
    SELLERS et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 12, 1910.
    On Motion for Rehearing, Feb. 15, 1911.)
    1. CRIMINAL Law (§ 793) — Instructions — Joint Responsibility.
    Instructions authorizing conviction of assault with intent to murder if defendants committed certain acts were not erroneous as requiring a joint conviction or joint acquittal, where other instructions authorized separate or joint conviction or acquittal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1S5S, 1939; Dec. Dig. § 793.]
    2. Criminal Law (§ 761) — Instructions — Assumption as to Facts.
    An instruction that, if accused made the assault charged and his codefendant was present, etc., the codefendant was guilty, was not erroneous, as assuming that accused made an assault.
    [Ed. Note. — For other cases, see Criminal Law,1 Cent. Dig. §§ 1754-1764; Dec. Dig. § 761; Homicide, Cent. Dig. § 582.]
    3. Criminal Law (§ 784) — Instructions — Circumstantial Evidence.
    Where there was positive evidence of assault, it was unnecessary to instruct on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888; Dec. Dig. § 784.]
    4. Criminal Law (§§642,1152) — Interpreters —Qualifications—Judicial Discretion.
    In a trial for assault, it was within the judge’s sound discretion, which will not be disturbed, unless abused, to permit a complaining witness to serve as interpreter.
    [Ed. Note. — Fpr other cases, see Criminal Law, Cent, Dig. §§ 1455, 1598, 3053-3057; Dec. Dig. §§ 642, 1152.]
    5. Criminal Law (§ 1119) — Record—Sufficiency.
    An objection that an interpreter did not fairly interpret the testimony is insufficient, where it does not appear by the record whose testimony he interpreted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2931; Dec. Dig. § 1119.]
    6. Criminal Law (§ 939) — New Trial — Grounds — Newly Discovered Evidence.
    Accused is not entitled to a new trial for newly discovered testimony of witnesses who were with him the night of the difficulty, where slight diligence would have discovered the importance of their testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323;, Dec. Dig. § 939.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1035) — Appeal—Waiver of Objections.
    Objections to formation of the jury cannot be raised for the first time on appeal, especially where the record does not disclose the-matters complained of.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2636-2638; Dec. Dig. § 1035.]
    8. Criminal Law (§ 1139*) — Appeal—Papers-
    Re view able.
    The Court of Criminal Appeals cannot consider ex parte affidavits filed with appellant's brief in which new issues are sought to be made.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*]
    9. Homicide (§ 257*) — Assault with Intent
    to Murder — Evidence—Sufficiency.
    - Evidence held to sustain a conviction of assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.*]
    Appeal from District Court, Jefferson County; W. H. Pope, Judge.
    Sam -Sellers and Champ Mansfield were convicted of assault, and they appeal.
    Affirmed as to defendant Sellers, and reversed and remanded as to defendant Mansfield.
    B. E. Moore, for appellants. John A. Mob-ley, 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.
    
   RAMSEY, J.

This case comes to us in rather a singular condition. The appellants were jointly indicted charged with assault with intent to murder upon Alex Brown and John Orby, and the case throughout was submitted -as for an assault upon both the parties named. The statement of facts is in considerable confusion. We gather that there must have been another trial of probably one Prater, to which the witnesses frequently, refer. There is direct testimony that the appellant Sellers with a knife seriously cut and stabbed Brown, and before he did so that he said, “Let me kill that man,” and then struck him. This is deposed by one Petee Capo. Brown himself does not seem to have known just who did cut him. Mansfield is not identified by name by -any one as having been present. The testimony speaks of “a fellow with black mustache,” and again as “a tall fellow,” and -again “of that fellow in his shirt sleeves,'’ but nowhere, as we gather from the statement of facts, is there such identification of Mansfield or such 'connection shown -as we think would justify us in the state of the record in affirming the judgment as to him, and the judgment of conviction as to Mansfield will be reversed on the facts. The testimony of the witnesses, if believed, as to Sellers, is-sufficient to make out a case, and we will proceed to discuss the questions raised by the record as grounds for reversal.

