
    HUGHES v. STATE.
    (No. 7055.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.
    Rehearing Denied Nov. 29, 1922.)
    1. Criminal law <§=>l166'/2(8) — Errors in overruling challenges to veniremen not grounds for reversal, unless objectionable jurors sat in trial.
    Before an appellate court will reverse a case for apparent errors in overruling challenges for cause to veniremen, it must be shown that objectionable jurors sat in the trial.
    2. Homicide <§=>203(3) — Statements of one mortally wounded held properly admitted as dying declarations.
    Statements of one made after being mortally wounded held admissible and not subject to the objection that they were not properly predicated upon the speaker’s anticipation of death, where they were either made or repeated after the doctor had told injured he would die.
    3. Homicide <§¿=338(2) — Admission of irrelevant testimony held not reversible error.
    In a prosecution for murder, the admission of testimony that deceased had a few days previously received a telegram which had been taken from his person by the murderer and later discarded, and testimony of one who saw1 it so discarded and recovered it, and testimony of the sender, held not reversible error, though irrelevant; not every error in the admission of immaterial testimony constituting grounds for reversal.
    4. Witnesses <§=>337(3) — Accused by taking witness stand puts his character for truth and veracity in issue.
    When one on trial for crime voluntarily takes the witness stand he puts in issue his character for truth and veracity.
    5. Criminal law <§=3463 — Opinion testimony of the nature of wounds on deceased’s hands in murder prosecution held not error.
    Where in a prosecution for murder there was testimony that deceased’s hands were badly lacerated and that some of the fingers were mashed and broken, held, that the sheriff’s opinion testimony that such wounds were not such as could have been caused by deceased striking a man, was not reversible error.
    6. Criminal law <§=>683(1) — Testimony in murder prosecution of wounds on deceased’s body held admissible in rebuttal.
    Testimony in a prosecution for murder as to the wounds on the head and body of deceased held admissible, as rebutting the defense that accused acted in self-defense to repel an attack of deceased who simply used his hands.
    7. Criminal law <§=>722(3) — Reference to ac- . cused in argument of counsel as ‘‘hardened criminal” held not error.
    Reference to accused in argument of private prosecuting attorney as a “hardened criminal” held not reversible error, where the ‘undisputed facts seemed to justify that appellation.
    8. Criminal law <§=>1037(2), 1119(4) — Reference to special prosecuting attorney as representative of American Legion held not reviewable in absence of further showing and request to instruct jury.
    Reference in argument to a private prosecuting attorney as a representative of the American Legion, which might tend to prejudice the jury in his favor, held insufficient on appeal to permit appraisement, in the absence of showing as to what preceded and followed the remark and where there was no request that the jury be instructed not to consider it.
    9. Indictment and information <§=>79 — Spelling or typographical errors will not vitiate indictment.
    ■ Misspelling of word malice, “malace,” and failure to properly space words on typewriter are not such errors as will invalidate an indictment, unless they go to the extent of mutilating same so as to affect its meaning or render it probable that accused was misled.
    On Motion for Rehearing.
    10. Criminal law <§=>I 128(4) — Ex parte afiir davits cannot be considered when first filed on appeal.
    Ex parte affidavits filed originally in ihe Supreme Court cannot be considered, since the appellate jurisdiction is limited to a review of questions raised below and properly brought up on appeal.
    
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Brewster County; Joseph Jones, Judge.
    H. I-Xughes was convicted of murder, and he appeals.
    Affirmed.
    A M. Turney, of Alpine, for appellant.
    B. G. Storey, Asst. Atty. Gen., for the State.
   IjATTIMOBE, J.

Appellant was convicted in the district court of Brewster county of murder, and his punishment fixed at death.

From the facts, it appears that appellant and deceased were traveling in a stock car together. They were seen together near the train in the railroad yards at Sanderson, the county seat of the county east of Brewster county in which the prosecution was had. This was about 1:30 o’clock the afternoon preceding the alleged homicide that night. About 4:30 of the same day the two men were seen at supper at Marathon, a station between Sanderson and Alpine, the county seat of Brewster county. Deceased paid for the supper. When the train reached Alpine, the cries of deceased for help were heard and a search of the stock car revealed his body near a window at the end of the stock car, there being evidence that his body had been dragged from a point near the center of said car, and he was shot and badly beaten and bruised. The bullet entered the body from near the spine, between the seventh and eighth ribs, and ranged upward into the liver and lungs, and caused the death of deceased that same night. There were upon his body a number of bad cuts and bruises, and the fingers of one hand were mashed and the bones broken.

