
    RILEY v. STATE.
    (No. 7035.)
    (Court of Criminal Appeals of Texas.
    June 14, 1922.)
    1. Criminal law <§=>804(1) — It is reversible error to give verbal charge in misdemeanor case without defendant’s consent.
    Code Cr. Proc. 1911, art. 740, providing that no verbal charge shall be given in any case whatsoever except in cases of misdemeanor, and then only by .the consent of the parties, is mandatory, and it is reversible error to give such charge without accused’s consent.
    2. Criminal law <§=>804(3) — Reading from law books and memoranda to jury is giving verbal charge.
    Reading from law books and memoranda to the jury is giving a verbal charge, which requires defendant’s consent in a misdemeanor case.
    3. Criminal law <§=>804(2) — Record held to show that verbal charge was given without defendant’s consent.
    Upon appeal from a conviction óf a misdemeanor, record held to support the proposition that the verbal charge given by the trial court was without the consent of the defendant, and was therefore in violation of Code Or. Proe. 1911, art. 740.
    4. Criminal law <§=>804(2) — Court not warranted in giving orál charge because accused does not make his objection thereto in writing.
    Code Cr. Proe. 1911, art. 740, does not compel a defendant to make known his desire for written charge in misdemeanor case, or his objection to a verbal charge in writing, so that defendant’s failure to so request in writing does not warrant the judge or the court in giving an oral charge.
    5. Criminal law <§=>1092(11) — Statement of exceptions not approved or certified cannot be considered.
    Upon appeal from a conviction of misdemeanor, a lengthy statement of exceptions to the court’s charge as given but in no way approved or certified by the trial court cannot be considered by the court of criminal appeals.
    6. Criminal law <§=>l 120(1) — Record held not to authorize review of admission of testimony.
    Upon appeal from a conviction of aggravated assault, admission of testimony that one who was jointly indicted with defendant had assaulted another is not reviewable on objection that there was no evidence ot previous arrangement between appellant and the other defendant, wjiere it appears that the time the other defendant was on the step of the car occupied by prosecuting witness appellant was on a motorcycle running alongside the car, and the record does not show whether the trial court submitted the case on the theory of principals.
    7. Criminal law <§=>459 — In prosecution for shooting at prosecuting witness, testimony should have been limited to places where bullets struck automobile in which he was, riding.
    In a prosecution for aggravated assault, where the prosecuting witness was riding in an automobile into which the shots were fired, testimony of witnesses should have been confined to statements as to the relative places in the car of the bullets and of the occupants seated as persons ordinarily would be, and should not have been allowed to give their opinion that the bullets' would have struck the occupants had they struck in a little different place.
    8.'Criminal law <§=>l 134(3) — Voluntary statement of witness, not likely to be before the court in another trial, need not be discussed.
    On appeal from a conviction of aggravated assault, uncalled for and voluntary statements of a witness as to acts of defendant and his companion being cowardly, which are not likely to be before the court in event of another trial, need not be discussed.
    9. Assault and battery <§=>49 — Intention to injure person is an essential requisite of assault.
    While shooting into the wheels or body of an automobile by defendant might be reprehensible, the jury should not be allowed to convict of assault therefor, unless such shooting was with intent to injure some or all of the occupants of the car for the intent to injure the person or some other is an essential requisite of assault.
    Appeal from Jefferson County Court at Law; D. P. Wheat, Judge.
    Fred. Riley was convicted in the county court of aggravated assault, and he appeals.
    Reversed and remanded.
    I-Iowth & O’Fiel, of Beaumont, for appellant.
    R.' G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court at law for Jefferson county of the offense of aggravated assault, and his punishment fixed at a fine of $50 and one month in the county jail'.

There appears in the record a bill of exceptions to the action of the trial court in refusing to give a written charge to the jury herein, which bill of exceptions, as originally presented, was refused by the court, who thereupon appended certain statements in qualification of said bill, and, as thus qualified, same was approved. Appellant’s original bill of exceptions set up that, at the conclusion of the evidence, he requested the court to give a written charge, and handed to the court a charge prepared by him asking that same be given, which request was refused, the court stating that he would give a verbal charge, which he proceeded to do; that, at the conclusion of said verbal charge, appellant renewed his request that a written charge be given, and this was also refused by the court, to which action appellant excepted. The learned trial judge notes on this bill that he declines to approve same, and his qualification thereto states that he announced, in open court at the conclusion of the evidence, that he would give a verbal charge to the jury, and that counsel for appellant then handed to him a written charge which he had prepared; that, after reading this, the court informed counsel that he would refuse such charge, and then proceeded to charge the jury verbally; that, after such verbal charge had been given, appellant’s counsel orally asked that a charge in writing be given to the jury, but made no written request therefor; that, upon the refusal of such oral request, appellant took his bill of exceptions.

