
    WALL v. STATE.
    (No. 11684.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Reinstated and Affirmed March 14, 1928. Rehearing Denied June 20, 1928.
    1. Bail <&wkey;65 — Recognizance held insufficient for failure to show appellant’s conviction (Code Cr. Proc. 1925> art. 817).
    Recognizance, stating appellant “stands charged with the offense of assault with intent to murder,” held insufficient under Code Cr. Proc. 1925, art. 817, for failure to show conviction.
    2. Bail &wkey;>64 — -Where recognizance is insufficient, appellate court is without jurisdiction (Code Cr. Proc. 1925, art. 817).
    Where recognizance is insufficient under Code Or. Proc. 1925, art. 817, appellate court is without jurisdiction.
    On the Merits.
    3. Homicide i&wkey;-l63(2) — Statute authorizing proof of general character of deceased held applicable in prosecution for assault with intent to murder (Pen. Code 1925, art. 1258).
    Pen. Code 19215, art. 1258, providing that, where proof of threats have been made, it shall be competent to introduce evidence of the general character of deceased is not', because of the word “deceased,” limited in its application to homicide eases, but applies to prosecution for assault with intent to murder.
    4. Criminal law <&wkey;364(3) — Defendant’s statements at home after offense charged held not admissible as res geste. :
    In prosecution for assault with intent to murder, evidence of defendant’s statements to his brother at home after the offense charged held not admissible as res gestae. -i
    
    5. Criminal law &wkey;>363 — Whether evidence is in . fact res geste must be determined from facts of particular case.
    The facts of each particular case must be looked to in determining whether a particular statement is in fact res gestae.
    6. Criminal law &wkey;>364(3) — Defendant’s statement, disconnected from main transaction as to how it occurred, is not ordinarily admissible as part of res gestee.
    Generally, where the statement of a defendant is disconnected from the main transaction and appears to be a statement or relation as to how it occurred, there being a break or let-down in the continuity of the transaction, the statement is not admissible as part of res geste.
    7. Criminal law <&wkey;338 (7) — Evidence defendant suffered from tuberculosis and would not live long in penitentiary held properly excluded in prosecution for assault with intent to murder.
    In prosecution for assault with intent to commit murder, evidence that defendant was suffering from tuberculosis and could not live long in the penitentiary if sent there held properly excluded. •
    8. Criminal law &wkey;»1090(I3) — Argument of county attorney, to be reviewable, must be preserved by bill of exceptions.
    Argument of county attorney, not preserved by bill of exceptions, is not reviewable.
    On Motion for Rehearing.
    9. Criminal law <&wkey;-H33 — Appellate court held entitled to consider substitute bill of exception on rehearing without setting aside prior judgment of affirmance.
    - Where bill of exception complaining of argument of counsel was omitted from original transcript because lost, but afterward filed as a substitute bill, held court could consider such substitute bill on motion for rehearing without setting aside judgment of affirmance previously entered.
    10. Criminal law <&wkey;l037(2) — Argument affecting defendant’s failure to produce character witnesses held invited and not reversible, absent request for instruction.
    Where defendant’s attorney argued that defendant did not look like a criminal or desperado, prosecutor’s argument that state was not permitted to prove the kind of a man that defendant was, and that defendant should have produced character witnesses, held error, if any, if such argument was invited, and such as could be cured by instruction, and hence not reversible, in absence of request for instruction concerning it.
    Commissioners’ Decision.
    Appeal from District Court, Collin County; F. E. Wilcox, Judge.
    Lofton Wall was convicted of assault with intent to murder, and he appeals.
    Appeal dismissed for want of jurisdiction, and, after correction of recognizance, heard on merits, and judgment affirmed.
    G. R. Smith, Smith & Abernathy, and John Doyle, all of McKinney, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder; the punishment confinement in the penitentiary for four years.

The recognizance recites that appellant “stands charged with the offense of assault ' with intent to murder,” but fails to show that appellant has been convicted. It is necessary that the recognizance or appeal bond show that appellant has been convicted. Article 817, C. C. P.; Wilmering v. State, 100 Tex. Cr. R. 169, 272 S. W. 463. Appellant being enlarged under a defective recognizance, this court is without jurisdiction. Rhea v. State, 101 Tex. Cr. R. 298, 275 S. W. 1021.

The appeal is dismissed.

PER CURIAM. The foregoing opinion of, the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the state.

On the Merits

MAETIN, J.

The record has been corrected so as to show a proper recognizance, and the appeal is therefore reinstated, and the case will be considered on its merits.