Appellant was not in the car when it reached Alpine, but was arrested later that night at a little place called Toronto, six or seven miles from Alpine. When arrested, he was found in possession of a watch, chain, book, and other articles which were identi-fled as property of deceased. On the trial appellant admitted that he had shot and beaten deceased at the time in question, and had taken from him property. His explanation of this situation was that deceased made an abusive remark about the mother of appellant, and that they began 'to fight, and that during the fight appellant drew his pistol and shot deceased, and that he later in the struggle beat him over the head with the pistol, and that before he left the ear he put a bandanna handkerchief around the mouth of deceased and took from him his watch, chain, etc.

Appellant has a bill of exceptions to the overruling of his challenge to certain jurors, based upon the ground that they had such opinions as disqualified them. The trial court appends a statement to said bill to the effect that none of said jurors sat-upon the jury. It is not shown in the bill or otherwise in the record that any objectionable juror was forced upon appellant, or that he had any objection to any of the men who composed the jury, or that any objection was made by him to any of the men who composed same. In sections 542 and 543 of his Annotated Penal Code, Mr. Branch cites numerous decisions of this court sustaining the general proposition that, before this court would reverse a case for apparent errors in overruling challenges for cause to veniremen, it must be shown that objectionable jurors sat in the trial.

Appellant has six bills of exception complaining of the admission of various parts of 'the dying declaration of deceased, the same objection appearing in each bill, which objection is as follows:

“Because the state had not laid a proper predicate for the introduction of the dying declaration of deceased; that the state had never shown that the deceased was conscious of impending death; that deceased had never stated or realized that he was going to die when the alleged statements were made; that said evidence was hearsay, immaterial and served no proper purpose in this case; that some of said statements were made in answer to questions propounded to him by the various persons present before he had made said statements.”

Without discussing the failure of each of said bills to set out sufficient facts to make apparent the errors severally complained of, it being our custom not to enforce rigidly the rules in cases where the death penalty is inflicted, we have examined the statement of facts to ascertain the sufficiency of the predicate laid for these statements, and as to the materiality of the testimony contained therein and also the voluntary character of such statements, and we have concluded that the predicate laid was sufficient and that the testimony was material, and that no questions were asked the deceased leading to any answers which were suggested thereby. The physician, who was called to examine deceased the night of the homicide, testified that after examining him he told him that he was going to die, and it is in testimony that other parties' beside the physician made to him substantially the same statement. Some of the statements objected to had been made before the doctor arrived, but it was shown by the witnesses that afterward • the same facts were repeated by deceased. Without discussing in detail the several statements referred to in said bills of exception, they cover generally the statements of the deceased that he and appellant had fallen in with each other and had traveled together for several days arid were on their way west on said freight train, and that he had furnished money to feed appellant, and that as they came toward Alpine on the train that night, sitting on the sanded floor of the stock car, some one shot him and then heat him over the head and took from him -his money and his other property. Deceased also said that “it was hell to feed a man and then have him shoot you in the backfor $20.” Deceased gave a description of his companion, but did not seem to know his name. We find nothing in the -statements of deceased supporting any objection made thereto, and have concluded there was no error in the admission of each and all of them.

It was shown that a few days prior to the alleged homicide a telegram was sent to deceased at New Orleans concerning certain moneys. Appellant admitted getting a telegram from the body of deceased after the assault in the stock car and that he threw said telegram away at the house of a Mexican to which he went that night after leaving Alpine. There was no. error in the admission of the testimony of said Mexican to'the effect that he saw appellant throw said telegram away, nor do we observe any error in the admission in evidence of said telegram, which was found by • said Mexican and turned over to the officers. Nor was the objection sound which was made to the testimony of Miss Oasis, who said that she sent from Austin, Tex., a telegram to deceased at New Orleans regarding some money, and which was identical or similar to the one thrown away by appellant and found by the Mexican on the night of the killing. Nor do we find any error in' allowing Miss Oasis to state that she heard nothing from deceased after sending the telegram in question till she heard of his death about January 26, 1922, and that she saw his remains in Austin, Tex., on January 27th of said year.

