
    NEEDHAM v. STATE.
    (No. 4552.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    1. Criminal Law @=>366(6)&emdash;Evidence&emdash;Ad-missibility as Res Gesms.
    On the trial for aggravated assault on defendant’s wife, evidence of her statements concerning the assault made within 10 or 15 minutes after the injuries were received, and while she was still bleeding from her wounds and trying to wash the flowing blood from her face, was admissible as res gestae.
    2. Criminal Law @=3730(15) &emdash; Improper Ar gument&emdash;Cure.
    The statement of the county attorney in his argument that it was impossible to find the best class of people as witnesses in criminal cases, because they were not the kind of people who saw or heard such things, and that this was why the state had to bring “him and his kind of cattle,” referring to defendant, his wife, son, and daughter-in-law, was not reversible error where the court promptly sustained an objection, instructed the jury to disregard such argument and not consider it for any purpose, and reprimanded the county attorney, telling him that such argument was improper and not permissible, and should not be indulged in.
    On Motion for Rehearing.
    3. Assault and Battery @=>92&emdash;Sueeicibn-cy oe Evidence&emdash;Aggravated Assault.
    On the trial of a man for assaulting his wife, the physical facts testified to, and the testimony of the wife in connection with her res gestse statements, held amply sufficient to support a conviction.
    Appeal from Williamson County Court; Richard Critz, Judge.
    Oscar Needham was convicted of aggravated assault and he appeals.
    Affirmed.
    Allison & Harty, of Georgetown, and Dan Moody, of Taylor, for appellant. E. B. Hem dricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault on his wife, and a fine of $25 and 30 days in jail assessed as his punishment.

The testimony as a whole clearly shows that on the date alleged appellant’s wife, Etta Needham, was sitting in the front of their restaurant crocheting. At the time, she, her son, Elma, and his wife, Fay Needham, were the only persons in the restaurant. Appellant then came in drunk or drinking. Mrs. Etta Needham swore she and he then “had a little trouble there that day.” The testimony, without question, further shows that, pri- or to this “little trouble” she and appellant had, she had no bruises and cuts on her person, and that her clothes were in no way torn. That after it was over, as sworn to by Mr. Allen, a disinterested witness, who then saw her, “she had a big swollen place on her arm, and her nose was swollen and scratched and bruised, and she had blood on her hands and clothing.” The whole evidence excludes the idea that any other than appellant produced these injuries of her person and clothing.

She further swore that when appellant took her crochet away from her she asked her son, Elma, to make him give it back, and Elma told him to hand it over to her, and he did so. “Mr. Needham caught ahold of me while I was still sitting down in the chair.” She said she did not remember how he caught her or whether he then hurt her, and that after it was over&emdash;

“I was scratched on my right hand and on my nose. Yes; there was some bruises just above my wrist; the belt of my dress was torn. The place on my nose bled some. * * * Enough to stain a handkerchief a right smart. * * . * It was almost covered. I had on an apron with a bib on it up over my breast, I think the bib had blood on it.”

Recalled by the state, she testified:

“After Oscar Needham tore my dress I hit him with a knife. I did not hit him until after he tore my dress. Elma did not hit me. After the trouble I' went over to Mrs. Harrison’s * * *”

From her testimony, and that of her son, Elma, and his wife, Fay, it is perfectly apparent they were withholding any evidence which they thought would incriminate appellant. They were doing all they could to shield him.

The said restaurant was on the same side of the street as the residence of Mrs. G. W. Harrison, and these places were only about 30 or 40 feet apart. Mrs. Harrison testified she knew all the parties; that on the day of this trouble between appellant and his wife she first saw Mrs. Needham that day when she was washing the blood off her face at a hydrant in her (Mrs. Harrison’s) yard. There was blood on her arm and on her apron.

“During the time that she was at her house I heard Mr. Needham cursing. He was around the resteurant somewhere. She had just come into the yard when I heard him over there. Yes; she made a statement to me. I asked her what was the matter. She said Oscar was over there tearing up the place. She said he threw a whisky bottle at her. I got her a rag to wash her face. She told me that they were eating dinner, she, Elma, and Pay, when Oscar-came in and took her crochet from her lap. Elma took it back and gave it to her. Oscar grabbed, her and she did not know what he was going to do. She hit him with a knife. She said it was in self-defense. * * * I do not know what else she said; she said so many things about the way he had abused her. She told me that he had threatened her many times, and at this particular time he struck her. * * * She had a bruise on her wrist, and the back of her hand was bruised. There were two places on her nose where something sharp had struck her. Blood was dripping from two places on top of her nose. It seemed to me like something had hit a wall and flew back and hit her. Yes; there was blood on her apron, and her clothing was torn. She said when he grabbed her he tore her dress. She said, T didn’t know whether he was trying to tear my clothes off or kill me.’ ”

Abe Harrison, a son of Mrs. Harrison, testified that be saw said Mrs. Needham over at his mother’s house on said occasion, and heard her make a statement; that his mother and others were present at the time.