1. The fourth ground of the motion is-that “the court erred in the following portion of his charge: ‘If from the evidence-you are satisfied beyond a reasonable doubt that the defendants Sam Sellers and Champ-Mansfield on or about the time charged in the indictment,’ etc. — because said charge did not authorize the jury to believe that •one or the other committed the assault, and •one or the other did not commit the assault, and made the conviction of both or the acquittal of both depend on what the jury might believe one of defendants did. And ■again in the same part of said charge the ■court gave the following: ‘That said assault was not made under the immediate influence ■of sudden passion produced by an adequate •cause, or not in defense of themselves’ — because the jury should have been told that one of defendants might have made the assault under the conditions named above while the other defendant might not have done so, and the jury should have been told as much in plain charge.” As to the first criticism of the court’s charge, if the paragraph referred to were read alone, there might be some merit in it, but in another paragraph the ■court charged the jury as follows: “You may find both of defendants guilty or you ■may acquit both, or you may convict one and acquit the other, and write your verdict in accordance with your finding.” Again, the court charged the jury as follows: “If the defendant Sam Sellers made the assault, but Chain]) Mansfield was present, and, knowing the unlawful purpose of the said Sellers, encouraged him by words, acts, or conduct in the commission of same (if he did commit it), then he would be principal in the crime, and the law would hold him guilty.” The last criticism of the charge complained of in the paragraph of the motion above quoted is also claimed to be erroneous, in that the jury should have been told that one of the defendants might have made the assault under the conditions named above, while the •other might not have done so. This criti•cism is answered in what we have said ■above.

2.Again, counsel complain of the following portion of the court’s charge: “If the defendant Sam Sellers made the assault, but •Champ Mansfield was present, and, knowing the unlawful purpose of the said Sellers, encouraged him by words, acts, or conduct in the commission of same (if he did commit it), then he would be a principal in the crime, and the law would hold him guilty.” This is •alleged to be erroneous because it assumed that Sam Sellers had made the assault, and because it was tantamount to telling the jury that Sellers made the assault, and should be convicted without regard to whether he made the assault with malice or to commit murder, or whether he made same when his mind at the time was inflamed, angered, and enraged with sudden resentment, and because there was no evidence that Mansfield ovas even present during the difficulty, and no evidence that he said anything, did anything, or that he knew an assault had or was about to be made, or that he knew the purpose of any assault by Sellers or any other person. Since the case is to be reversed in any event as to Mansfield, it is unnecessary to determine whether he could complain of this charge. The complaints of same in so far as they could affect the ease of Sellers are not well taken. It contains an express reservation of fact for the jury to find as to whether, in fact, Sellers did commit the assault, and in other portions of the court’s charge it was submitted as an issue of fact to be found by the jury as to whether, if guilty at all, he was guilty of assault with intent to murder or aggravated assault.

3. Again, it is complained that the court should have given a charge on circumstantial evidence. As to the appellant Sellers, there can be no merit in this contention, since one of the witnesses testified positively that he struck and wounded the witness Brown.

