
    MAHANEY v. STATE.
    (No. 7190.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.
    Appellant’s Rehearing Denied Oct. 17, 1923.)
    1. Criminal law <@=>1091 (4) — Bill of exception^ complaining of exhibition of wounds held insufficient, for failure to state conditions.
    A bill of exceptions complaining of the exhibition of wounds to the jury held insufficient, for failure to state the conditions rendering the exhibition of the wounds erroneous.
    2. Criminal law &wkey;>404( I) — Wounds may beex-hibited only when they tend' to solve controverted issue.
    Wounds may be exhibited to jury only when they tend to solve some controverted issue.
    3. Criminal law <&wkey;>! 171 (I) — Action of prosecution in bringing clothes worn by prosecuting witness at time of encounter into courtroom held not reversible, in view of court’s ruling and instruction.
    In a prosecution for assault with intent to murder, the action of the prosecution in bringing the clothes worn by the prosecuting witness at the timé of the encounter into the courtroom, and offering the clothes in evidence, held not ground for reversal, in view of court’s ruling that the clothes were inadmissible, and instruction admonishing jury not to consider the fact that the clothes had been brought into the courtroom, and the inability of the jury to see more than a small portion of the clothes which were contained in a grip.
    ■4. Criminal law &wkey;>396(2) — Exclusion of de. fendant’s testimony as to previous difficulty held error, in view of prosecuting witness’ testimony relative thereto.
    In a prosecution for assault with intent to murder, in which the defendant claimed to have acted in self-defense, and in which the complaining witness testified as to a previous difficulty between the parties, and stated that as a result of such previous difficulty the defendant had “had it in for him,” the exclusion of defendant’s testimony as to the previous difficulty held error, in view of Code Or. Proc. art. 811.
    5. Criminal law <&wkey;804(3) — Verbal admonition not to separate before verdict not violative of statute forbidding verbal instructions in a felony case.
    A verbal admonition that the law forbids a separation of jury before verdict is not viola-tive of Code Cr. Proc. art. 740, forbidding verbal instructions in a felony case.
    
      6. Criminal law <&wkey;655 (8) — Instruction' that unless jurors stayed together the court would have to give a new trial held to intimate that in court’s opinion the verdict would be “guilty.”
    Yerbal instruction that jurors must stay together, and that “unless you do the court will have to give a new trial,” held erroneous, in that it was susceptible of the interpretation by the jury that in the court’s opinion'the verdict would be “guilty,” in violation of Code Or. Proe. arts. 740, 787.
    7. Criminal iaw 165(1) — Doubt as to whether error was prejudicial resolved in accused’s favor.
    ■Where the evidence is conflicting, the punishment above the minimum, and the result questionable, the appellate court will r.esolve a doubt as to whether an error was prejudicial in favor of the accused. .
    On Motion for Rehearing.
    8. Criminal law <&wkey;l09l (4)— Bill of exceptions complaining of admissibility of evidence held insufficient for failure to show that evidence was not illustrative of any material issue.
    In a prosecution for assault with intent to murder, a bill of exceptions complaining of the admission of testimony of a third person that he was cut by the defendant during the fight between' the defendant and the prosecuting witness, without showing that the facts and issues were such that the evidence was not illustrative of any material issue, held insufficient.
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    Newt Mahaney was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Barter & Barter and J. Lee Cearley, all of Cisco, and J. P. Cunningham, of Abilene, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of four years.

This is a synopsis of the state’s ca.se: Startey, the injured party, and appellant, had tnown each other for about three years. Both were operators of service cars. About 18 months prior to the present occasion, a difficulty had taken place between them, since which time they. had not been on friendly terms. On the day that the alleged assault took place, Starkey and the witness Nolley were together. Nolley called the appellant and said to Starkey: “You can ask Mahaney what you want.” Starkey said: “Newt, I brought Nolley over here to tell you he never slapped my jaws.” A wordy altercation took place, but -the parties were separated. Later they met and a fight took place. It came about thus: Nolley told Starkey that he did not tell anybody that he had slapped his jaws, but that he could do it, and drew back like he was going to hit him. Nolley drew his gun, and the witness March-man ran in and caught Nolley’s arm. Appellant then entered the fight, and cut Starkey a number of times with a knife. During the mSlée Starkey hit the appellant several times. According to Nolley’s testimony, after the first interview had taken place, Starkey approached Nolley, and, after using insulting language, struck him, rendering him almost .blind. Nolley drew his pistol to use as a bludgeon, -when Marchman interfered and caught hold of his arms. Nol-ley was in a feeble condition, due to a previous affray, and did not know of appellant’s entry into the affray.

