
    LEGGETT v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1911.
    On Motion for Rehearing, April 19, 1911.)
    1. Criminal Law (§ 1104) — Appeal — Statement of Facts — Felony Case.
    The evidence in a felony case being required by the statute to be sent up separately from the transcript, the facts being copied into and sent up in the transcript cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1104.]
    2. Criminal Law (§ 1120) — Appeal—Bill op Exceptions.
    The matter of the exclusion of offered testimony is not sufficiently presented for review; the object and purpose of the testimony not being stated in the bill of exceptions.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    3. Crimina! Law (§ 1120) — Appeal—Bill or Exceptions.
    A bill of exceptions to the admission of evidence on cross-examination, which may have been legitimate for certain purposes, is unavailing, when so indefinite that it cannot be said therefrom whether admission of the evidence was erroneous, and how it was injurious.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2031-2937; Dec. Dig. § 1120.]
    4. Criminal Law (§ 1170%) —Appeal — Harmless Error.
    Asking defendant’s witness, on cross-examination, if prosecutions were not pending against him at a certain place, and if in leaving there he did not forfeit his bond, the question being answered in the negative, and the matter being left there, was not prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    5. Criminal Law (§ 711)— Trial — Argument oe Counsel.
    Where, after closing of the evidence, counsel for both sides, being asked by the court as to the amount of time desired for argument, announced that each side would take a certain time, there was no error in allowing the district attorney, after the county attorney had made the opening argument, to use the remainder of the state’s time in argument, though the defendant’s counsel, at the close of the opening argument, announced that he did not wish to make an argument.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 711.]
    On Motion for Rehearing.
    6. Criminal Law (§ 1133) — Appeal—Statement oe Facts.
    The case may, on rehearing, be considered with the statement of facts, the original, filed in time, having, since the first hearing, been sent up separately, as required by the statute in a felony case, though at the former hearing the statement of facts as copied in the transcript was stricken out because of noncompliance with such statute.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1133.]
    7. Assault and Battery (§ 96) — Aggravated Assault — Prior Beating of Depend-ant by Prosecutor.
    Where the case was submitted on the issues of assault to murder and aggravated assault, the court should, especially in connection with a charge on cooling time, have instructed as to blows inflicted by prosecutor on defendant, with a chair bottom and rail, causing pain and bloodshed, authorizing a conviction of. the lesser offense, though such blows were inflicted an hour before the parties again met, when defendant shot prosecutor.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142^-150; Dec. Dig. § 96.]
    8. Assault and Battery (§ 96) — Cooling Time.
    On the issue of aggravated assault, the jury should 'be instructed on cooling time, in connection with the beating inflicted by prosecutor on defendant, though - this was an hour before they met again, when defendant shot him; defendant having been beaten by prosecutor with a chair bottom and rail, and severely kicked in the side by him, and having bled freely therefrom at the time of the shooting.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    Appeal from District Court, Rains County; R. L. Porter, Judge.
    Lon Leggett was convicted of assault to murder, and appeals.
    Reversed and remanded.
    B. M. McMahan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      Foz other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This conviction was for assault to murder; the punishment being assessed at two years confinement in the penitentiary.

The facts are copied into and sent up in the transcript, and cannot therefore be considered. On motion of the Assistant Attorney General, the facts are stricken from the record, inasmuch as the statutes require that in felony cases the evidence shall be sent up separately from the transcript.

Appellant’s first bill of exception recites that the appellant asked Hawkins if it was not a fact that he had had a great many difficulties with various parties in the neighborhood over gaming and other matters, and if he had not threatened to kill Henry Ivie, and if he had not made the threat that the next time he had any trouble with one of those negroes he would not fight with his fist, but would take his gun to them, or would use it on them, and was then asked if he had not drawn a brickbat on Robert Gilmour and threatened to brain him, and if he did not strike John Hays over the head with a rail, all just prior to the alleged shooting. The state objected, because the matters were irrelevant and immaterial, and the witness would have answered, if permitted to do so, each of said questions in the affirmative. The purpose and object of this testimony is not stated in the bill of exceptions. Where testimony is offered by the appellant and is excluded by the court, the object and purpose of seeking such evidence must be shown by the bill, and usually such purpose must be stated. For the reason that the bill does not state the object and purpose of seeking to introduce this evidence, it is held that it does not sufficiently present the matter for revision.