We confess inability to observe any great difference between the legal effect of the matter stated in the original bill and same as qualified by the court below. Article 740 of our Code of Criminal Procedure provides that no verbal charge shall be given in any ease whatever, except in cases of misdemeanor, and then only by the consent of the parties. In Vernon’s Annotated Code of Criminal Procedure, p. 500, it is stated that this article is mandatory, and many cases are cited supporting the proposition that it ia such. It is reversible error to give a verbal charge in a misdemeanor case without the consent of the accused. Melton v. State, 12 Tex. App. 488; Wilson v. State, 15 Tex. App. 150; Anthony v. State (Tex. Cr. App.) 235 S. W. 578. Reading from law books and memoranda to the jury is giving a verbal charge. Wright v. State (Tex. Cr. App.) 235 S. W. 886. There being no question of the fact that a verbal charge was given in the instant case, we are only called upon to- decide whether appellant consented thereto. We do not think so. There appears no express consent in the record. We infer from every action and statement of the appellant appearing in the record that he not only withheld consent, but was opposed to the giving of such verbal charge It is plain that a general written charge, apparently covering all the issues in the case as appellant’s counsel took them to be, was presented to the court, and he was asked to give it to the jury. Whether this preceded or followed the announcement by said court of his intention | to give a verbal charge, would be immaterial. It certainly evidenced the desire of appellant for a written charge. Nor do we find sufficient reason or excuse for refusing to give a written charge, in the statement of the trial court that the request therefor was made orally by appellant’s counsel. We find nothing in the statute compelling appellant to make known his desire for such written charge, or his objection to a verbal charge, in writing. ' In our opinion the record before us supports the proposition that the verbal charge given by the tiial court was without the consent of the appellant, and was therefore in - violation of article 740, supra.

There appears in the record a lengthy statement of exceptions to the charge of the court as given, but same is in no way approved by the trial court, or certified in any such manner as that we can consider same.

By a bill of exceptions complaint is made of the testimony of Mrs. Moore that H. 1j. Rich, who is jointly indicted with appellant, had assaulted Mrs. Goodell and committed actual violence upon her, the ground of said objection seeming to be that there was no evidence of previous arrangement or agreement between appellant and Rich, and that he would not be bound by the acts of Rich done without such arrangement or agreement. It appears that at such time Rich was on the step of the car occupied by the prosecuting witnesses and appellant was on a motorcycle running along by the side of said car. In the condition of the record and- being unable to know if the trial court submitted the case upon the theory of principals, we are in no position to conclude injury from this testimony.

As stated in a bill of exceptions, the evidence of two witnesses, who were not in or near the car at the time of the alleged assault, and whose conclusions, as stated in their testimony, were formed from an inspection of the car after the occurrence had ended, would not appear to be admissible. Said witnesses testified that, if the bullets fired into the car had gone three to four inches higher, they would have struck the occupants of the car, and that, if they had struck ten inches forward, they would have.struck the legs of the occupants Of the car. These statements could be but opinions and speculative. Argument would not be needed to make clear the fact that the truth of such affirmation would depend upon the position of the bodies and legs of the occupants of such car. The testimony of such witnesses should have been confined to statements as to the relative places in the car of the bullets, and of occupants seated and placed as persons ordinarily would be.

The uncalled for and voluntary statement of the witness Weaver, as to the acts of appellant and his companion being cowardly, will not likely be before the court in the event of another trial, and hence will not be discussed.

We have no means of knowing which count of the indictment was submitted. While the shooting into the wheels or body of said car by appellant might be reprehensible, the jury should not be allowed to convict appellant of assault therefor, unless such shooting was with intent to injure some or all of the occupants of the car; for the intent to injure the person of some other is an essential requisite of an assault.

For the errors mentioned above, the judgment of the trial court will be reversed, and the cause remanded. 
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