
    PORTER v. STATE.
    (No. 4238.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Depositions <&wkey;49—Officers Authorized to Take—Notaries.
    Code Cr. Proc. 1911, art. 820, as to taking depositions of witnesses residing in another state, does not authorize a notary public in such other state to take depositions in criminal cases. ,
    [Ed. Note.—Por other cases, see Depositions, Cent. Dig. §§ 72-80; Dec. Dig. <&wkey;>49.]
    2. Criminal Law <&wkey;598(3), 913(3).—Contin-uance—New Trial—Diligence.
    Where accused, instead of sending interrogatories to an officer authorize^ to take depositions, sent them to a notary public in another state, and it did not appear he provided for payment of the officer’s fees for taking depositions, and he did not explain why the depositions were not taken and returned in time for the trial, it was not error to refuse continuance nor to refuse new trial, because of his lack of diligence.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 1336, 2144; Dec. Dig. <&wkey; 598(3), 913(3).]
    3. Criminal Law <&wkey;598(2), 913(3)—Contin-uance—New Trial—Diligence.
    Where accused made only one attempt to subpoena a witness residing in an adjoining county, although it appeared that the witness was home part of the time during the trial, it was not error to refuse accused continuance and to refuse him new trial because of his lack of diligence.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341, 2144; Dec. Dig. &wkey;598(2), 913(3).]
    4. Criminal Law &wkey;>1091(14)—Appeal—Ne-cessity oe Specific Objections.
    To properly present several exceptions to the court’s charge, accused should take a separate bill to the court’s action in each instance where he does not correct or change his charge to meet accused’s objection, and should not embrace all his objections to the charge in one bill.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 2823, 2824; Dec. Dig. <3&wkey; 1091(14).]
    
      6.Oeiminai, Law <&wkey;l 172(8)— Harmless Error — Refusal to Give Instruction — Effect of Verdict.
    The question of correctness of court’s refusal to instruct as to matters pertaining to a charge of assault to murder passes out on ■accused’s acquittal of such offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3161; Dec. Dig. &wkey;1172(8).]
    6. Criminal Law <&wkey;1093 — Appeal—Necessity of Specific Exceptions.
    Accused’s bill to refusal to give instruction requested, stating merely that at the proper time he presented his said charge, and asked that it be given, quoting the charge, and that the court refused to give it, did not authorize ■or require review of such refusal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. &wkey;1093.]
    7. Criminal Law <&wkey;364(2) — Evidence—Res Gestas.
    In trial for aggravated assault upon a constable endeavoring to arrest accused, who was “joy riding” in an automobile, evidence as to acts of accused along the road leading up to .the alleged assault, such as that his party was drunk, drinking, and shooting, along the road at a high rate of speed, and also what accused’s companions shouted to him when he took his Winchester rifle and ran back towards the constable, making him throw up his hands and' marching him back, and the condition of accused’s gun at the time, and that he was attempting to work it so as to shoot the constable, was admissible as part of the whole transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 813, 816; Dec. Dig. &wkey;> 364(2).]
    8. Criminal Law <&wkey;1166:}4 (12)— Appeal — Harmless Error — Comment of Court.
    It appearing that the constable was summoned to arrest accused by a third party who thought accused had committed a robbery, where on objection to such third party’s testimony that when he was hunting for the constable, he met his brother and asked him if he was the constable, the court, passing on the question, said, “I don’t think that the constable at that time would have had to determine whether they were guilty of a felony or a misdemeanor, or which had been committed,” such comment would not authorize reversal, even if improper, since, while made in the hearing of the jury, it was not addressed to the jury, but to counsel debating a question of law.
    [Ed. Note. — For other case, see Criminal Law, Cent. Dig. § 3126; Dec. Dig. &wkey;1166% (12).]
    9. Assault and Battery <&wkey;83 — Evidence.
    It was not error to permit the constable to tell what the third party said when he came to get him to make the arrest.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> 83.]
    10. Criminal Law <&wkey;351(3) — Evidence — Flight.
    Flight, or attempted flight, may be shown as a criminating circumstance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 779, 930, 931; Dec. Dig. &wkey;351(3).]
    11. Criminal Law <&wkey;351(4) — Evidence — Resisting Arrest.
    It is always proper to show that when accused is arrested, or sought to be arrested, for an offense, he resists it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 780; Dec. Dig. <&wkey;351(4).]
    12. Assault and Battery <&wkey;83 — Evidence.
    In trial for aggravated assault on a constable who endeavored to arrest accused, it was proper to permit officers.in another city to tell that they were communicated with by those directed to communicate with them over the telephone by the constable, when accused hdd escaped from the constable, and that such officers acted on the communication and immediately prepared to arrest accused, the evidence showing that they had neither time nor opportunity to procure a warrant, and if they had not acted promptly accused would have escaped.
    [Ed. Note. — -For other cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> 83.]
    13. Assault and Battery &wkey;>83 — Aggravated Assault — Exclusion of Evidence.
    It was not error to refuse to permit the county attorney to testify at accused’s instance that accused had been charged with drunkenness, disturbing the peace, resisting an officer sent to arrest him after he escaped from the constable, etc.; these matters being irrelevant.
    [Ed. Note. — For other .cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> S3.]
    14. Witnesses &wkey;3392(l) — Impeachment.
    It was not error to permit the state,to introduce for impeaching purposes a written statement of a witness which contradicted some of his testimony on the trial; the proper predicate having been laid.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251; Dec. Dig. &wkey;392(l)j
    15. Criminal Law <&wkey;448(3) — Evidence — Opinion Evidence. '
    It was not error to permit the state to elicit from accused’s witness on cross-examination that it looked to him as if when accused was running back with the gun toward the assaulted party he was getting ready to shoot.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1037; Dec. Dig. 448(3).],
    16. Criminal Law <&wkey;1169(5) — Appeal — Harmless Error. •
    Where inadmissible testimony has been admitted, but is thereafter clearly excluded by the court’s charge given at accused’s instance, it is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;>1169(5).]
    Appeal from District Court, Clay'County; Wm. N. Bonner, Judge.
    D. Porter was convicted of aggravated assault, and appeals.
    Affirmed.
    Wantland & Parrish, of Henrietta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for an assault with intent to murder John Firestone, a constable of said county. Upon a trial he was convicted of an aggravated assault. The indictment, by .inclusion, embraced aggravated assault on several phases.

