
    KEITH v. STATE.
    (No. 6098.)
    (Court of Criminal Appeals of Texas.
    April 13, 1921.
    On Motion to Reinstate Appeal, May 4, 1921.
    On Motion for Rehearing, June 8, 1921.)
    1. Criminal law >©=31086(13)— No appellate jurisdiction where record shows no sentence imposed.
    Where the record shows no sentence to have been passed upon defendant, the appellate court is without jurisdiction.
    On Motion to Reinstate Appeal.,
    2. Criminal law <©=>917(2) — No error in denying new trial for refusal of continuance where affidavits of absent witnesses denied they would have given testimony expected.
    It was not error to overrule a motion for new trial on the ground of error in refusing a continuance, where the affidavits of absent witnesses denied that they would have given the testimony expected of them.
    3. Mayhem- >©=>1 — Front tooth is “member of the body.”
    A front tooth is a member of the body within the comprehension of the maiming statute.
    4. Mayhem (@=6 — Charge on simple assault properly refused where no question as to loss of member nor of justification.
    In a prosecution for maiming, where there is no question as to the loss of a member of the body nor of justification, the only question being whether the injury was inflicted willfully or maliciously, there was no error in refusing a charge on simple assault.
    5. Mayhem @=36 — Charge defining “willful act” and “malice” held sufficient on question of intent.
    In a prosecution for maiming, a charge defining a “willful act” as one done with evil intent, and “malice” as denoting a wrongful act intentionally done without just cause or excuse, was sufficient on the question of intent.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Malice; Willful — Willfully.]
    6. Criminal law >©=3829(3) — No error in refusing charge on intent, where jury instructed to acquit if doubtful whether act done willfully.
    In a prosecution for maiming, where the court charged on aggravated assault, and instructed the jury to acquit if they had reasonable doubt as to whether defendant’s act was done willfully and maliciously, there was no error in refusing a charge that if defendant called off prosecuting witness with no intent to maim him, and a fight resulted, he was not guilty.
    7. Mayhem >©==6 — Evidence held insufficient to warrant charge as to effect of uncontrollable rage, sudden resentment, or terror.
    In a prosecution for maiming, evidence held insufficient to justify submission of the law as to an act resulting from uncontrollable rage, sudden resentment or terror, rendering accused incapable of cool reflection.
    8. Mayhem >©=35 — Evidence held sufficient to show threat against injured party, though not named.
    In a prosecution for maiming, evidence of a threat made by defendant a few minutes before the difficulty, in sight of prosecuting witness, held admissible, it being reasonably certain that the latter was meant, though no one was named.
    9. Mayhem >©=35 — Evidence of prosecuting witness as to testimony against defendant before federal grand jury admissible to show motive.
    In a prosecution for maiming, testimony of prosecuting witness that he was called before the federal grand jury to testify against defendant, and that he saw defendant at the time of the latter’s trial, in connection with defendant’s statements at the time of the assault, was admissible to show defendant’s motive.
    10. Criminal law >©=31036(2) — Answer not objected to as irresponsive and irrelevant not reviewable. •
    In a prosecution for maiming, an answer to a question put to prosecuting witness as to whether he was called upon by the sheriff to assist him was not reviewable, though not responsive and relating to matters foreign to the issue; no objection having been made, and no instruction to the jury not to consider same having been requested.
    11. Witnesses >@=3337(5) — Question whether defendant indicted for felony not erroneous because answered that he was indicted for misdemeanor.
    Whether he had been indicted for a felony may be asked defendant, and the fact that he answered that he was indicted for a misdemeanor does not make the question erroneous.
    12. Criminal law >©=31169(12) — Mayhem >@=35— Testimony defendant separated persons fighting short time before assault held not prejudicial, although immaterial.
    In a prosecution for maiming, testimony of a witness that he saw defendant separate two men who were fighting a short time before his difficulty with prosecuting witness was immaterial, but not prejudicial to defendant.
    On Motion for Rehearing.
    13. Mayhem >©=36 — Instruction defendant had right to seek injured party for explanation unnecessary.
    In a prosecution for maiming, there was no error in refusing to instruct the jury touching defendant’s right to seek the injured party for an explanation as to certain charges made by him, such an instruction being required only where the court qualifies the right of accused to act in self-defense.
    14. Mayhem >@=36 — Error to fail to charge on law of threats in connection with self-defense.
    In a prosecution for maiming, the truth of defendant’s testimony as to his having been informed of a threat against him by prosecuting -witness, and as to a demonstration indicating an intention to cut defendant just prior to the assault, was for the jury, its status as an issue of fact not being destroyed because supported by defendant’s testimony alone (Vernon’s Or. St. vol. 2, p. 481), so that the court erred in not charging affirmatively on the law of threats in connection with self-defense.
    15. Mayhem <®=»2—Self-defense applicable to maiming.
    The principle of self-defense is not limited to cases of homicide, but may be a defense to maiming.
    16. Criminal law ©=wl 173(3)— Jury’s rejection of self-defense do.es not cure error in failing to charge on communicated threats followed by overt act.
    In a prosecution for maiming, the rejection by the jury of defendant’s theory of self-defense did not cure the error committed in failing to charge as to the effect of communicated threats made by the injured party followed by an overt act at the time of the assault.
    17. Criminal law <S=>10i88( 17)—Issue, as to communicated threats cannot be eliminated by affidavit of witness denying facts.
    In a prosecution for maiming, an issue as to communicated threats made by prosecuting witness cannot be eliminated by an ex parte affidavit of the witness alleged to have communicated such threats, attached to the state’s pleading denying the allegations contained in the ¡motion for new trial, as affidavits attached to such a motion cannot be used as a substitute for testimony before the jury.
    18. Criminal law i§=x>1088(I7), 1133—-Affidavits filed after trial and denial of new trial' not consideration on appeal or rehearing.
    Affidavits filed after a trial, and after an order overruling a motion for new trial, are entitled to no place in the record, and to no consideration on appeal, and on rehearing will be ignored, the decision in the original hearing having been rendered without reference to the same.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    - Horace Keith was convicted of maiming, and he appeals.
    Reversed and remanded.
    Wynne & Wynne, of Kaufman, for appellant.
    C. M. Cureton, Atty. Gen., and E. E. Smith, Asst Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of the offense of maiming, and his punishment fixed at confinement in the penitentiary for a period of five years.

