
    BATCHAN v. STATE.
    (No. 9963.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.
    State’s Rehearing Denied May 19, 1926.)
    1. Criminal law <&wkey;l092(12).
    Where accused refuses to accept bill of exceptions as qualified, court must file Ms own bill, and, if this be not acceptable, accused may file bystander’s bill.
    2. Criminal law <&wkey;622(2) — Refusal of request for severance by one accused of murder asking that coindictee be first tried held error, though testimony expected from coindictee was not set up.
    Refusal of request for severance by one accused of murder asking that another indicted-for complicity in same transaction be first tried held error, though affidavit did' not set up testimony expected from eoindietee, if acquitted.
    3. Homicide <&wkey;122 — 'Where accused was riding with another in truck, his right of self-defense held to obtain as fully against attack on companion as if he himself had been at-taoked.
    Where accused was riding with another in truck, his right of self-defense 'held to obtain as fully against attack on companion as if he himself had been attacked.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>l 111 (5) — Where record: indicates that motion for severance may have been filed on either of two dates, appellate court will determine which is more probable.
    Where record by inconsistent statements indicates that motion for severance may have been filed on either of two dates, Oourt of Criminal Appeals will determine which is more probable, and proceed on assumption that it is correct.
    Appeal from District Court, Orange County; V. H. Stark, Judge.
    Herbert Batchan was convicted of murder, and he appeals.
    Reversed and remanded.
    McCall & Crawford, of'Conroe, for appellant.
    Hollis M. Kinard, Co. Atty, of Orange, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMOIRB, # J.

Conviction in district # court of Orange *county of murder; punishment fixed at death. This is a companion case to Frank Wilkes v. State, No. 9863, 280 S.W. 787, opinion handed down February 17, 1926. The facts are substantially the same as those appearing in the record in that case, and are fully stated in our opinion therein. The state has in this casé an additional witness, a Mrs. Dean, who was not used in the Wilkes Case. Her testimony is contradictory in some respects of that both for the state and the defense, but it is not necessary to discuss it in our view of the proper dispositioh of this appeal.

Appellant asked a severance, setting up that Ben Wilkes was indicted for complicity in the same transaction, and, in the usual form, asking that said Wilkes be first tried. The learned trial judge appended a qualification to the bill of exceptions complaining of the overruling of this request for severance. To this qualification appellant objected and excepted. Thereupon the trial court set down a day for a hearing of the matters thus in controversy and notified appellant’s counsel to appear -at said hearing. For reasons deemed sufficient, appellant’s counsel did not appear, alleging their inability so to do. The hearing was not had, but in its place the court below made, what is denominatéd a statement, which appears in the record. The statutes and decisions of this state make plain the proper practice in case there is objection to a qualification placed or offered to be placed on any bill of exceptions; but no provision is made for the formation of any fact issue in the trial court, or the introduction there of testimony to determine which is correct, i. e., the qualification or the objection thereto. If the accused refuse to accept a bill of exceptions as qualified, the court must file his own bill, and, if this be not acceptable, the accused may file a bystander’s bill. We do not understand that in an affidavit for severance the testimony expected from the eoindietee, if acquitted, must be set up; nor are we able to satisfy ourselves that no error was committed in the court overruling the request for severance. Forcey v. State, 29 Tex. App. 408, 16 S. W. 261; King v. State, 35 Tex. Cr. R. 472, 34 S. W. 282.

As we view this record, there appears slight evidence supporting the proposition that appellant intentionally fired any gun. Mrs. Watson, a disinterested witness, was looking at the transaction and gives practically the only testimony, aside from,that of appellant, as to the actual beginning of the trouble. She said she saw a truck stop and a man jump on the running board of same and begin to tussle with another man like they were trying to get hold of a gun that was sitting between the people in the truck, and that in an instant said gun went oft straight up in the air, just at which time another man appeared on the side of the street next her; that when the gun went off in the air some one shot this man who'had just appeared. From other testimony it is clear that the man in the truck who “tussled with” the man trying to take from him the gun, was appellant. It- appears also that the man who shot was Wilkes. No conversation, acts, or conduct of Wilkes and appellant appear in the record indicating any agreement or collusion on their part to make an attack upon the white men. Indication's are the other way. The Wilkes and Prejean were rival meat sellers in the town of Orange; each apparently using a truck in the delivery of meat. The Prejean truck, for some undisclosed reason, was parked on the wrong side of the street as the negroes Wilkes and appellant came down the street in their truck. As the truck containing the negroes approached the point where the Prejean truck was parked, Morris and Prejean seem to have advanced from their truck toward the negroes. Fifteen or 20 minutes before this killing Morris had gone in a blacksmith shop and gotten from said place a part of a hickory buggy shaft, and, according to the state’s own witnesses, this piece of wood, which one witness described as resembling a small baseball bat or wagon spoke,. was lying by the hand of Morris after the shooting was over. There is strong suggestion that the difficulty was begun by the white men. The killing was at the truck of the .negroes.

In view of our disposition of the case, it is suggested that the charge of the court upon another trial should submit fully the issues of self-defense, not only of the person of appellant, but also of Wilkes. There is no testimony of threats or ill will or motive for the killing on the part of appellant, and it is only suggested that there might be animosity between the deceased and the Wilkes growing out of their competition in the meat business. If Prejean and Morris made an attack directed against Wilkes or appellant or both, appellant’s right of self-defense would obtain as fully against an attack upon Wilkes, his companion, as if'the attack was directed at appellant.

Believing the learned.trial judge fell into error in the matter of the refusal of the application for severance, and that it was vital, the judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

The state moves for a rehearing, asserting that tiie motion for severance, which we held should have been granted, was filed after the trial term of the court below ended, and that said motipn for severance was not presented in the trial court during term time, nor considered. Examination of the record shows that, for some reason unknown to this court, the motion for severance which appears in the record bears date and file mark as of March 21, 1925. The trial in the court below began on February 21, 1925. The trial term ended on March 6th of said year.

We note, however, that in appellant’s motion for new trial filed on March 6, 1925, he complains of the overruling of his motion for severance. We also note that in his bill of exceptions No. 1 he complains of the refusal of the court to grant a severance; a copy of his application therefor being set out in said bill of exceptions and showing to have been presented on February 21, 1925. Also in resistance to the state’s motion for rehearing herein appellant presents duly certified copies of minute entries of the court below showing the docket orders at the tidal term of the court, from which it appears that on February 21, 1925, the court made the following order:

“2 — 21—25. * * * Defendant’s motion for severance overruled, and defendant excepts, and said cause proceeded to trial.”

It is to be deeply regretted that records in causes involving the lives and liberties of citizens should not come to appellate courts exactly portraying the proceedings in the court below. There seems no excuse for such failure in this record. When there is, we have to do the best we can to get at the truth of the record. We feel sure from the facts before us'that the motion for severance was before the trial court, and .was refused on the day this trial began.

The motion for rehearing is overruled.  