2. Another bill shows that, while McNeil was testifying, the district attorney, on cross-examination, asked him if “he was not shooting craps there that night, meaning the place where the game was shown to have been played.” The witn'ess denied playing. The district attorney was then permitted to prove by the appellant that he had been prosecuted and arrested and was under bond for shooting craps that night. Appellant objected, because this was immaterial, incompetent, and improper, and because the credibility of the witness could not be attacked in such manner. This 'bill is rather indefinite, and fails to show how this could have been injurious to appellant. It may have been that this character of testimony was legitimate in developing the matters incidental to and surrounding the trouble that night, if it is intended by this bill to state that the assault by appellant upon Hawkins was made on that occasion. It may have been legitimate, further, for the purpose of impeaching or contradicting this witness; but the trouble is the bill is so indefinite that we are unable to tell whether, from the. face of it, there was error in admitting the testimony. The court qualified the bill by stating that Hawkins had testified that this witness was in the crap game, and the witness denied it. The district attorney then asked the witness if he had not been arrested, charged with gaming on that particular occasion, and if he was not denying the fact that he played, in order to keep from paying a fine. The court admitted this evidence, as he states, for the purpose of showing the witness’ motive for thus testifying. As the bill presents the matter, we fail to see that there was sufficient error to require a reversal.

3. There is another bill of exceptions in regard to the testimony of the witness Shaw practically like the preceding bill, and qualified in the same manner by the judge.

4. There is another bill which recites that Shaw, on cross-examination by the district attorney, was asked if it'was not a fact that he had been prosecuted and had cases against him at Sulphur Springs, and if, when he left that place, he was not under bond, and the bond forfeited. Objection was urged that this was irrelevant, immaterial, incompetent, and prejudicial, and because the credibility of the witness could not be in this manner attacked. These objections being overruled, the witness denied leaving Sul-phur Springs on account of any charges. He also denied that he was under bond, but admitted that he went away for about a year. The answer of this witness could in no way, as far as we can see, be injurious to appellant. The matters were left as testified by the witness, so far as the bill shows; his denial that he left Sulphur Springs on account of these matters was not attacked by the state, or sought to be attacked. The answers, we think, were in no way damaging. It may have constituted a predicate for the impeachment, but there the matter rested.

5. Another bill recites that Humphrey, the county attorney, made the opening argument for the state. At this point counsel for appellant informed the court he did not wish to make an argument. Whereupon the district attorney demanded and was accorded the right to make an argument for the state. Appellant objected, and it is recited that the district attorney did make a lengthy and able argument. The court approved this bill by stating that when the evidence was closed he asked the attorneys for both sides how much time was desired for discussing the case. After consulting among themselves, it was announced to the court that they would take an hour and 15 minutes. The county attorney, Humphrey, opened for the state. Appellant’s counsel stated they did not desire to argue the case. The district attorney then proceeded to make an argument, consuming the time allowed the state. In this there was no error. This direct question was decided adversely to appellant in Vines v. State, 31 Tex. Cr. R. 31, 19 S. W. 545.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term the judgment herein was affirmed without reference to the statement of facts, which was stricken out, on the ground that it was not properly before the court. The statement of facts was stricken out, because it was transcribed in the record proper, and was not sent up separately from the transcript; that is, the original statement of facts was not sent up. Appellant moves for a rehearing, and shows to the court that the clerk omitted to send up the original statement of facts, but transcribed it in the record that was sent up without his knowledge. As the matter is now presented on the motion for rehearing, the original statement of facts is sent up, showing that the evidence sent up in the transcript is a correct copy. It is also shown that the statement of facts was filed within 20 days from the adjournment of court, and that there was an order entered for that purpose. It is not clear whether this is a stenographic report of the evidence or not; but the statement of facts was filed within 20 days, and under any view of the law such filing was within time. Whether it should have been transcribed in the transcript, or sent up separately with the transcript, so far as this case is concerned, is wholly immaterial, for the reason that under any view of the law the statement of facts was filed in time, and we have the statement of facts before us, both the original and the copy in the transcript. We are of opinion, therefore, that the case should now be considered with the statement of facts before the court.

We do not care to review the bills of exceptions and matters considered in the original opinion. There is, one matter, however, which we think entitles appellant, to a reversal of the judgment.