Miss Oasis was asked in reference to the use made of the funds sent by her to deceased. An objection was made to this, and the witness stated that she knew what, he did with the money, and that he used it in paying the expense of obtaining a patent for an invention. We are of opinion that this evidence was not material, .but after careful consideration thereof we can find in it nothing capable of any possible harm to appellant. Not every error in the admission of immaterial evidence is Reversible. Saddler v. State, 20 Tex. App. 195; Jinks v. State, 35 Tex. Cr. R. 365, 33 S. W. 868; Shaw v. State, 39 Tex. Cr. R. 161, 45 S. W. 597; Cole v. State, 48 Tex. Cr. R. 443, 88 S. W. 341.

We think that when one on trial for crime voluntarily takes the witness stand- in his own behalf he thus puts in- issue his character for truth and veracity. While appellant was on the witness stand in the instant case he was asked relative to certain pa-pérs found on his person. The only objection-made thereto was that appellant had not put his character in issue. His character being in issue, the objection was without merit.

A bill of exceptions complains that the sheriff, after testifying that he saw wounds on the hand of deceased, was allowed to state that they were not such wounds as could have been caused by deceased striking a man. .The officer had testified that, the hand of deceased was badly lacerated, and the third finger mashed and the bones thereof broken. The facts having been stated, and being fully before the jury, we do not think the giving of said opinion such erroneous action as would in any event call for reversal at our hands.

Objections made to the testimony of the sheriff in describing the wounds found by him on the body of deceased, the grounds of which were that such testimony was not properly in rebuttal, would not be well taken. Appellant had been on the witness stand and had attempted to describe the fight in which he said deceased met his death. Even if this court was inclined to more rigid rules regarding the order of introduction of testimony, which it is not, this being left largely to the discretion of the trial courts, still we could not say that the enumeration and description of the wounds on the head and body of deceased would not serve to rebut the testimony of the accused, who claimed to have acted in self-defense against an assault on him by the deceased, who simply used his hands to fight with.

It is shown that at some place in his argument the private prosecuting lawyer referred to appellant as a hardened criminal, and at another time stated to the jury they should give the death penalty to that murderer. The record reflects the fact that in his youth appellant had been sent to an industrial or reform school and there kept for a period. The almost undisputed facts in this record are such that it is difficult for one to read them without concluding that the perpetrator of the crime is guilty of murder and that he must have had a heart so fatally bent on mischief as to justify the appellation of a hardened- criminal.

We are unable to appraise the bill of exceptions complaining of the reference in argument to the appearance of private counsel as the representative of the American Region. What preceded or elicited safe explanation is. not shown. Whether it was called out by some remark of appellant or his counsel does not appear. No effort was made to have the jury instructed not to consider said remark. The court in his qualification to the bill of exceptions says there was nothing to show that any ex-service men were on the jury. Where private prosecution appears, it is frequently the effort of the defense to elicit facts tending to reflect animus in the prosecution. Before we would be justified in sustaining the objection contained in this bill more facts would have to be made to appear and additional light given tiie mating of the remark in question.

Complaint is made in the motion in arrest of judgment that the word malice did not appear in the indictment but the word “malace” did appear. Errors in spelling will not vitiate an indictment unless they go to the extent of so mutilating same as to affect its meaning or to render it probable that the ^accused was misled in some way. Part of said motion in arrest of judgment was directed at what is claimed by appellant to have been an allegation that the name of deceased was “Rogersby.” An inspection of the indictment shows that it charges “did then and there unlawfully and with malace aforethought kill O. Rogersby then and there shooting him the said C. Rogers with a gun.” It is very evident that the pleader omitted to properly space his words in drafting his indictment, and that his intent was to say, “did then and there unlawfully and with malice aforethought -kill C. Rogers by then and there shooting him the said C. Rogers with a gun.” We do not consider this matter at all serious.

We have not been disposed to be captious regarding the manner or method of raising the various objections and errors complained of. Appellant was given the death penalty, and we have gone though the record in his case giving to him the benefit of our careful consideration to each point made in his behalf, but, finding no reversible error in the record, an affirmance is .ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant has attached to his motion for rehearing affidavits to the effect that some of the jurors were members of the Alpine Post of the American Legion, and that other jurors had relatives who were members thereof. It is desired that such affidavits be considered in connection with certain alleged harmful argument of the special prosecutor reverted to in our opinion. We are precluded from consideration of ex parte affidavits filed originally in this court, but are confined to reviewing questions which are raised in the lower tribunal, and properly brought forward in the record. Only by observing this rule can we perform the functions of an appellate court. All other matters urged in the motion received our most careful attention upon original consideration, by reason of the severe penalty inflicted. We are confirmed in our opinion that nothing in the record will justify us in disturbing the judgment.

The motion for rehearing is overruled.  