
    HENSLEY v. STATE.
    (No. 9285.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Denied June 24,1925.)
    1. Assault and battery <&wkey;>83 — Testimony that defendant spent night with prosecutrix’s husband after assault held immaterial.
    Excluded testimony that, after aggravated assault charged, defendant spent night with prosecutrix’s husband, held immaterial.
    2. Indictment and information <®=e!80 — Indictment and prosecutrix’s testimony held not variance as to her name as matter of law.
    Indictment charging assault on “Mrs. Joe Conner,” and her testimony on cross-examination that her Christian name was “Susue,” held not variance, as matter of law, in view of Code Cr. Proc. 1911, art. 456.
    3. Criminal law &wkey;oll20(3) — Exclusion'of evidence, not set out in bills of exception, not considered. .
    Appellate court cannot determine relevancy, materiality, or competency of excluded evidence not set out in bills of exceptions, as such omission cannot be supplied by inference.
    4.Assault and battery &wkey;>86 — Testimony that prosecutrix took money belonging to defendant from her husband held inadmissible.
    In prosecution for aggravated assault, testimony that prosecutrix’s husband was seen in possession of money, half of which he stated belonged to defendant, _and that prosecutrix took nearly all of it from him, held inadmissible, as not justifying assault, when prosecutrix refused to give money to defendant.
    Appeal from Dallas County Court at Law; Wiley A. Bell,' Judge.
    W. C. Hensley was convicted of aggravated assault, and appeals.
    Affirmed.
    W. C. Hensley, of Dallas, for appellant. Shelby S. Cox, Cr. Dist. Atty., and G. G. Pierson, Asst. Cr. Dist. Atty., both of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,' for the State.
   MORROW, P. J.

The offense is aggravated assault; punishment fixed at a fine of $250.

. The name of the injured party, as set out in the information, is Mrs. Joe Conner. The fact that the appellant, an adult male, made an assault upon the said Mrs. Joe Conner, a female, is shown without controversy, and that he struck her a number of blows with his fist is not disputed. Appellant testified, in his own behalf, that he and the husband of Mrs. Conner had had a cotton transaction in which they were partners, and in which there had been a profit of a sum of money, one-half of which belonged to the appellant; that Mrs. Conner had possession of the money, and refused to accede to his demand that his part of it be delivered; and that he became excited and made the assault.

The' exclusion of the proffered testimony that, after the assault, the appellant spent the night with the husband of the pros-ecutrix, is not shown to have been erroneous. Its materiality is not perceived.

In the indictment it is charged that the assault was made upon Mrs. Joe Conner. The prosecutrix testified that her name was Mrs. Joe Conner. Other witnesses described her so. She was the wife of Joe Conner, and on cross-examination she said that her Christian name was Susue. A request that the jury be instructed to acquit the appellant upon the ground of variance was refused. Upon the record before us, we are of the opinion that, in refusing to give the charge" mentioned, the court was not in error. In the statute upon the subject it is said:

“When a person is known by two or more names, it shall be sufficient to state either name.” C. C. P. art. 456.

There are authorities to the effect that, when the issue is raised by the evidence, it is proper to call upon the jury to determine whether tlie person named in' the indictment is known by the name given' therein. See Bell v. State, 25 Tex. 574; Davis v. State (Tex. App.) 11 S. W. 647. In the present case, there was no such request made. The appellant called upon the court to hold that, as a matter of law, there was a variance. The precedents, as we understand them, are against this contention. See Stokes v. State, 46 Tex. Cr. R. 357, 81 S. W. 1213; Shores v. State, 68 Tex. Cr. R. 44, 150 S. W. 776.

,Bills Nos. 4 and 5 are incomplete, in their failure to set out the specific testimony which the appellant expected to elicit in answer to the question propounded. Unless the bill of exceptions makes known the evidence which was excluded, this court cannot determine its relevancy, materiality, or incompetency. Omissions of this kind are not to he supplied by inference. Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847, and decisions collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 542, noté 29.

Bill of exceptions No. 6 reflects the complaint of the exclusion of some proffered testimony from'the witness Dove to the effect that, while in his' office, Joe Conner was seen in possession of a sum of money, and stated that half of it belonged to the appellant; that Conner was under the influence of intoxicants, and that his wife took from him all of the money, except a small amount. The court, in qualifying the bill, states that the testimony embraced in the bill was given by Love, and the statement of facts verifies this statement. The evidence shows that appellant, on the morning after the occurrence in Love’s office, went to the home of the pros-ecutrix and attacked her in a violent manner, struck her blows, and kicked her, and used vile and obscene language, accompanied by threats to kill her if she did not give him the money. In our opinion, nothing is revealed in the testimony proffered in the bill which would justify the assault. The record shows that the evidence was not excluded, and for that additional reason the bill is without merit.

Failing to find any errors in the record, the judgment is affirmed. 
      <&=jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     