The offense was alleged to have been committed May 26, 1916. He was arrested and placed in jail on that date. The indictment was filed June 1st, and he was the next day served with a copy. He 'did not make bond from the time of the arrest until after his conviction. He was confined in the jail all this time. His trial was set for June 5th, and began that day, and consumed that and the following two days. With proper diligence appellant propounded interrogatories to John Reed, a witness who was a resident of Oklahoma. The district attorney promptly crossed, waived time, and appellant procured a commission on June Sd to the proper officers in Oklahoma to take the depositions. It may he conceded from his allegations that the testimony of Reed was material to him on some points. Our statute (article 820, O. O. P.) prescribes that:

The “depositions of a witness residing out of the state may be taken before the judge _ or chancellor of a Supreme Court of law or equity, or before a commissioner of deeds and depositions for this state, who resides within the state where the deposition is to be taken.”

It does not authorize a notary public in such other st.ate to take depositions, as has been repeatedly held by this court. Lienpo v. State, 28 Tex. Cr. R. 179, 12 S. W. 588; Murrell v. State, 184 S. W. 831, and cases therein cited. His application alleges that they sent the commission and interrogatories to a certain notary public in Oklahoma with instructions to him to have the witness to come before him and give his depositions. It nowhere alleges that he provided for the payment to any officer of his fees for taking the depositions. Nor does he allege or any way show why said depositions were not taken and returned within the time so that they could have been introduced. We know, judicially, that Clay county adjoins Oklahoma, only a short distance from Henrietta, the county seat of Clay county, and all of the testimony shows that this witness, lived but a short distance in Oklahoma from Clay county.

His other witness was Ivan Boyd, who lived in Montague county, in about a mile of Ringgold, just a short distance across the Clay county line. Within proper time he had a subpoena issued for him, as well as for some other witnesses, among them, his father, with whom he lived. His father and other witnesses were subpoenaed, and they appeared and'were present on the morning when the case was called for trial, his father having come from his home to Henrietta that morning. His son Ivan, the witness, had left home and was absent therefrom at the time his father was • subpoenaed, and he was not served. However, the testimony shows that Ivan Boyd returned to his home after a short absence and was there pending this trial, his father at appellant’s instance testifying during the trial that Ivan had returned to his home the night before he was testifying and was there when he got up that morning. It is evident that his father, appellant's witness, went back and forth to his home from Henrietta and stayed at home at night, returning to the court each morning. Appellant did not procure any other subpoena after the one was returned showing that Ivan Boyd had not been served and used no other diligence or means whatever to have Ivan to attend the trial. If appellant had used any reasonable diligence to have said Ivan attend as a witness, he could unquestionably, as this record shows, have secured his attendance.