This is appellant’s version, as revealed by his testimony: On the day of the encounter, he was advised to watch Starkey, as he bad a gun. Appellant informed Officer Looney of the matter, and later was called by Sheriff Nolley to an interview with Starkey, when the latter accused appellant of telling lies about Nolley, slapping his jaws, and using towards him other insulting language. Nolley prevented a fight, and the parties separated. Later appellant observed Nolley, Starkey, and Marchman engaging in a struggle, the beginning of which he did not see. He saw two men holding a pistol, when he grabbed Starkey to, pull him loose. Starkey then struck the appellant in the face, and knocked him to his knees, and attempted to “stomp” him, when he cut him in the leg with his knife. Starkey pressed the fight upon the appellant, who defended himself with his knife. He denied having threatened to kill Starkey at any time.

Other witnesses described the encounter in a manner coinciding, in a general way, with the description given of it by Starkey.' This is true of Marchman, who said that Nolley struck Starkey and began the fight; that Nolley then pulled his gun and said that he would kill Starkey. The witness ran between them and took hold of Nolley’s hand. Appellant ran in, and cut Starkey on his arm and breast, and then, cut the witness. Starkey hit the appellant, and then Nolley hit Starkey with his. gun.

In bill of exceptions No. 5 complaint is made of the ruling of the court which permitted the witness Starkey' to exhibit to the jury the wounds inflicted upon him by the appellant during the encounter. We note in the bill that the wounds are not described further than that the witness, with reference to one of them, said: “This is drawn up, and is about half as long as it was.” Referring to the wound on his breast, the witness said that it was inflicted after he had been knocked down by Nolley. Appellant cites Newman v. State, 85 Tex. Cr. R. 556, 213 S. W. 651; Chapman v. State, 66 Tex Cr. R. 489, 147 S. W. 580; Graves v. State, 58 Tes. Cr. R. 42, 124 S. W. 676. In Newman’s Case, supra, the court, in holding that there was no occasion for eshibiting the scars, said:

“These scars were of such a nature as to indicate that the wounds were severe and very uncomely in appearance. They are described and made to appear in the record as being of .an ugly nature. * * * If there had been a question to be solved by the exhibition of these wounds, we would have had a different proposition; but there was none. Concededly and without question these wounds were testified to have been in the back, and all the details of the testimony were given as to how they occurred and the manner in which they did occur.”

In the Graves Case, supra, the evidence of the wounds were excluded because their character had been changed by an operation. In Chapman’s Case, supra, the wound was inflicted by a gunshot. There was no question but that the weapon used in that case was a deadly one. The law does not interdict the exhibition of wounds, but limits their receipt to occasions when they tend to solve some controverted issue. 2 Wharton’s Crim. Evidence, § 518b. In Mayes v. State (Tex. Cr. App.) 100 S. W. 386, a case "of assault with intent to murder, the exhibition of the wounds was held proper.' In the recent case ■of Hunt v. State (Tex. Cr. App.) 250 S. W. 168, in which the evidence of assault with intent to murder was held insufficient, attention was drawn to the fact that it was incumbent upon the state to prove that a deadly weapon was used. The knife was not described. In that case it was held that, in the absence of a description of the knife or the wound, there was not sufficient evidence to justify the inference that the weapon used was a deadly one. It being permissible under some circumstances to exhibit wounds to the jury, it was incumbent upon the appellant in the instant case to show, by bill of ■exceptions, the conditions which rendered them inadmissible. The bill, in our opinion, is not of that character.

The bill complaining that the clothes worn by Starkey at the time of the encounter were contained in a grip and brought into the courtroom is qualified by the trial court in ■such a manner as to render the complaint of it untenable. According to the bill, the grip was brought into the courtroom and opened, and the clothes offered in evidence. The court sustained the objection to them, and instruct- ‘ ed the jury that the fact that they had been offered in evidence or brought into the courtroom could not be considered. ’He further stated that the jury could not see the clothes, except slightly at the top.

In Starkey’s evidence, the previous difficulty was not otherwise described than as a “little spat” taking place some 18 months antecedent to the date of the present encounter. Starkey said, however, that following this previous difficulty the appellant had “had it in for him,” and lost no opportunity to endeavor to thwart Starkey in the conduct of his business. This version of the previous affair was calculated to leave upon the minds of the jury the impression that the appellant was in the wrong, and that his subsequent behavior was due to jealousy of Starkey’s business success as a competitor of the appellant and to imply malice therefrom. Appellant sought to describe .the previous difficulty in these words:

“That the prosecuting witness, about 2% years ago accused this defendant of cutting the price of jitney fares; that both parties are in the transfer business in the city of Cisco; that when the prosecuting witness called this defendant a liar, and told him that he was a damn liar, that he knew that he had cut prices, the defendant denied that he had done so and the prosecuting witness, L. J. Starkey, made an-attempt to assault Mahaney; that defendant was a deputy sheriff on said date, and, when the prosecuting witness attempted said assault, defendant drew his gun and stopped the prosecuting witness in his act.”