An inspection of the record discloses the fact that same shows no sentence to have been passed, upon the appellant. In this condition of the record this court would appear to be without jurisdiction, and the appeal is therefore dismissed.

On Motion to Reinstate Appeal.

This ease was dismissed at a former day of this term because the record showed no sentence, but a duly certified copy of the minutes of the court below has been filed showing such sentence, and the motion to reinstate is granted, and the cause now decided on its merits.

Appellant asked for a continuance. He was indicted July 2d, arrested July 3d, and filed his application for a continuance on July 7th. The absent witnesses named were D. R. Sayler, Ray Robinson, and S. K. Harp, the residence of each of whom was stated to be Kaufman county, Tex. The state controverted appellant’s motion for a new trial in so far as same relied upon the error in overruling his application for continuance, and attached to the replication of the county attorney the affidavits of said witnesses Robinson and Harp in which each specifically, denies that he would have given the testimony stated to be expected of him. The record contains an affidavit of witness Sayler, in which he also denies that he would have given the testimony expected of him. We do not think the record in this condition discloses any abuse by the trial Judge of the discretion confided in him in overruling appellant’s motion for now trial, or in refusing such continuance.

In his charge to the jury the court told them that if they found from the evidence that appellant made an assault on the injured party, and willfully and maliciously knocked out three of his front teeth, they should convict. Appellant excepted to this as an unwarranted assumption on the part of the trial court of the fact that a front tooth was a member of the body. Slattery v. State, 41 Tex. 620, and Bower v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901, are cited. Part of the lip in one of said eases, and part of the thumb in the other, was bitten off, and the question in each was whether or not such partial destruction of a member measured up to the requirements of our stature, which makes it maiming to cut off, or deprive a person of, a member of his body. In High v. State, 26 Tex. App. 545, 10 S. W. 238, 8 Am. St. Rep. 488, this court disapproved the application of the Slattery decision to the loss of a front tooth, and expressly held it no error for the trial court to assume in the charge that a front tooth was a member of the body within the comprehension of the maiming statute. We agree with the doctrine of the High Case.