Under the circumstances of this ease and as shown by the record, appellant used no such diligence to get the testimony of either of his absent witnesses as to entitle him to a continuance. In other words, it shows such a lack of diligence as would entitle him neither to a continuance nor to a new trial because he did not get said witnesses. We have had occasion to fully discuss this question and cite and quote from the authorities in Giles v. State, 66 Tex. Cr. R. 642-644, 148 S. W. 317, and Murrell v. State, supra. So that the court committed no reversible error in refusing his original application for a continuance, nor the renewal thereof, nor in refusing him a new trial on that ground.

Appellant' has a large number of bills of exceptions. It is unnecessary to state or discuss them separately. Several present the same character of question.

He filed a large number of exceptions to the court’s charge. He took one bill, embracing all these matters therein. It is perfectly evident from the record that the court changed his charge in at least several respects and gave some of his special charges to meet some of his objections. The only way to properly present such questions for review by this court under such circumstances is to take a separate bill to the court’s action in the particular instance wherein he does not correct or change his charge to meet the objection and not to embrace the whole thing in one bill.

He requested eight special charges. The court gave two of them just as asked. Three others were to matters pertaining solely to the charge of an assault to murder. As appellant was acquitted of this offense, all such questions pass out, as has uniformly been held. Neither of his others should have been given. However, neither of them is presented in such a way as to authorize or require this court to review them. His bill to each in substance and effect states that in the proper time he presented his said charge and asked that it be given, quoting the charge, and that the court refused to give it, to which he excepted. It has been the uniform holding of this court that in such instances, even in felony cases, and much more so in misdemeanor cases or convictions, such a bill does not present the questions so as to authorize or require this court to review it. Byrd v. State, 69 Tex Cr. R. 35, 151 S. W. 1068, Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878, and a great number of earlier eases cited in these decisions and other eases subsequently decided.