The trial court held this immaterial and irrelevant, and refused to receive it in evidence. In the statute it is said:

“When part of an act * * * or conversation * * * is given in evidence by one party, the whole on the same subject may be inquired into by the other.” Code Cr. Proc. art 811.

Many decisions of this court are found in 2 Vernon’s Tex. Crim. Stat. p. 759, art. 811, indicative of the construction given this statute. Many of these are cited in Williams v. State, 89 Tex. Cr. R. 334, 231 S. W. 112. The state having put in'evidence Starkey’s view of the former difficulty, the right of the appellant to give his version seems obvious. The evidence of the incidents of the present difficulty and immediately preceding it is conflicting.' All controverted facts have been decided against the appellant. The indictment upon which' he was charged embraced not only the offense of assault with intent to murder, but included that of aggravated assault. The jury selected not only the highest grade of the offense, but' assessed against him double the minimum penalty. To what extent the jury was influenced by the unfavorable light in which the appellant was put with reference to the previous difficulty, and how they might have viewed it if appellant had been permitted to explain the circumstances under which it took place, are matters which cannot be definitely ascertained. It is clear, however, that in rejecting the appellant’s testimony, upon the subject of the previous difficulty, an error was committed by the learned trial judge.

Just before the jury retired for lunch the court verbally gave to them this instruction:

“Gentlemen of the Jury: You must not separate, and you must stay together. The Court of Criminal Appeals has held that you must stay together, and unless you do the court will have to give a new trial.”

An exception was reserved to this at the time. Complaint is made that this instruction was violative of the statute which prohibits the trial judge, “at any stage of the proceedings, previous to the return of the yerdict, from making any remark calculated to convey to the jury his opinion of the case.” The statute (article 740, C. C. P.) forbids any verbal instructions in a felony case. Article 787, C. C. P., forbids any remark by the trial court, verbal or written, which conveys to the, jury his opinion of the case. The inhibition against a verbal charge is not violated by a verbal admonition to the jury to the effect that the law forbids a separation before verdict. It is feared that in the instant case the learned trial judge, in admonishing the jury, made an unhappy choice of language. One with the intelligence and information which is supposed to characterize a juror acceptable to both the state and appellant would know that it was only in case of a verdict of guilty that a new trial could be granted. The remark of the court that, if they separated, he would have to grant a new trial, was at least susceptible of the interpretation by the jury that, in the opinion of the court, the verdict would be “guilty.”

In giving effect to the statutory provisions which have just been mentioned, the court has found much difficulty in deciding when remarks in a given case were prejudicial. It has often been held that the remarks of the .court, while not proper, were not prejudicial. See English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632; 2 Vernon’s Crim. Stat. p. 693, and cases cited. Verbal remarks, however, have frequently been held prejudicial. See Kelly v. State, 33 Tex. Cr. R. 31, 24 S. W. 295; Price v. State, 35 Tex. Cr. R. 501, 34 S. W. 622; McCullar v. State, 36 Tex. Cr. R. 213, 36 S. W. 585, 61 Am. St. Rep. 847; Yates v. State, 68 Tex. Cr. R. 457, 152 S. W. 1064. In another ease on the subject, this language was used:

“Jurors are prone to seize with alacrity upon any conduct or language of the trial judge, which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret. Kirk v. State, 35 Tex. Cr. R 224; Crook v. State, 27 Tex. Cr. App. 198; Anderson v. State, 83 Tex. Cr. R. 261, 202 S. W. Rep. 946.” Lagrone v. State, 84 Tex. Cr. R. 615, 209 S. W. 411, 415.

The particular language used to admonish the jury in this instance was held erroneous in Johnson’s Case, 67 Tex. Cr. R. 441, 149 S. W. 165. It is made clear to the mind of the court that on the trial of the case, in the exclusion of evidence and in the terms used in ádmonishing the jury, error was committed. Whether the error was prejudicial to the appellant is a matter of uncertainty.

The evidence being conflicting, the punishment above the minimum, the commission of error certain, and the result questionable,' we are constrained to resolve the doubt in favor of the accused. It is therefore ordered that the judgment be reversed, and the cause remanded.

On Motion for Behearing.

LATTIMOBE, J.

In a motion for rehearing appellant asks that we pass upon the admissibility of the testimony of one March-man, who stated, over the objection of appellant, that he was cut by appellant in the difficulty which formed the foundation for this prosecution, and was permitted to exhibit the cut in his shirt and the sear of the wound in his body. An examination of the bill of exceptions complaining of the admission of this testimony fails to show that it was not pertinent testimony. Thére could be many ways in which the introduction of this testimony could serve to solve issues in the ease. We would not be willing to hold it error for the court below to have permitted such evidence to go before the jury, unless it be shown in the bill of exceptions that the facts and issues were such as that the evidence was not illustrative of any material issue in the case.

The motion for rehearing will be overruled. 
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