If we be correct in what we have just said, there was left no issue as to the fact that Mr. Choate, the injured party, was maimed by appellant, who knocked out three of his front teeth, and hence the question of simple assault did not arise. The Key Case, 73 Tex. Cr. R. 642, 161 S. W. 122, L. R. A. 1916E, 492, referred to by appellant, presents a case wlierein a small part of the rim of the ear was bitten oft in a fight admittedly brought on by the injured party, who did not appear as a witness. The accused testified without contradiction that in the fight the injured party was biting upon his neck, and that he bit back intending to bite the neck of his assailant, and did not know until they were separated that he had bitten his ear. The case thus lacking the apparent element of willfulness and maliciousness, and raising a very serious question as to whether there was any maiming, the dissenting opinion in this court held that simple assault should have been submitted. This might be sound in that character of ease, but has no application here, where there is no question as to the loss of a member of the body, and none of justification in the assault, the only question left being whether such injury was inflicted willfully and maliciously. There was no error in refusing the special charge on simple assault.

Appellant excepted to the court’s failure to charge on the question of his intent and premeditated design. In the Davis Case, 22 Tex. App. 50, 2 S. W. 630, and the Key Case, supra, we held that if the maiming was actually committed, and was with evil intent and without justification, same would be punishable whether or not there was any specific intent or premeditated design to maim. In the instant case the trial court defined a willful act as one done with evil intent, and told the jury that malice denoted a wrongful act intentionally done without just cause or excuse. This we think sufficient upon the question of intent under the facts of this case. Bowers v. State, 24 Tex. App. 549, 7 S. W. 247, 5 Am. St. Rep. 901; Pool v. State, 59 Tex. Cr. R. 482, 129 S. W. 1135.

In addition to what we have just said, attention is called to the fact that the court charged on aggravated assault, and carefully instructed the jury that-if they had a reasonable doubt as to whether the act of appellant was done willfully and maliciously they should acquit him of maiming. For these reasons there was no error in refusing appellant’s special charge No. 4, which is as follows:

“If you should find and believe from the evidence that the defendant, Horace Keith, called W. K. Choate off for the purpose of having a difficulty with him, and that at the time the defendant had no intention or a premeditated design to maim the said W. K. Choate, by knocking his teeth out, and that a fight ensued between the defendant and W. K. Choate, and during said altercation the teeth of W. K. Choate were knocked out, then you are charged that defendant would not be guilty of maiming under the law, and you will find him not guilty of this offense.”

We find nothing in the authorities cited (Lee v. State, 34 Tex. Cr. R. 519, 31 S. W. 667; Halsell v. State, 29 Tex. App. 22, 18 S. W. 418) which support the contention of appellant that this charge should have been given.

An exception was taken to the court’s charge for its failure to submit the law applicable to an act of appellant resulting from uncontrollable rage, sudden resentment, or terror which rendered him incapable of cool reflection. No special charge on this issue appears in the record. We are unable to find anything in the evidence reasonably tending to support such theory. The court fully submitted self-defense based on both real and apparent danger, telling the jury that if appellant believed that Choate , was about to assault him he would have the right to act as he did in his own self-defense and strike Choate.

