
    PORTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§ 322) — Judicial Notice —Judges oe District Court.
    The Court of Criminal Appeals will take judicial notice of the date of the incumbency and resignation of a certain judge, and also of the date on which his successor was appointed and took the oath of office.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 728; Dec. Dig. § 322.]
    2. Criminal Law (§ 1092) — Bill oe Exceptions — Approval.
    Under the statute, only the judge who tried a criminal case could approve a bill of exceptions and statement of facts, and Ms successor could not do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    3. Grand Jury (§ 38) — Presence oe Bailiee.
    The fact that the county attorney, while the grand jury was interrogating witnesses in the grand jury room, had with him in the room a regular bailiff as his stenographer taking down testimony, though he was not present while the grand jury was discussing the finding of a bill or voting, would not invalidate the indictment so as to be a ground for quashing it.
    [Ed. Note. — For other eases, see Grand Jury, Cent. Dig. § 81; Dec. Dig. § 38.]
    Appeal from Criminal District Court, Dallas County; Barry Miller and W. L. Crawford, Jr., Judges.
    Will Porter was convicted of murder, and appeals. Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

On December 31, 1912, the grand jury of Dallas county indicted appellant in criminal district court No. 2 of Dallas county for the murder of Jesse Franklin, alleged to have been committed on December 29, 1912. He was tried at the January term, 1913, and the verdict rendered on January 16th assessed Ms punishment at death. The term of the court at which he was tried convened on January 6, 1913, and adjourned on April 6, 1913.

The record shows, and we judicially know, that Judge Barry Miller was the judge of that court and that he did not resign as such judge until February 10, 1913. We also judicially know that Judge W. L. Crawford, Jr., was appointed and took the oath of office as the successor of Judge Miller on March 1, 1913. The record further shows that all of appellant’s motions for new trial and in arrest of judgment were acted upon by Judge Miller during his term of office, and that the notice of appeal was given on February 1, 1913, by which and at which time the jurisdiction of this court attached. In other words, the record shows that the whole case was tried and everything in connection therewith was had before Judge Miller while he was the judge of that court and before his resignation took effect, and that Judge Crawford had nothing to do with any of these matters. His connection with the ease and everything in connection therewith is shown to have begun for the first time on March 3, 1913, when he granted an extension of time to appellant for filing the statement of facts and bills of exceptions, and that his only connection with the case or any proceeding therein were on and after March 3, 1913.

There is filed with the record what purports to be a statement of facts and one bill of exception. The bill of exception was approved by Judge Crawford and not by Judge Miller. It shows to have been signed and approved and ordered filed by Judge Crawford on April 30, 1913, and further shows on its face that it was to the overruling of appellant’s motion made, heard, and acted upon by Judge Miller on February 1, 1913, in arrest of judgment, claiming the indictment was insufficient, because a person not authorized by law and not a member of the grand jury, nor an attorney connected with the prosecution in the ease, was present while the grand jury was investigating and deliberating on this cause as to whether or not they would find an indictment against appellant. It further shows that Judge Miller and not Judge Crawford heard evidence on said motion at the time he acted thereon and overruled the same.

The purported statement of facts was filed in the lower court on April 26, 1913. It was not approved by Judge Miller but shows to have been approved by Judge Crawford. Under this state of facts, as shown by this record, the Assistant Attorney General makes a motion to strike out the said bill of exception and statement of facts. This question has heretofore carefully been considered by this court in the case of Richardson v. State, 158 S. W. 517, wherein this court, after citing the statutes, held that the judge of the court who tried the case, before whom such proceedings were had, could alone approve bills of exceptions and statements of facts, and that his successor could not do so. We are thoroughly satisfied with the holding and opinion in that case, and in accordance therewith and with the statutes we are under the necessity of sustaining the motion of the Assistant Attorney General, which we do, and therefore strike out the said bill of exception and statement of facts.

Notwithstanding this, as tMs is a case where the death penalty is assessed we have carefully read the said bill of exception and purported statement of facts and all of the questions raised by appellant in connection therewith; and, if we could properly consider said purported statement of facts, it would be amply sufficient to show: That on December 29, 1912, about 4 p. m., the appellant and deceased were in a barber shop in the city of Dallas, Tex.; that immediately preceding the killing for some time they had been gambling together, playing against one another; that the deceased had been doing the winning and wanted to quit and did quit the game; that appellant objected to this and became incensed because deceased would not longer continue gambling with him; that the deceased, after getting up from a bathroom wherein they had been gambling, proceeded to leave appellant and procure and start to put on his overcoat; that, before he could complete putting on his overcoat, appellant said to him, “I won’t allow any God damn son of a bitch to treat me wrong,” at once went to his own overcoat, only a step or two from him, procured a six-shooter, and began shooting at the deceased therewith; that the first shot struck the deceased near the center of the hack, going entirely through his body, coming out neár his navel; that the deceased then partially turned around and that appellant again shot him through the left arm and then in the left side near or through the heart; that, after the deceased had fallen on the floor, appellant shot him again, then searched his pockets, and took the deceased’s money out of his pockets, one dollar in silver dropping on the floor which was found soon afterwards when the body of deceased was removed. The appellant himself swore that he shot and killed the deceased, firing five or six times at him, but he claimed that he did so to protect himself because he thought deceased was attempting at the time to get his knife and attack him (appellant); that he did not see any knife and did not see the deceased get any knife, or open any knife, but that he knew he was a dangerous and violent man; that he had on one or two occasions shortly before then seen the deceased have a fight with others in which he attempted to use or did use a knife; and that about a month prior to this, appellant himself had a fight with him, at which time he (deceased) attempted to use a knife on him. Several eyewitnesses for the state testified that at the time appellant killed the deceased the deceased did not have any knife, did not attempt to get any, and made no assault or attempted assault on appellant, and did not threaten to assault him, but that the appellant shot the deceased in the back the first time without any provocation at all and continued shooting him rapidly until he had killed him, as stated above. The evidence by the state, if we could consider it, shows, without doubt, murder in the first degree. The preponderance of it is against appellant’s claimed self-defense, and it .does not show, or tend to show, manslaughter. The • court, however, charged on manslaughter in the only way that it could be claimed with any show of reason to be raised. He charged on self-defense in appellant’s favor fully and correctly, to which there is no complaint. The claimed insulting-language by deceased to appellant, immediately before the killing, even if it had been used, does not show to have been the cause of the killing but rather excludes that idea and the court was not called upon to submit manslaughter on that theory. Even such language would not be adequate eduse. Fitzpatrick v. State, 37 Tex. Or. R. 20, 38 S. W. 806.

If we could consider the said bill of exceptions at all, it shows this: That the county attorney had with him in the grand jury room, at the time the grand jury was interrogating the witnesses in regard to this offense, Frank Barcum, who was a regularly and duly sworn bailiff for said grand jury, as his stenographer, taking down the testimony of the said witnesses; that he was not present while the grand jury was discussing the propriety of finding a bill of indictment, nor while' the grand jury was voting on that question. This court has repeatedly held that under such circumstances the indictment was a valid one and should not be quashed on that account. Sims v. State, 45 S. W. 705; Wilson v. State, 41 Tex. Cr. R. 117, 51 S. W. 916; Haywood v. State, 61 Tex. Cr. R. 96, 134 S. W. 218. So that in no event, even if we could consider it, would the bill of exceptions present any error in this case.

In no way, whether with the bill of exceptions and statement of facts fully considered, or without either or both of them, does the appellant point out any reversible error whatever in this case. The judgment will therefore be affirmed.

MEMORANDUM DECISIONS  