“When Mrs. Oscar Needham came over there, there was blood on her clothes and on a rag or handkerchief. She said- Mr. Needham was drunk, and throwing everything he could get his hands on at them, and was trying to throw glasses at her. 'She had been there about 15 minutes when I left. I do not know where Oscar Needham was at that time. Mr. Allen came before I left. Mrs. Oscar Needham was at our house when he came. She said he (Oscar) tried to tear her clothes off of her. I do not remember whether she said he hit her or not. Mrs. Needham came from the restaurant.
* * She said he was trying to tear her clothes off of her, and she hit him with a knife.”

Mr. Allen, an officer, testified that on said occasion he went to Needham’s restaurant. Mrs. Needham was not there when he got there. He saw her over at Mrs. Harrison’s. He swore:

“She had a big swollen place on her arm, and her nose was swollen and scratched and bruised, and she had blood on her hands and clothing. I had a conversation with her over at Mrs. Harrison’s. She said that Mr. Needham-had hit her on the arm with a bottle or a glass. I don’t know which. I don’t know whether she knew or not. She had blood on her dress and her handkerchief was bloody. She showed me her arm. She said she would have to tell it like it was but she hated to. She said he was drunk, and was taking in every thing in the restaurant. She said he liked to have broken her arm. I then went and arrested Oscar Need-ham. When I got him he had a bottle of whis-ky. I made the complaint and got a warrant. I got the bottle the first time I saw him. It had’ blood on the bottle.”

Appellant objected to that part of the testimony of Mrs. Harrison, Abe Harrison, and Mr. Allen as to what Etta Needham told them. The court admitted said testimony as res gestas. He qualified and explained appellant’s bills on the subject all, substantially, in the same way. We quote his explanation and qualification of the first bill on the subject. It is:

“The part of the bill that shows that Mrs. Etta Needham said that the defendant was drunk was by agreement orally withdrawn from the jury, and they were instructed to disregard it. The balance of the bill, which shows the-statements made by Mrs. Etta Needham, was admitted by the court as res gestse, for the reason that the record, taken as a whole, shows, that they were made a very short time after the injuries were received, not over 10 or 15 minutes; that they were made while Mrs. Etta Needham was still bleeding freely from the wounds, and was trying to wash the flowing blood from her face; such statements being, in the opinion of the court, clearly within the rule of res gestm.”

The said testimony of the three witnesses objected to was clearly res gestae, and admissible on the authority of Gillespie v. State, 190 S. W. 146.

Appellant objected to this statement orar gument by the county attdrney to the jury:

“It is impossible for us to find the best class of people as witnesses in criminal cases, because-they are not the kind of people who see and hear such things. And that is why the state has had to bring here ‘him and his kind of cattle’; referring to defendant, and his wife, and, son, and daughter-in-law.”

The court explained and qualified this bill as follows:

“When objection was made to the above argument the court promptly sustained the same, and, by agreement of counsel for the defendant, orally instructed the jury to disregard said argument, and not consider it for any purpose. The court also, in the presence of the jury, reprimanded the county attorney making such argument, and told him that same was improper, and that such argument was not permissible, and should not be indulged in.”

Under the circumstances, this bill presents-no reversible error.

Appellant attempted to take other bills to some other claimed argument by the county attorney, but the explanation of the court thereof, is, in effect, a refusal to approve these bills. Hence they present no. reversible error.

The judgment is affirmed.

On Motion for Rehearing

The only contention of appellant, in his motion for rehearing, is, in substance, that the commission of the alleged offense cannot be established by res gestse evidence alone. The res gestae of any transaction, which is the transaction itself speaking, testified to by witnesses, is regarded by all the authorities as a very high class of testimony. In this case this offense was not proven by res gestae statements alone. The physical facts testified to by some of the witnesses, and the testimony of Mrs. Needham herself, in connection with the res gestae statements proven, were amply sufficient to prove the offense.” The testimony is substantially recited in the original opinion, to which there is no objection by appellant.

The motion is overruled. 
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