It seems from the statement of facts that appellant had gotten into trouble at some time prior to this difficulty by reason of his connection with some shipment of intoxicating liquor. He and others thought Choate was in some way to blame for their trouble. On the occasion in question he called Choate off to one side, and, according, to the state’s testimony most brutally assaulted him, knocking out three of his upper front teeth and loosening a number of others, and beating his head against the cement sidewalk until Choate was reduced to a condition of insensibility. Appellant was a large man, weighing over 200 pounds, and Choate was a small man weighing' about 130 pounds. While Choate was prostrate on the ground and appellant astride of him and beating him in the face, he said between blows with an oath that Choate would not pimp on him any more. 'According to appellant’s own testimony, shortly before the occurrence one Robinson came to him and repeated a very ugly threat made by Choate, and appellant said that when he called Choate off to one side he wanted to speak to him about this threat; but the record fails to disclose, among the other things which appellant admitted he did say to Choate on said occasion, any reference to what he claims Robinson had told him. Robinson, in his affidavit attached to the state’s controversy of appellant’s motion for a new trial, specifically denies having repeated to appellant any threat of Choate, or that Choate had ever said anything to him concerning appellant. ' This might not be sufficient to entirely justify an assumption of the truth of Robinso'n’s statement, he not having been on the witness stand confronting appellant, but it may be looked to as strengthening the supposition as to the falsity of appellant’s reason, as stated by him, for calling Choate to one side, which supposition is based on the fact that in the ensuing conversation testified to by appellant he did not even claim to have mentioned such threat. Witness Choate, corroborated by a number of apparently disinterested parties, testified that appellant called him off!, and as they walked away appellant put one arm partially around Choate’s shoulders or neck, and began to beat him in the face with his other hand and, after knocking him to the sidewalk, got astride of his body, and beat his head up and down against the cement sidewalk.

It is complained that the trial court erred in allowing state witness Johnson to testify to a threat made by appellant, the objection being that same named no person, and that there was no evidence sufficient to make it reasonably apparent that Choate was meant. Johnson testified that about 10 minutes before the difficulty he heard appellant and Henry Davis in conversation across the street from where this trouble took place. He only heard part of what was said. Davis said that he “would whip him,” and appellant said no,'that he would do it himself; and appellant said to Davis something about “keeping the dogs off”; also that when the two men left shortly they went in the direction of the place where the difficulty took place. Other evidence showed that Davis walked up with appellant and stood about 10 feet away while appellant was beating Choate, and that he made no effort to interfere, and for some reason was not used by the defense as a witness. In the Briscoe Case, 222 S. W. 249, cited by appellant as supporting his objection to this threat, we said that mere proximity of time would not seem to justify evidence of a threat unless there was something in the case to make it reasonably certain that the injured party was meant or included therein. We think that the facts in the instant case differentiate it from the Briscoe Case, and bring it within the rule announced.

We find no error in the testimony of Choate as same appears in bill of exceptions No. 4. Said witness testified that he was called before the federal grand jury as a witness against appellant and one Fuller; that he saw appellant in Dallas at the time of appellant’s trial. Motive for the assault was a material issue, and this testimony, connected with the statements of appellant at the time of the occurrence, shed light on appellant’s motive. If we understand bill of exceptions No. 7, what we have just said is also true of it. The question, as asked and objected to therein, is stated to be, “Were you called upon by the sheriff’s department to assist them there?” Such a question would seem to call for either an affirmative or negative answer, the objectionable character of which should have been made to appear in the bill. For counsel to permit an answer apparently not responsive, and now urged to relate to matters foreign to any issue, to be given without objection that it was not called for, and without request for instructions to the jury not to consider same, would hardly seem to bring the matter here for review. We apprehend that the matter of said answer was admitted as shedding light on appellant’s motive, and the bill in no event contains anything showing it not pertinent to that issue.

Whether one has been indicted for a felony may be asked him when on the witness stand, and the fact that when objection thereto is overruled he answers that he was indicted for a misdemeanor does not make the question erroneous. Appellant was not compelled to make such answer, but might have replied that he had not been so indicted.

That witness Dallas stated that he saw appellant separate Henry Davis and another man who were fighting some little time before the difficulty herein between appellant and Ohoate would not appear to be material, and in no event could same have injured the accused. Rather would proof that he was a peacemaker seem favorable to him,

We have carefully considered all the matters urged in the able brief for appellant, and, finding no reversible error, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

In the motion appellant stresses a phase of the case which was not made clear on the original presentation.