4. Again, a new trial was sought on the ground that Alex Brown, who pretended to interpret the testimony of the witnesses in the case, did not properly and fairly interpret the testimony, and that such interpretation was untrue, unjust, unfair, and prejudicial to defendants, and was incorrectly, purposely, and wrongfully interpreted; that Alex Brown is and was one of the alleged injured parties with whom appellants were charged with assaulting, and he does not understand or is he acquainted with any of the languages of any of the witnesses who testified against appellants except that of John Orby, the other alleged injured party. This motion is supported. by the affidavit of Brown in which he says in substance as follows: “All the witnesses who I interpreted for on the trials of Prater, Sellers, and Mansfield were Greeks I think, except John Orby, and I do not understand their language much. I did not understand them when they were testifying on the trials of the negroes except Orby’s much.” There was no objection on the trial to this witness acting as interpreter. Ordinarily we should think it bad policy to permit one occupying the position which Brown does in the case to act as an interpreter, and yet in the absence of any proof to the contrary, or any exception taken at the time, we must assume that the court below was either under the necessity of availing himself of the offices of Brown as interpreter, or possessed such clear and convincing proof of his reliability as to make it clear that he was not subject, on account of his relation to the case, to serious objection. This was a matter occurring during the trial, and a matter wisely confided to the discretion of the trial court, and a matter for which we ought not to reverse the case, unless, on the facts shown, in connection with such action, an abuse of this discretion was shown. It will be observed, further, that he says that all the witnesses for whom he interpreted on the trials of Prater, Sellers, and Mansfield were Greeks, except John Orby. Who the witnesses were for whom he interpreted in this ease the record does not show. An inspection of the statement of facts shows that in this case for the state there was adduced the testimony of Alex Brown and Pe-tee Capo, both of whom testified on direct and cross examination that Alex Brown had been called and further cross-examined by appellant, and that John Orby had begun his testimony before any interpreter was sworn at all, and that the state’s case closed with the testimony of John Orby, who is not shown by the affidavit tó have been a Greek, nor any claim made of any impropriety or failure in the interpretation of his evidence. The record does show that thereafter the appellant introduced Steve Girolomo, and it appears that his testimony was interpreted by Brown, but without objection on the part of appellant, but presumably at his suggestion. In this state of the record, and in the absence of any bill of exceptions, we do not feel that we would be authorized to reverse the judgment.

5. Finally, it is claimed that a new trial should be granted on account of newly discovered testimony, and affidavits of three witnesses are attached to the motion. These are Jennie Spates, Minnie Thomas, and A. J. Ezzell. An inspection of the affidavits of Minnie Thomas and Jennie Spates discloses that on the very night in question, and contemporaneous with the difficulty, they were in conversation with and in the presence of appellant Sellers, and in the nature of things he must have known of their presence on the scene of the difficulty, and the slightest diligence must have visited him with notice of the importance of their testimony. The testimony of Ezzell, who declined to sign an affidavit, but whose testimony was taken on motion for new trial, was not important, and throws but little light on the issue. The record is in great confusion, and we have had some difficulty in gathering from it the precise facts, but, as we understand it, after, a careful investigation, there seems to be no error in the record for which the judgment as to Sellers should be reversed.

It is therefore ordered that the judgment of conviction as to Sam Sellers be, and the same is hereby, in all things affirmed, and that the judgment of conviction as to the other appellant, Champ Mansfield, be, and the same is hereby, reversed and remanded for further proceedings in accordance with law.

On Motion for Rehearing.

HARPER, J.

At a former day of this term of court, in this case, an opinion was rendered affirming the judgment as to Sam .Sellers, and reversing and remanding the judgment as to Champ Mansfield. A motion for rehearing has been submitted on behalf of Sellers, in which appellant seeks to complain of the formation of the jury. No complaint was made in the court below at the time of the selection of the jury, nor in the motion for a new trial, and it is too late to raise this question on appeal, especially as the matters complained of do not appear in the record filed in this court. This court has always held that it cannot consider ex part© affidavits filed with the brief of the appellant, in which new issues are sought to be made in this court not made in the trial court. It is-not shown that appellant Sellers suffered any injury by reason of the matter complained of.. Appellant complains that the testimony is insufficient, and we have carefully read the-record. It appears there was a “free for all fight” at night in front of Girolomo’s saloon, and a witness swears that, while Brown and Prater were fighting, defendant Sellers cut Brown in the back. Brown and Prater, it appears, were both cut pretty bad. If' the jury believed this testimony, it authorized a conviction.

In regard to the newly discovered testimony, it is such testimony as the defendant must of necessity have known before the original trial, and, had he desired it, the witness was in the town. In addition, while the witnesses testify on the hearing of a motion for a new trial that defendant Sellers was in -a nearby house at the beginning of the difficulty, he left the house before the row was over, and they did not know where he went, leaving in plenty of time to have engaged in the fight and do the cutting as testified to by the state’s witness.

After carefully reviewing the record, we are of the opinion the motion for a rehearing should be overruled; and it is so ordered.  