
    WHITE v. STATE.
    (No. 6967.)
    (Court of Criminal Appeals of Texas.
    May 17, 1922.)
    1. Criminal law <¾=>1036(2), 1044 — Where no objection nor motion to strike unresponsive answer will not be considered on appeal.
    An unresponsive answer of a witness will not be considered on appeal, where no objection to the answer or request to strike it from the record is shown.
    2. Homicide 195 — Evidence by witness that she was shot in back of left leg and of the effect held admissible.
    Where accused fired at the prosecuting witness and her mother from the rear as they passed in a wagon, evidence by the mother that she was shot in the back of the left leg and of the effect of the shot was admissible, on the issue of self-defense, to show the location of accused at the time she fired.
    3. Homicide <®=»I73 — Evidence of effect of shot held admissible to show character of weapon.
    In a prosecution for assault with intent to murder, evidence as to the effect of the shot was admissible to show whether the pistol used by accused was calculated and likely to produce death.
    4. Criminal law <§=n922 (7) — Objections to instructions cannot be raised for first time in motion for new trial.
    ■ Under Yernon’s Code Cr. Proe. 1916, arts. 735, 743, an objection that the trial court erred in omitting an instruction on aggravated assault cannot be raised in a motion for new trial, where it was not objected 'to in writing before the instructions were read to the jury.
    Appeal from Criminal District Court, Tar-rant County; George E. I-Iosey, Judge.
    Ida White was convicted of assault with intent to murder, and appeals.
    Affirmed.
    Phillips, Ammerman & Hurley, of Fort Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of Fort Worth, and R. G. Storey, Asst.' Atty. Gen., for the State.
   HAWKINS, J.

Appellantl was convicted of assault with intent to murder upon one Mary Hazel Sheppard, her punishment .being assessed at five years’ confinement in the penitentiary.

Queen Skelton and her daughter, Mary Hazel Sheppard, lived near appellant. The relations existing between the two families were anything but pleasant. About two years before the transaction out of which this prosecution grew, appellant had made an assault upon Queen Skelton, cutting her with a knife. A short time before the present assault, appellant and Mary Hazel Sheppard . had twice had trouble. Appellant claims that in each instance where difficulties arose between her and these other parties they were to blame. The testimony from them is directly to the contrary, indicating that appellant was the instigator of the trouble in each instance, and in this they are supported by other proof. The assault in the present instance occurred early in the morning. Appellant had left her house for the purpose of staking out her cow. It was the custom for Queen Skelton and her daughter to go to their work in a wagon, and upon this particular occasion, as they were going toward their work as usual, they met appellant returning to her home on foot. The state’s evidence shows that appellant passed the wagon and after reaching the rear end thereof turned, and drawing a pistol, followed the wagon firing at Queen Skelton and the Sheppard woman from the rear. Appellant, on the contrary, claims that about the time she ■ was even with the wagon both the Skelton and Sheppard women reached for a pistol which was on the wagon seat, and that she (appellant) fired at them in self-defense.

We find only one bill of exception in the record. Queen Skelton had testified that she was shot in the left leg. She was asked by counsel for the state: “In what portion of your left leg were you shot, front or back?” To which she replied: “It was right down on the seat, where it come under the seat.” State’s counsel then asked: “You say it broke your leg?” To which she replied: “Yes, sir; they X-rayed my leg last Tuesday.” The bill recites that appellant objected to this testimony because appellant was not being tried for an assault upon Queen Skelton, but for an assault upon Mary Hazel. Sheppard, and because the evidence was immaterial and had no bearing on the case. The objection was overruled, and the witness answered further:

“I started to say they X-rayed my leg last Tuesday: Well, it is healed up all right on the outside, but on the inside the doctor says there is no healing at all on the inside, and the bone is 'busted all to pieces, and I will have to go back to the hospital and have it opened and a plate put on the bone before I can walk.”

It will be observed that the last-quoted part of the answer was not responsive to the question, but the bill fails to show any objection to this part of the answer or that the court 'was requested to strike the same from the record. We are of opinion that the bill shows no error on the part of the court in permitting the witness Queen Skelton to testify whether she was shot in the-back or front part of her leg, and as to the effect of the shot. The state’s evidence indicated that appellant was firing at both Queen Skelton and her daughter, and there i was an issue made by appellant’s testimony as to whether she was firing at them from the rear of the wagon or from the front or side, and it was pertinent upon that issue for the state to show in what portion of witness’ leg the shot struck as bearing upon the location of appellant at the time she fired. The pistol with which appellant made the assault was not in evidence, and it was also proper for the state to show the effect of the shot in order that the jury might determine whether the weapon used was calculated and likely to produce death.

Appellant urged upon motion for new trial that the court was in error in not submitting the issue of aggravated assault. No objections were filed to the court’s charge for such omission, and no speeidl charge was requested upon the subject. The many cases cited by appellant in his brief would have been pertinent under the law prior to the enactment of article 735, C. O. P., requiring all objections to the court’s charge to be filed at the time of trial and before the charge was read to the jury. No objections whatever having been presented to the trial judge complaining of any omission in his charge, it is too late to urge the same upon motion for new trial. Faust v. State (Tex. Cr. App.) 237 S. W. 269 ; article 743, C. C. P.; and authorities collated on page 525, note 61, Vernon’s C. C. P.

Finding no error in the record which calls for a reversal, the judgment of the trial court is affirmed. 
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