There was no error in refusing to instruct the jury touching appellant’s right to seek Ohoate for an explanation. Such an instruction is required only in cases in which the court in its charge qualifies the right of the accused to act in self-defense.

Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595. The charge was assailed for its failure to embrace therein an instruction defining appellant’s right under the law pertaining to comunicated threats.

Appellant testified that he was informed that Choate, the injured party, threatenéd to cut his “guts” out; that shortly thereafter he saw Choate and accosted him; he said, “I want to speak to you”; that they walked together, and appellant asked him if they had not agreed to be friends; that Oho-ate did not reply, but pushed appellant back with his left hand and started to put his right hand in his pocket; that the appellant then grabbed his right hand and the fight ensued; that when he spoke to Ohoate he had no intention to bring a fight; that he had previously had a conversation with Ohoate about making friends. According to appellant’s statement, the reason he said, “Now, damn you, I guess you won’t pimp on anybody again” was that he had just been told by Robinson of a threat made by Choate, and that he hit him because of what he had been told, and because Choate had refused to answer his question and had made the demonstration mentioned; that at the time he struck the first blow he believed Choate was about to cut him; that during the fight he said, in substance, “If you threaten me again, I will use a pistol.”

Dallas, a state’s witness, said on cross-examination that the appellant had said that the reason for the trouble was that Choate had threatened him. Apparently, if appellant’s testimony is true, antecedent to the conflict he had been informed of a threat against him made by the deceased, and, Choate, immediately before appellant assailed him, made a demonstration which was viewed by the appellant as indicative to an intention to execute the threat. There was thus presented an issue of fact. That it was supported by the appellant’s testimony alone did not' destroy its status as an issue for the solution of the jury. The truth of his testimony was for the jury. Vernon’s Tex. Crim. Statutes, vol. 2, p. 481; Cyc. Law & Proc., vol. 12, p. 487; Whart. Crim. Evidence, p. 899.

Mr. Branch, in his Annotated Texas .Penal Code, § 2083, says:

“If there is evidence of communicated threats and of an overt act by deceased at the time of the homicide not amounting to an actual attack, the court should charge the jury affirmatively on the law of threats in connection with self-defense."

Numerous cases are cited, among them being Sims v. State, 9 Tex. App. 593.

The principle of self-defense is not limited to cases of homicide. It may be a defense to maiming. Wharton’s Crim. Law, vol. 1, p. 484. This Is recognized in the instant case, and in a restricted manner it was presented to the jury. The court, however, was not warranted in refusing, in response to the appellant’s exception to the charge, to embody therein the phase of the law of self-defense which arose upon evidence of communicated threats made by the injured party and followed by an overt act at the time of the assault. Wharton’s Crim. Law, vol. 1, p. 9S4; Green v. State, 15 Ann. Cas. 82.

The rejection by the jury of appellant’s theory of self-defense does not cure or render unimportant the error committed in ignoring the evidence of threats. Had the jury known that, under the law, an overt act, which alone would appear of little significance, might, viewed in the light of evidence of threats, become of vital weight as bearing on self-defense, their solution of that issue might have been favorable to appellant.

The issue raised from the testimony of the appellant delivered upon the trial in the presence of the jury cannot be eliminated by an ex parte affidavit of the witness Robinson attached to the state’s pleading controverting the allegations of fact contained in the motion for a new trial. Affidavits attached to the motion for a new trial, while available to aid the court in solving the issues of fact presented in the motion, cannot be used as a substitute for testimony before the jury. In passing we will say that affidavits, some of which are found in the record in this case, filed after the trial and after the order overruling the motion for new trial, are but incumbrances and entitled to no place in the record and to no consideration by this court. The decision in the original hearing was rendered without reference to affidavits of this character put in the record by the state, and upon this hearing we must ignore these, as well as those which the appellant has attached to his motion for rehearing.

For the reason that the court refused appellant’s request to instruct the jury upon the law of communicated threats in connection with the charge on self-defense, the rehearing is granted, the affirmance set aside, and the judgment of the trial court is now reversed, and the cause remanded. 
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 232 S.W. — 21
     
      (SaoKor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     