Briefly stated, the facts show that on the night of the difficulty, between appellant and the man he is charged with shooting, Ike Hawkins, there had been a social function among the negroes in the neighborhood which lasted until about midnight. Appellant, Hawkins, and several other named parties went from the party to where Pearl Randolph’s house had been burned. Two of the parties went in their wagon for the purpose of hauling some hogs away that were supposed to be in a pen. They were to take the hogs the following morning. Nearby was a lake. Upon reaching the house, the two parties controlling the wagon took their horses out and fed them. A crap game was inaugurated promptly. Ike Hawkins, the assaulted party, testifying for the state, placed several of the parties in the game. All the other witnesses state there were only three engaged in the game; Hawkins and appellant being two of them. After playing a short time, trouble ensued between Hawkins and appellant with reference to a bet; appellant claiming to have won the money. Hawkins denied it and took the money. In a few moments another trouble arose between the same parties in reference to another bet; appellant remarking: “By God, I am a son of a bitch, if I didn’t win the money.” Hawkins suggested to him to go to the graveyard and dig up the dead body of his mother. Appellant told him not to speak of his dead mother, whereupon Hawkins engaged him in a personal combat, as the witnesses say, slammed him down against the ground and was beating him over the head with a chair bottom, when they interfered and pulled him off of appellant. Some of the evidence is to the effect that Hawkins kicked appellant in the side. When they were separated, Hawkins went to the hogpen nearby and got him a piece of rail about five feet long, and appellant ran. Hawkins chased him about 75 or SO yards, and as appellant was getting through the fence Hawkins struck him twice with the rail. These blows inflicted pain upon appellant. One of the blows on the head cut a gash from which the blood flowed, and the sheriff testified that appellant surrendered to him shortly afterwards, on the same night, and the next morning he noticed the bruise or cut on the head and the hurt in the side.

Hawkins left the scene of the trouble, stating that he would get his gun and come back and kill appellant. Hawkins was gone for some time, about 60 minutes, and returned with his gun. In the meantime appellant secured a gun. In this connection it may be stated that when appellant ran away he left his hat, which he had lost in the difficulty. He explained his return to the scene of the trouble by the fact that he wanted his hat This was found and given him, and about this time Hawkins came upon the scene, armed with a shotgun, and was standing off some 40 or 50 steps. They all agreed that Hawkins called for one of the negroes by the name of Ennis MeNeal. Hawkins says about that time appellant shot him twice from behind, and that after he fell he shot him in the eyes. All of the other witnesses testify that when Hawkins came appellant was standing talking to them, with the end of his gun on the ground, and one or two witnesses state that it was the butt end of the gun on the ground. That when Hawkins called MeNeal he raised his gun to his waist, and appellant fired twice, and that there were only two shots fired. The facts seem to be undisputed that the gun was loaded with small sho.t, as indicated by the wounds on Hawkins. Hawkins dropped the gun when he was shot, and it was found there the next morning by the sheriff, with the right barrel cocked. The case was submitted to the jury upon the law of assault to murder, aggravated assault, and self-defense. The jury convicted of assault to murder, and gave appellant two years confinement in the penitentiary.

The court, submitting the law of manslaughter with a view of submitting the further issue of aggravated assault, charged the jury in a general way that any circumstances which would render the mind incapable of cool reflection would form the basis of aggravated assault. Two exceptions are reserved to the charge in this connection: First, inasmuch as the statute authorizes a conviction of manslaughter, or failing in the homicide, of aggravated assault, with reference to blows inflicted, causing pain or bloodshed, the charge was erroneous in not submitting it from this standpoint. While the shooting did not occur immediately in connection with the first fight, in which appellant was struck on the head with a chair bottom and rail, we are of opinion the court should have instructed' the jury in reference to this matter, and especially should this have been done in connection with a charge on cooling time.

This brings up the second criticism of the court’s charge, in that the issue of cooling time was not submitted in any form. We think this is clearly erroneous. The evidence discloses that appellant had been beaten by Hawkins with a chair bottom and with a rail and kicked severely in the side, and he was bleeding freely at the time of the shooting. This had occurred 30 or 60 minutes before the shooting. Unquestionably this beating would have formed the predicate for manslaughter, had the shooting occurred at the time. We are of opinion that a charge should have been given on cooling time in connection with this beating, which the evidence uncontradictorily shows caused both pain and bloodshed, and, failing to give this charge under the circumstances of this ease, the error requires a reversal of the judgment. Ross v. State, 53 Tex. Cr. R. 277, 109 S. W. 194, and authorities cited.

The motion for rehearing is therefore granted, the affirmance set aside, and the judgment is now reversed, and the cause remanded.  