
    LARA v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§ 363) — Evidence—Res Gestas.
    Where an officer claimed that be was called to a saloon and notified of pending trouble, and that some one had a knife; that he discovered the knife on accused’s person and demanded it; that accused refused to surrender it, and a difficulty arose, in which he was cut on the hand before he obtained the knife; that he then arrested four persons and started off with them, when some one called to him to watch out, and he was then assaulted from the rear; and that a person who came to his rescue was killed — he was properly permitted to testify on accused’s trial for assault to murder as to the details of both difficulties, the participants therein, the wounds inflicted on him, and that such person who came to his rescue was killed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    2. Criminal Law (§ 338) — Evidence—Bes Inter Alios Acta.
    On a trial for assault to murder, evidence that another party had been convicted of murdering a person who came to the prosecuting witness’s rescue in the difficulty in which the alleged assault occurred, was improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.*]
    3. Criminal Law (§ 338) — Evidence—Res Inter Alios Acta.
    On a trial for assault to murder, evidence that other parties had been indicted for their participation in the difficulty in which the alleged assault occurred, and such indictments themselves, were improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    4. Criminal Law (§ 338) — Evidence—Res Inter Alios Acta.
    On a trial for assault to murder, it was error to admit evidence that other parties indicted for their participation in.the same difficulty had forfeited their bonds, fled, and were refugees from justice, where accused had not attempted to flee, and was not shown to be responsible for the acts of such other parties subsequent to the difficulty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Homicide (§ 349) — Reversal—New Trial —Scope oe Inquiry.
    Where a conviction for aggravated assault under an indictment for assault to murder is reversed, assault to murder should not be submitted on the new trial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 726; Dee. Dig. § 349.]
    Appeal from District Court, Wilson Coun-. ty; F. G. Chambliss, Judge.
    Florencia Lara was convicted of aggravated assault, and be appeals.
    Reversed and remanded.
    J. E. Canfield, of Floresville, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted for making an assault on J. L. Allen with intent to murder him, be was convicted of aggravated assault, and bis punishment assessed at one year’s confinement in jail and a fine of 8300.

Mr. Allen was an officer, and be testified: That be was called to a saloon at Potb and notified of pending trouble, and that some one bad a knife. He searched several and failed to find any weapon. He says that appellant then approached, and invited him to take a drink, leaning up against him. He declined tbe drink, but felt a knife on appellant’s person, and demanded it. Appellant refused to surrender it, and a difficulty arose in which be was cut ón tbe band before be succeeded in getting the knife. He then arrested four Mexicans, and started off with them, and while at tbe back of tbe saloon, some one holloed to him to “Watch out,” when be was assaulted from tbe rear. He pulled bis pistol, but that in tbe mélée it was taken from him, and be was struck over tbe bead with it. Also some one struck bis right arm and broke it. That one Ludwig came to bis rescue and was killed.

Appellant testified lie had no knife on his person, but that Allen came to him and some five of his friends, who wére getting in the wagon to go home, and invited them to take a drink; that three of them did go in and take a glass of beer with Mr. Allen, and while they were drinking Ghaverrea passed by and stuck a knife in the waistband of his pants; that Mr. Allen at once grabbed the knife, and some one struck him from behind, and that he knew no more. It was permissible for Mr. Allen to testify as to all the details of the difficulty, or two difficulties, and as to who were participants therein; as to the wounds inflicted on him, and that Joe Ludwig was killed in the difficulty — that is, detail the entire transaction as it occurred from his viewpoint — and the bills of exception as to< this testimony present no error.

But it was not permissible for Mr. Allen to testify that Arrando had been indicted by the grand jury, tried, convicted of the murder of Mr. Ludwig, and sentenced to the penitentiary. Nor was it permissible for Mr. Allen to testify that the grand jury had investigated this difficulty and returned bills of indictment against Elberto Ghaverrea, Reyes Plores, Gregoria Corteñas, and others, charging them with assault to murder on him for their participation in this difficulty, and the court should not have admitted this testimony.

The court was also in error in permitting the bills of indictment against these others to be introduced in evidence. This was but getting before the trial jury the fact that the grand jury had accepted the state’s theory of the case, and indicted all those whom Mr. Allen said had been participants in the affray, and they could have been introduced for no purpose, except to support and bolster up the state’s theory. This investigation of the grand jury and return of the indictments were certainly after the difficulty, would shed no light on the difficulty, and were getting before the jury the opinion of the grand jury as to the merits of the disputed issues. The grand jury may not have been informed as to the defendant’s theory of the case; the evidence of the witnesses who tended to support his defense may not have been before the grand jury. Often this is the case, and it was highly improper to have permitted these indictments against others to be introduced in evidence. They were not witnesses, and as it appears by these indictments, they could not have been witnesses for the defendant, and the state tendered none of them as witnesses. We have treated these bills jointly, and this relates to all the indictments introduced, and on another trial the objection to their introduction in evidence should be sustained.

By another bill it is shown that Mr. Wright was permitted to testify: “I am acquainted with Gregorio Corteñas, and know that he was indicted by the grand jury of the December term of the district court, 1911, in connection with an assault to murder J. L. Allen. I had him under arrest, but he gave bond and has not been under process to this court, nor has he been since the indictment was returned. I have a capias for his arrest, and have made diligent search for him, and have sent circulars all over the southwest part of the state. I do not know where he is. I do not know Jilberto Chaverrea, but I have had a capias as an officer for him since the grand jury of December, 1911, but have no idea where he is. He has not been in court in Wilson county to my knowledge.-’ These were two of the men shown to have been indicted as participating in the assault on Mr. Allen, and the fact that they fled, had forfeited their bonds — were refugees from justice — was not legitimate evidence against this defendant It was not sought to .be shown he had anything to do with their flight, and he could, in no sense, be held responsible for any of their acts after the difficulty was over. He, at least, had not fled, nor made any attempt to do so, but was in court contending he had made an assault of no character, but instead, that he had been assaulted and seriously wounded. While testimony as to what took place during the difftoulty, the acts and conduct of each participant, was admissible in evidence, yet the subsequent acts of any of the others, in which he did not participate, were not admissible against him, and the court erred in not excluding all such testimony.

There are other bills in the record presenting similar matters, but what has been said should make it clear what testimony is admissible and what should be excluded, without taking up each bill and discussing it. As before stated, the fact that Mr. Allen was called to the saloon, that he searched for a knife, and the acts and conduct of each and every one of the alleged participants in the difficulty until it was over, under this record, were properly admitted in evidence. But nothing subsequent thereto should have been admitted. It was error to show that Arrando had been tried and convicted; it was error to show that others had been indicted for assault to murder; it was error to show that some of them had fled; it was error to show that others had forfeited their bonds — in fact all these matters that took place after the difficulty was over will be excluded on another trial.

We need not discuss the alleged errors in the charge on assault to murder, as that grade of offense will not be presented on another trial; having been convicted of aggravated assault only, on another trial that issue should alone be presented. Besides, the entire charge is copied in one bill, and the assignments of errors in it are too general to bring anything before us for review.

Reversed and remanded.  