Appellant and the assaulted party were brothers-in-law, between whom there existed an enmity. The appellant introduced communicated threats purported to have been made by the assaulted party against him previous to the difficulty. Thereupon the state introduced several witnesses who testified to the assaulted party’s good reputation as a quiet, peaceful, and inoffensive man. Objection was made to this testimony, for the reason, as we understand it, that article 1258 of the Penal Code applies to murder cases and not to assault to murder cases. Part of this article reads:

“In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased.”

It is claimed that, since the assaulted party was living, and not “deceased,” the article would not apply. This exact question was before this court in the case of Smith v. State, 55 Tex. Cr. R. 628, 118 S. W. 145, in which the court said:

“We think, after all, the statute is but declaratory of a general rule and to limit it to cases of actual death of the person assaulted, would be to nullify its salutary provisions.”

See, also, Bingham v. State, 6 Tex. App. 169. The case of Jupe v. State, 86 Tex. Cr. R. 573, 217 S. W. 1041, relied on by appellant, is clearly distinguishable from the instant case, and merely announces the well-known rule that “the good reputation of the prosecutor is not admissible in evidence as an original proposition.” Of course, where no attack had been made on the character of the assaulted party and no threats had been introduced, this would be true.

It was shown by bill of exception that, after appellant had shot prosecuting witness, he went to his home, a distance of something like a half mile, and - there met his brother and said, “Come here,” and “took me in the north room, and he said, T have had trouble with Leviand I said, ‘You have again?’ and he said, ‘Yes; I have shot at him;’ and I said, ‘How did you come to do that?’ ” Whereupon appellant related all of the details of the trouble, which was excluded by the court. It is claimed this was res gestae. The facts of each case must guide this court in determining whether a statement was in fact res gestae. There is no fixed rule in Texas to which we can look for guidance. It may be stated generally that, where the statement of a defendant is disconnected from the main transaction and appears to be a statement or relation of how it occurred, there being a break or let-down in the continuity of the transaction and the statement lacks the character of instinctiveness it is not admissible as part of the res gesta». Pharr v. State, 10 Tex. App. 485; Branch’s P. C., § 84. The statement on its face lacks that instinctive and spontaneous character which is held to be an indispensable prerequisite to its admissibility, and in our opinion the court was correct in excluding same.

By a physician appellant offered to prove that he was at the time of the trial suffering from tuberculosis and could not live long in the penitentiary, if sent there. We are unaware of any authority which makes the presence of a disease of itself a defense to a crime. There might be issues in the trial that would make this testimony admissible, but none of them appear to be present in the instant case.

Complaint is made of the argument of the county attorney, but same has not been preserved by bill of exception, and nothing is therefore presented for review.

Finding no error in the record, the judgment is affirmed.

PEE CUEIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Eehearing.

LATTIMOEE, J.

We regret that we overlooked a motion made and filed with the clerk of this court by appellant calling attention to the fact that in making up the transcript originally herein, a bill of exceptions taken to the argument of the county attorney was omitted, because lost, discovering which fact appellant made a motion in the trial court to substitute said lost bill of exceptions, which motion was granted and an order entered by the trial court directing the filing of a substitute bill; the motion of appellant filed in this court being to have said substitute bill incorporated in the transcript before us by writ of certiorari or in any way deemed necessary. The motion of appellant being accompanied by certified copy of the bill of exceptions so ordered substituted, we do not deem it necessary to the orderly disposition of this case that we set aside the-judgment of affirmance and make an order that the record be corrected by bringing into same the said substituted bill of exceptions. We deem it entirely within the power of the court, and also proper, that we now consider said bill of exceptions in connection with this motion for rehearing, and it is accordingly done.

From said bill it appears that the county attorney, in his closing argument, alluded to the fact that, while appellant’s attorney was arguing the case to the jury, he stated that appellant did not have the look of a criminal or desperado, and tliat he was of a retiring disposition. Said bill further shows that the county attorney in that connection stated that the law did not give the state the right to prove that kind of a man defendant was, but did give that right to the defendant, and why did not the defendant bring his neighbors here and prove that he was a peaceable and quiet man, rather than to leave it to Mr. Smith’s argument; that appellant’s neighbors would know better about it than Mr. Smith. We find in the bill of exceptions and in the record no request for an instruction that the jury not consider such argument on the part of the state’s attorney. We do not regard it of such harmful character as that its effect, if any at all, could not be removed by such charge. In fact we are inclined to believe the argument invited by the remarks of appellant’s attorney, and that there was no transgression of the rules in making the reply which the state’s attorney made. Patterson v. State, 87 Tex. Cr. R. 95, 221 S. W. 596; Terry v. State, 101 Tex. Cr. R. 267, 275 S. W. 837.

We have tried to discover, if there be any authority supporting appellant’s contention in regard to the admission of the testimony of Dr. Largent, but have found none,' We do not think the rejection of the testimony of said doctor in any way violative of the constitutional inhibition against cruel and excessive punishments.

Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled. 
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