Briefly stated, the evidence shows: That appellant and three companions, he and two of whom at least, lived in Oklahoma, went therefrom to Wichita Palls in an automobile, and stayed there one night and about.half the next day, when they started to return in the same way. Their route was from Wichita Palls through Henrietta, and thence easterly to Oklahoma. That they all were drinking. Appellant and at least one of the others were drunk. They had a Winchester rifle and a pistol with them. Soon after leaving Wichita Palls they ran the automobile at an excessive speed, several witnesses testifying that they ran it part of the way as fast as that make of machine, the Pord, could possibly run — 25 to 35 miles an hour; appellant himself testifying that part of the time they ran it “awful” fast. 'That along the road they shot the gun while they were running. That on one or two occasions they stopped and shot it while they were traveling along the road, and that in the town of Jolley, through which they had to pass, they shot the gun at least twice while they were in this town. That after leaving Jolley, one of the state’s witnesses, who was traveling behind them in his automobile, testified in substance that, as he approached appellant and his companions, he saw appellant and one of the others out on the ground coming back the road, their automobile having stopped, and the other two remaining in it. The witness stopped his automobile also, and while thus stopped,, an utter stranger to him, and it seems to the appellant and his companions too, jumped up on his running board and demanded that the witness should take him on, which he refused. That while this was going on, appellant and his companion came up on him, demanded that he give them their pistol, and upon his failure or refusal to do so they took it away from him. It seems it appeared to this witness that they were forcibly taking a pistol away from this stranger, and he, the witness, did.not know to whom it belonged; it appearing to him that they were forcibly taking it away from this party. It developed on this trial that appellant or some one of his companions in running their automobile had dropped a pistol, and that they stopped their machine and went back to hunt for it, with the result stated. The state’s witness, as stated, did not know this at the time. John Firestone was the constable and lived near the road where these parties were traveling and these transactions occurring. This witness, who had seen as appeared to him the robbery of this stranger by appellant and his companion of the pistol, went ahead of them, reached Firestone’s residence where he was and told him that appellant and his crowd were a bunch of drunks, that they had taken a sixshooter from a party and had a Winchester, and in effect called upon the constable to act in the premises. The constable immediately took his pistol, got in an automobile, and rode down to the road where these parties would soon pass, with the intention of stopping and arresting them. The testimony, without dispute, shows that he had no time or opportunity to procure any warrant for their arrest, and that he had to act immediately. He was several miles from Henrietta. There was no justice of the peace nearer than Henrietta, nor any other means whereby he could have procured a warrant. It is certain that if he had not acted immediately, the parties would have entirely escaped and gone into Oklahoma before,he could have possibly overtaken them or procured a warrant. He reached the road these parties were running on before they got there, when he got out in the road, waved his pistol back and forth in his hand, and notified them that he was an officer, and demanded that they should stop; instead they speeded the faster, but after running 200 or 300 yards further they did. stop, and he started up towards them afoot, and appellant jumped out of his automobile, took the Winchester, ran back towards Firestone, and when not far distant from him, the state’s evidence shows, that he threw his Winchester down on Firestone, pointing it directly at him, and demanded that he throw down his pistol and throw up his hands. That Firestone at the time again reiterated to appellant that he was an officer, as he had stated to them when he had attempted to stop them •in the road just before this. That appellant did force the constable to lay his pistol down on the ground, move away from it, hold up his hands, and he had to remain in this condition until appellant reached the pistol, picked it up, and with his gun marched the constable down to where his car was. The assault in this instance is charged to have been committed at the time he leveled his gun upon the constable, forced him to lay his pistol down, move away from it, and hold up his hands. Whether the constable, when he first attempted to stop these parties in the road, told them that he was an officer or not, was a disputed point by the testimony. Also whether or not the constable so told appellant when he leveled his gun upon him, made him lay aside his pistol and hold up his hands, was disputed by the testimony; the state’s side showing that in both instances at the specified times the constable did notify them of his official position. When appellant marched the constable back to his car, the constable again told the crowd who he'was, and the other companions of appellant then made him deliver the constable’s pistol back to him, but before he would do so he unloaded it, kept all the cartridges and passed it back to him through one of the other parties. They thereupon jumped in their automobile, left, running very fast, and attempted to escape. The constable, it seems, went back up to his residence, near where these things took place, told his wife, or some others, to communicate with the officers at Henrietta what had occurred, and that the defendant and his companions were attempting to escape and to stop and arrest them, telling them substantially what had occurred, from which the parties making the communication and the officers at Henrietta receiving the communication believed, and acted upon such belief, that these parties had committed these crimes and were attempting to escape. AiDpellant and his companions stated, as shown, that when they left Firestone they ran their machine “awful” fast, trying to escape. That their route would take them through Henrietta, hut fearing they would be arrested if they attempted to go through Henrietta, they took another road so as to avoid going through Henrietta and attempted to escape into Oklahoma without being arrested at all. Firestone, it seems, as soon as he could, procured an automobile and took after appellant and his crowd, but he lost so much time and was so far behind that he did not catch up with them. The officers at Henrietta, as soon as communicated with, armed themselves, procured an automobile, and went on the road towards Wichita Falls, expecting to meet and arrest appellant and his crowd. They did not know them, however, and after running out a few miles did meet them; the appellant and his crowd running with great speed, as stated. Immediately after they met, the sheriff’s automobile was stopped, and another big, powerful machine belonging to Mr. Boyd came along, and Mr. Boyd, who had been following these parties, told the officers that the persons they had just met were the persons they were after. The officers then got in this big, powerful machine and took after appellant and his crowd. In attempting to avoid going through Henrietta on the road that they took, which appellant said he knew and by going it they would avoid Henrietta, they had to go through a gate, and to do this they had to stop the car, run it in, stop it again, and close the gate. That appellant himself got out with his Winchester in his hand, opened the gate, and had just closed it as these officers ran up. They immediately demanded that appellant and his crowd should halt, hold up their hands and surrender. Two of appellant’s companions promptly got out of the machine, did hold up their hands and surrender.' Appellant, however, retreated to the machine, and as the officers testified, attempted to shoot them with his Winchester, but his gun hung fire and would not shoot, and that they again fled some several miles before they could be overtaken again by the officers, and that just before the officers overtook them, they concluded that they had better go back and surrender. They stopped the car, and as the officers again caught up with them, they got out, held up their hands, and surrendered. We have merely given a general outline of what the evidence was sufficient to show, deeming it unnecessary to detail it. There were conflicts in the testimony on some material points.

