
    BELL et al. v. STATE.
    (No. 4319.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.)
    1. Criminal Law <§=>747 — Witnesses — Credibility — Questions fob Juey.
    Under conflicting evidence, credibility of the witnesses is a question for the jury.
    [Ed. Note. — For other cases,. se.e Criminal Law, Cent.Dig. §§ 1714,1727; Dec.Dig. <§=>747.]
    2. Criminal Law <@=>792(2) — Principals—Instructions.
    Where the state’s evidence tended to show that one defendant held the deceased while the other defendant shot him, it is proper to charge the law of principals as to the first defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dee. Dig. <§=> 792(2).]
    3. Criminal Law <§=>1153(2) — Witnesses — Competency.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 788, providing that all persons are competent to testify in criminal actions except insane, and children who, after examination, appear not to possess sufficient intellect or do not understand the obligation of an oath, the court will not revise the judge’s order permitting deceased’s seven-year old son to testify as to the facts of the homicide in the absence of showing that the discretion of the court was abused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3062; Dec. Dig. <§=>1153(2).]
    4. Criminat, Law <§=>700 — Trial—Statement or1 Case.
    Vernon’s Ann. Code Or. Proc. 1916, art. 717, subdiv. 3, requiring the prosecuting attorney to state to the jury the nature of the accusation and the facts expected to be proved, is directory, not mandatory, and in the absence of injury because of omission of such statement, there was no error.
    [Ed. Note — Por other cases, see Criminal Law, Cent. Dig. §§ 1658, 1659; Dec. Dig. <§=> 700.]
    5. Homicide <§=>169(1) — Evidence—Admissibility.
    In a prosecution for murder defended on the ground of self-defense, it was proper to exclude testimony that deceased on the morning of the homicide passed near the witness’ house, did not speak to her, and appeared to be in a solemn mood.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 341; Dec. Dig- <@=>169(1).]
    6. Criminal Law <§=>1137(3) — Appeal —Invited Error.
    Accused persons cannot complain of instructions literally following the special charge requested by them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3009; Dec. Dig. <§=>1137(3).]
    7. Criminal Law <§=>822(1) — Instructions— Construction.
    When any part of the charge is attacked, the whole charge must be looked to, and if no injury is shown on the perusal of the whole charge, there is no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1994, 3158; Dec. Dig. <§=>822(1).]
    8. Criminal Law <§=>1172(1) — Instructions— Prejudice.
    Where accused objected to the charge on principals, and the court then stated that he ■would give the charge requested by accused and withdraw his own charge, but through error withdrew only a part thereof, but his attention was not called to it until the motion for new trial, accused was not prejudiced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154; Dec. Dig. <§=> 1172(1).]
    9. Criminal Law <@=>1144(6) — Appeal—Presumptions.
    Where the record showed a motion for change of venue, which was contested, but failed to show what testimony was heard, the legal presumption is that the court’s action was right.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2740, 2757, 2901, 3021; Dec. Dig. <@=>1144(6).]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    John F. and Jim Bell were convicted of murder, and they appeal.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were convicted of murder, and tbeir punishment assessed at life imprisonment.

J. T. Dawes was the man whom they are alleged to have killed by shooting with a pistol and striking him with a stick and file. The undisputed testimony by many witnesses shows that the body of deceased was most brutally and horribly shot up, and beaten up from the crown of his head nearly to the soles of his feet, at least to the tops of his shoes. The state’s testimony, which was ample, and evidently believed by the jury and lower court, by an eyewitness and through corroborating testimony, showed that appellant John F. Bell held deceased while Jim Bell ■shot him three times after he had beaten him up. The testimony of defendants — both testified — raised the issue of self-defense. The state’s testimony disputed this and was amply sufficient to show that the killing was not in self-defense. The issue was fully presented in the court’s charge, to which there was no complaint. It was proper also for the court to charge the law of principals as to John F. Bell, which he did. There was some testimony tending to impeach the testimony of some of the material witnesses on both sides, but all this was a matter for the jury, and proper charges were given on the subject. It is unnecessary to detail the testimony. All issues raised can be passed upon without that.

One of the state’s main witnesses was the son of deceased, who was an eyewitness to the beating and killing. He was some two or three months over seven years of age. The appellants objected to his testifying, claiming that he was incompetent. The trial judge, after an examination of him, held he was competent, stating that he regarded him as having more than ordinary intelligence for his age, and refers to his entire testimony as bearing on his competency. The court has all the time held under the statute (Vernon’s Ann. Code Or. Proc. 1916, art. 788, subdiv. 2) that the competency of a witness of tender years is determinable by an examination by the trial judge, and the action of the trial court thereon will not be revised on appeal in the absence of a showing that its discretion holding the witness competent was abused, and unless abuse of such discretion is apparent. This proposi-ticm is plainly laid down and a great many decisions of this court cited by both Judge "White in his An. C. O. P. § 951 et seq., and 2 Branch’s An. P. C. § 1771. Under the authorities, we think it is dear the trial judge did not abuse his discretion, and we would not be authorized to so hold, and we hold that the witness was competent.

It has all the time been held by this court that subdivision 8, art. 717, Vernon’s Ann. Code Or. Proc. 1916, to the effect that the prosecuting attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved before introducing his testimony, is directory and not mandatory, and that no error is shown when the trial court does not require the prosecuting officer to make such statement, unless injury 'because thereof is shown. In this ease we think no injury is shown because the prosecuting officer did not make such statement, and hence no error is presented in the court’s refusal to require him to do so. Holsey v. State, 24 Tex. Cr. R. 35, 5 S. W. 523; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; House v. State, 75 Tex. Cr. R. 341, 171 S. W. 206.

The court committed no error in not permitting Mrs. Beard to testify that the deceased, in passing her house the morning before he was killed, passed along near her house, and did not speak to her or raise his head, and was looking down toward the ground, and appeared to be in rather a solemn mood. This testimony had no bearing whatever upon the case, and had no connection with the killing.

In preliminarily stating the case to the jury, the court in one sentence told the jury:

“In this case the defendants being jointly indicted, both may be convicted of murder, or one may be convicted and the other acquitted.”

This sentence literally followed a special charge which appellants requested. Besides, it could have caused no injury to appellants, or either of them, in view of the whole charge of the court, which of course must be looked to when any given sentence or paragraph is attacked.

The testimony called for a charge on the law of principals. The judge, in preparing his original main charge, embodied a charge on that subject. After preparing it, he gave it to appellants’ attorneys for examination, etc.,', under the statute. They thereupon objected to his whole charge on that subject, and in lieu and instead of the court’s charge they asked a charge on the subject. The court then told them that he would take out of his charge what he had given on the subject and give their charge literally, as asked by them, instead, and he undertook to do this. He did give their charge in full just as asked. By some mishap, in undertaking to take out his charge on the subject, only a portion of it was taken out. The portion not taken out was general as to who were principals under the law of principals. Appellants in no way called his attention at the time to the fact that only a portion of his charge had been taken out, and his attention was not called thereto until the appellants made their motion for a new trial. All this is made clear by appellants’ bill and the court’s explanation and qualification thereof, as shown in the record. This presents no reversible error under the circumstances stated. We cannot see how it would or did injure the defendants, or either of them.

Appellants made a motion for a change of venue. It was properly contested by the state. Evidently the court must have heard testimony on it, but what testimony he heard! is in no way disclosed by this record. The legal presumption is that the court’s action on this point was clearly right.

No other question is presented for review.

The judgment is affirmed. 
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