
    HART v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1.Indictment and Information (§ 79)— Mistake in Spelling.
    An indictment, averring that accused did go into a public place, to wit, a public “stree” in the town,, and used boisterous language calculated to disturb the peace, is not defective because of omission of the last “t” in “street”; it being apparent that he could not have been misled.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 79.]
    2. Criminal Law (§ 1091) — Appeal—Bill of Exceptions.
    A bill of exceptions complaining of the admission of testimony is too defective for consideration, where it does not give the surrounding circumstances, so that the appellate court can tell whether the testimony was defective.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]
    3. Criminal Law (§ 364) — Evidence—Res GESTAS;
    In a prosecution against a town marshal for disturbing the peace by loud language, evidence was not restricted to the language used; but evidence as to the surrounding circumstances is admissible as part of the res geste.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    Appeal from Hall County Court f Jno. D. Bird, Judge.
    T. A. Hart was convicted of disturbing the peace, and he appeals.
    Affirmed.
    J. M. Elliott and A. S. Moss, both of Memphis, for appellant. 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, J.

Appellant was indicted for disturbing the peace, in that, on May 18, 1912, he “did then and there unlawfully go into and near a public place, to wit, a public stree in the town of Memphis, Hall county, Texas, and did then and there unlawfully and willfully use loud and vociferous language in a manner calculated to disturb the inhabitants of said public place.” He waived a jury and submitted his ease to the county judge, who fined him $5.

He made a motion in arrest of judgment, claiming that the indictment was fatally defective, in that the letter “t” was left off in the spelling of “street” as copied above. Taking the whole indictment, it is perfectly clear that the public place where the offense is charged to have been committed was on one of the streets of the town of Memphis. No one, nor appellant, could possibly be misled by the leaying off of the “t” above specified. The court did not err in not sustaining appellant’s motion in arrest of judgment. Bailey v. State, 63 Tex. Cr. R. 586, 141 S. W. 224; Compton v. State, 148 S. W. 581; Ferrell v. State, 152 S. W. 901.

The testimony from both sides shows: That trouble had arisen between appellant, who was the marshal of the town of Memphis, and the complaining witness, W. L. McCormick, and that ill feeling existed between these parties at the time (May 18, 1912) the offense was charged. That said McCormick, with some other witnesses, was standing on the sidewalk on one of the streets in the town in front of a barber shop. Appellant went along this sidewalk, passing these parties a few steps. He then stopped, turned around, and, after looking at McCormick a few moments, motioned him away from the others with one hand and at the time placed his other hand at or on his pistol. This frightened McCormick, and fearing an attack by appellant he immediately ran into the barber shop, appellant following him, hollowing or calling to him to stop; and after getting into the barber shop he continued to demand that McCormick stop, and talked in a loud, excited voice and showed was mad. It was on this occasion that he is charged and shown by the testimony to have used loud and vociferous language in a manner calculated to disturb the peace.

Appellant has several bills of exceptions to the testimony of McCormick and other witnesses, who were present and saw and heard what occurred at the time, detailing what was said and done by appellant and McCormick at this particular time and on this particular occasion. As a sample of one of these bills, we give the substance of his second, which is: While the witness W. Is. McCormick was on the stand, and on his direct examination by the state, said witness was permitted, over the objection of the defendant, to testify to the following facts, to wit: “And defendant came back towards me, and motioned with his hand at me for me to step out away from some other boys that were with me.” This testimony was admitted over appellant’s objections, on the ground that it was irrelevant and immaterial and failed to throw any light upon the offense charged in the indictment, in that said indictment charged the defendant with using loud and vociferous language, and that said waive of the hand could not be used as evidence of the force or manner of the language used, and that it was prejudicial to his rights. It will be noted by this that the bill —and each of the others is as fatally defective — does not give the circumstances and surroundings and status of the case, so that from the bill this court can tell whether this testimony was improper.

This testimony and all of the other shown toy said bill, objected to, is a necessary part of the circumstances and surroundings, acts, and sayings of appellant and said McCormick at the time, and is a necessary part of the transaction itself, and was all admissible, even if the bills presented it in such way as to require the court to pass upon it. We take it, from appellant’s objections and his bills, that his idea was that the state would be restricted to testimony solely of the language used by appellant on the occasion, and whether or not it was loud and vociferous, without in any way telling how and why and the way the matter came up, and what was said and done on the occasion. This is incorrect. Judge White, in his Annotated Penal Code, § 1236, discusses this subject fully and cites the authorities. And he lays down this correct proposition: “The ‘res gestae,’ so called, are the facts and circumstances immediately hovering around and directly connected with the transaction occurring at the time and place of the main fact. All which was said or done, or that which occurred, at the time of the offense (homicide) tending in the slightest degree to explain the transaction or conduct or motives of the parties is admissible.” Again he says: “Whatever is said by any of the parties to a transaction at the time of the transaction is a part of the transaction itself, and is admissible in evidence as res gestae.” It is unnecessary to take up and discuss each of appellant’s bills separately. They are all along the same line. All of said testimony was admissible.

No other point is raised requiring notice or discussion.

The evidence by several of the witnesses shows that on this occasion appellant talked very loudly, and that he was excited and mad. The evidence is sufficient to sustain the judgment of conviction.

The judgment Is affirmed.  