is well settled that ■charges by complaint of other felonies cannot be proven for the purpose of impeachment, where a grahd jury has intervened, ■and the matter charged by complaint has not been merged into an indictment. Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036; King v. State, 67 Tex. Cr. R. 63, 148 S. W. 325; Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 362; Redding v. State, 95 Tex. Cr. R. 641, 255 S. W. 430. If this was the objection sought to be urged, the bill relating this occurrence is incomplete. It faiisto show that a grand jury had intervened and had returned no indictment. No objection of this kind was made. We are left entirely in the dark as to where or when the complaint referred to was filed. Under the well-fixed rule that a bill of exception must on its face reveal error, we must hold that such is not shown by the one now being considered.

After the evidence came in showing that appellant had been charged by„ complaint with transporting intoxicating liquor, the court immediately told the jury orally that it could not be considered as any circumstance of appellant’s guilt in the case on trial, but that, if considered at all, it could only be used by them in passing upon the credibility of appellant as a witness. Fry v. State, 86 Tex. Cr. R. 73, 215 S. W. 560; Fields v. State, 95 Tex. Cr. R. 20, 252 S. W. 759; Terry v. State, 101 Tex. Cr. R. 267, 275 S. W. 837. We find a bill which, if correctly interpreted, shows that appellant at the time did not object to the oral limitation by the court, but asked that a written instruction to the same effect be then given. This request seems to have been made orally. At least there is nothing showing to the contrary. The court was not required to stop at that point in the trial to give a written instruction in addition to what he had told the jury. No written objection was later urged to the omission from the charge of a written instruction on the point, and no special charge seems to have been requested regarding the matter.

We have discussed all questions brought forward for review, except a matter raised by bill of exception No. 4 relating to placing witnesses under the rule. This point is not briefed. However, we have examined the bill, and think it presents nq error.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Taking issue with what we said in our opinion, appellant asserts in his motion for rehearing that his application for continuance described what he expected absent witness Nichols to testify as facts and not conclusions. This matter seems to solve itself by quotation of what the application sets forth as the expected testimony of said witness. Suppose witness present and on the stand, and asked: “Did Reed without provocation assault this defendant?” Also: “Was Reed the aggressor in the transaction out of which this indictment arose?” Or this: “Was the defendant in said transaction acting solely to protect himself?” Or the following: “Was he acting solely to protect his life and his body from serious bodily harm?” Or this: “Was this defendant not at any time the aggressor?” Or. either of the following: “Did Reed brii^g on the difficulty?” “Did Reed provoke the difficulty?” “Did Reed assault defendant in a violent manner?” “Was defendant in said transaction entirely on the defensive?” We have presented in these quotations all of the supposed “facts” stated in the application as expected to be proved by the absent witness, save and except the single fact that Reed “cursed and abused this defendant.” Inspection of each of the quoted statements, save the last one, discloses that same does not call for an answer which is a fact, but an answer which is merely a conclusion. We have no means of knowing whether the language quoted in the motion referred to in Baker v. State, 103 Tex. Cr. R. 219, 280 S. W. 781, was the language of the application for continuance in that case or the language of this court in referring to said application. Nothing in the opinion therein indicates that we intended to quote from the application. We are unable to agree with appellant in this regard.

We are still of opinion under the facts that a charge telling the jury that appellant had the right to defend himself against an unlawful attack, and to use all force necessary to repel such attack, viewing same from his standpoint and his alone, was sufficiently comprehensive.

Appellant argues at length that, in furnishing to the jury forms for possible verdicts, and failing to furnish one for simple assault, the learned trial judge fell into error. He contends that the issue of simple assault was involved, and that the bill of exceptions reserved to the admission in evidence of the scars resulting from the wounds inflicted upon the injured party was approved with the statement that said evidence was admitted for the purpose of showing the seriousness of the assault, and that this establishes the fact that the issue of simple assault was in the case, arguing that, unless the evidence as to the scars aided in solving the question as to whether the wounds inflicted amounted to serious bodily injury or not, same served no useful purpose, and was inadmissible, and, that being admitted for the purpose of aiding in solving the issue of the seriousness of the wounds, made certain the fact that that issue was in the case, and hence the court should have submitted the law of simple assault. We have always held that, when forms of verdicts are submitted, forms for all verdicts permissible in the case should be given. Stuckey v. State, 7 Tex. App. 179; Williams v. State, 24 Tex. App. 637, 7 S. W. 333; Thomas v. State, 55 Tex. Cr. R. 298, 116 S. W. 600. However, we do not follow appellant’s logic in regard to this contention. A butcher knife might be offered in evidence in a given case to show that the weapon used .was a deadly weapon. So with an axe, a sledge hammer, a gun, etc. The o^Cer in evidence of such proof would not necessarily require the court to submit to the jury the issue as to whether the assault was with a weaponless than deadly. The weapon thus introduced might of itself aid in showing that the assault was made with a' deadly weapon, and that there existed no need for submitting the issue of the lesser offense. So we think of the results of the exhibition of the scars in the instant case. As stated by us in the original opinion, there is no serious controversy over the fact that serious bodily injury was inflicted.

Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled. 
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