Appellant has some bills objecting to the testimony of the witnesses following him in their automobiles as to the acts of appellant along the road leading up to the very alleged assault herein, such as that they were drunk, drinking, shooting along the road, and in the town of Jolley, the rate of speed, and the way they were running their machine, also what appellant’s companions shouted to him when he took his Winchester and ran back towards Firestone, making him hold up his hands and marching him back, wherein they shouted to him to shoot him, kill him, and such matters, and also the condition of appellant’s gun at the time, and that he was attempting to work it so as to shoot Firestone. We think all this testimony was admissible. It was a part of the whole transaction. The jury could not have understood the situation and properly passed upon the questions without it.

Appellant has another bill, wherein it is shown that he objected to the state’s witness Rountree telling that when he was hunting for the constable, he met Pat Firestone, a brother of John the constable, and that he asked him if he was a constable. That his attorney thereupon objected and was arguing that this one expression of the witness was inadmissible, and that the court, in passing on the question said to him:

“I don’t think that the constable at that time would have had to determine whether they were guilty of a felony or a misdemeanor, or which had been committed.”

This, as explained by the court, was a remark made to appellant’s counsel in his debating that question of law. The remark, while in-the hearing of the jury, was not to the jury at all, as shown. We think it no such comment as would authorize or justify a reversal of this case, even if it should be held to have been improper.

There was no error in the court permitting the witness John Firestone to tell that when Rountree came up to get him that he told him there was a bunch on the road with a gun and an automatic pistol, and for him to go down and stop them, telling him which one had the gun, and that he had seen him take the pistol away from another man on the road, and that the constable replied he would go down, and did go down; the court stating that he would permit him to say why he went down there.

Appellant by other bills shows that he objected to the testimony by the officers from Henrietta who responded to the call to arrest him and his bunch, which shows their flight and resistance of arrest when these officers came upon them at the gate and demanded their surrender, announcing that they were officers. The court at the time admitted this evidence, as stated by him, to show flight and resistance of arrest if it did and restricted the Jury to its consideration for that purpose only. This testimony undoubtedly tends to show both flight to avoid and prevent arrest, and resistance of arrest, at the time. Plight, or attempted flight, may always be shown as a criminating circumstance. Section 135, 1 Branch’s P. O. page 78, and authorities there collated. Also it may always be shown that when an accused is arrested, or sought to be arrested, for an offense, he resists it. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 401, 160 S. W. 361; 2 Jones on Ev. § 287. So that we think all this testimony was admissible on these points. However, the court later gave appellant’s specially requested charge, instructing the jury peremptorily that they could not consider any of said evidence for any purpose except to show flight, if it did, and that they could consider it for no other purpose whatever.

Neither did the court err in permitting the officers at Henrietta to tell that they were communicated with, and by whom, telling them in substance of the said acts of appellant and his crowd, and that they acted thereon and immediately proceeded to undertake to arrest them. The evidence unquestionably shows that they had neither time nor opportunity to procure any warrant for any of them; and, as stated, if they had not acted as promptly as they did, the appellant and his crowd would have entirely escaped, which they were undertaking to do, running their machine in the most reckless and rapid manner, and avoided going through Henrietta for the very purpose, as they stated, to prevent and avoid being arrested.

Neither did the court err in refusing to permit the county attorney to testify at appellant’s instance that appellant had been charged .with drunkenness, disturbing the peace, resisting the officer Cunningham, aggravated assault on Eirestone, and aggravated assault on Cunningham, all these persons being the officers who attempted to arrest him, and that said charges grew out of the facts and circumstances testified to by the various witnesses on this trial, though we cannot see where the state should have objected to this testimony. It occurs to us that it would clearly have been against appellant and not in his favor, but at any rate it had no legitimate bearing upon the trial of appellant in this cause.

Neither did the court err in permitting the state to introduce the written statement of the witness Eckman, which contradicted some of his testimony on this trial. The court admitted it, as he stated, for impeachment purposes of this witness, the proper predicate having been laid.

Neither did the court err in permitting the state to have Brown, appellant’s witness, on cross-examination, to tell in substance that it looked to him like when appellant was running back with the gun that he was getting ready to shoot. Even if this testimony had not been admissible, it was clearly excluded by the court’s charge given at appellant’s instance, which we have just mentioned above.

We think no reversible error has been pointed out in the trial of this case. The judgment will therefore be affirmed. 
      íte^>Fcr otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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