
    MARTINEZ et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1913.)
    1. Criminal Law (§§ 1092, 1099)—Appeal-Statement op Facts—Bills oe Exception —Time fob Filing.
    On an appeal in a criminal case, statement of facts and bills of exception, filed four months after the adjournment of the term at which accused was convicted, could not be considered, where no application for an extension of time was made for 98 days after such adjournment, and where, although defendants were in jail and claimed that the failure of their original attorneys to file such bills and statement was without their knowledge, it was not shown that they had made any inquiry within the time allowed by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1129) — Appeal—Assignments of Error — Time foe Filing.
    Assignments of error, filed four months subsequent. to the adjournment of the term of court at which accused was convicted, could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.]
    ,3. Ckihinal Law (§ 1144) — Review — Pee-stoiptions.
    Under the express provisions of Code Cr. Proe. 1911, art. 938, it will be conclusively presumed on appeal that defendants pleaded to the indictment, where no question relative thereto was made in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2991, 3016-3037; Dec. Dig. § 1144.]
    4. Criminal Law (§ 995) — Judgment—ReCITALS.
    Where a judgment of conviction recited that a jury had “heard the indictment read by the district attorney and the defendant’s plea of not guilty,” it sufficiently showed that all of the defendants pleaded to the indictment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2521, 2523-2526, 2528%, 2530, 2536-2543; Dec. Dig. § 995.]
    5. Criminal Law (§ 1064) — New Trial— Motion — Specification of Grounds.
    A motion for a new trial, on the ground that the court erred in not charging on mutual combat, defendant’s testimony warranting such charge, was too general to present any question for review on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    6. Criminal Law (§ 1038) — Appeal—Questions Not Raised Below.
    Under Code Cr. Proe. 1911, art. 743, providing that a judgment in a criminal case shall not be reversed because of a disregard of the preceding articles relative to instructions, unless the error was calculated to injure the rights of the defendant, and was excepted to at the time or on a motion for a new trial, the failure of the court, on a trial for assault to murder, to submit the issues of self-defense and alibi cannot be raised for the first time on appeal.
    [Eld. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    7. Criminal Law (§ 1064) — New Trial— Motion — Specification of Grounds.
    A motion for a new trial, on the ground that the verdict and judgment are contrary to the law and the evidence, only raises the question on appeal whether the evidence was sufficient to sustain the verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    8. Criminal Law (§ 1090) — Bii,ls of Exception — Necessity.
    Errors in the formation of the jury, or in the selection of any juror, cannot be reviewed on appeal, in the absence of a bill of exceptions.
    [Eid. Note. — For other cases, see . Criminal Law, Cent.' Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    9. Homicide (§ 181) — Evidence—Admissibility.
    • On a trial for assault to murder, where accused claimed that there, had been improper relations between his wife and the prosecuting witness, a petition for a divorce, filed by accused two years before, -was properly excluded, where it appeared that he had condoned any wrong done by his wife, and had been living with her; and hence the exclusion of such petition was not reversible error, ’ especially where the bill of exceptions thereto did not set out the petition.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.]
    10. Criminal Law (§ 366) — Evidence—Res Gestas.
    Where witnesses heard an injured person exclaim, “Don’t kill me!” at once went to him, and saw several persons going away, what he then said was admissible as res geste on a trial for assault to murder.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820, 1441-1450; Dec. Dig. § 366.]
    11. Criminal Law (§ 1120) — Bills of Exception-Sufficiency.
    The admission of questions cannot be reviewed on appeal, where the bill of exceptions contains only the question and not the answer thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    12. Homicide (§ 181) — Evidence — Admissibility.
    On a trial for assault to murder, evidence of improper relations between accused’s wife and the prosecuting witness two years before was incompetent, where accused and his wife had since been living together, and accused had come in almost daily contact with the prosecuting witness, since such fact, if proved, would not reduce the grade of the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.]
    13. Criminal Law (§ 1030) — Appeai—-Ques-tions Not Raised Below.
    A judgment in a criminal case cannot be reversed on grounds presented for the first time on appeal, unless the error is fundamental.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig." §§ 2619-2621, 2629, 2632, 2653; Dec. Dig. § 1030.]
    14. Criminal Law (§ 1184) — Appeai>-Modi-FIOATION.
    Where the verdict assessed accused’s punishment at 5 years’ imprisonment, while the judgment ordered his'imprisonment for 10 years, the judgment would be corrected to conform to the verdict, under Code Cr. Proe. 1911, art. 938, authorizing the Court of Criminal Appeals to correct the judgment appealed from.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.]
    Appeal from District Court, Ward County; g. J, Isaacks, Judge.
    'Arcadio Martinez and others were convicted of assault to' murder^ and they appeal.
    Affirmed.
    
      Hefner & Cooke, of Pecos, for appellants.' O. B. Lane, Asst A tty. Gen., for tlie State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic anil section NUMBER in Dec1. Dig. &.Am. Dig..Key.-No. Series & Rep’r Indexes
    
   HARPER, J.

Arcadlo Martinez, Ruberto Grecia and Edubijen Guzman were indicted, charged with assault to murder, convicted of that offense and sentenced to the penitentiary.

Appellants were convicted at a term of the district court of Ward county which adjourned on January 27, 1912. No statement of facts or bills of exception were filed in the trial court until May 28, 1912 — four months and one day subsequent to the adjournment of court. In the record we find an application for an extension of time and permission to file a statement of facts and bills of exception, dated May 5, 1912, claiming that.the attorneys who had represented appellants on the trial of the .case, without their knowledge, had neglected and fáiled to file bills of exception and statement of facts, and that the motion was made as soon as the defendants became advised of the facts, and that unless a further extension was granted, it would be impossible for them to perfect the record; that as soon as they were informed of the circumstances1, they immediately employed the attorneys whose names are signed to the application. It is true that the record discloses that appellants were , in jail, and were carried from Ward county (that county having no secure Jail) to Reeves county for safe-lreeping, but does this excuse them from all diligence in the matter? It will be seen that it was 98 days after the adjournment of .the court for the term before the date of the application filed by the present attorneys; and,'while it is doubtless true this is the first time these attorneys’ attention was called to the matter, yet were appellants not themselves guilty of inexcusable negligence? Certainly if the attorneys who represented them on the trial did not call on them during this time, and they heard nothing from them, it would put any ordinary man on inquiry before the lapse of more than three months’ time. We do not think such negligence is excusable, for no sufficient reason is shown why diligence was not used by them within the time' allowed by law. Prom the same source they obtained this information on or about May 5th, upon inquiry it could have been obtained at a time within the period allowed by law for filing these papers. We have gone the full limit authorized by law in considering statement of facts' if filed within 90 days from the date of adjournment of court, and further time we cannot grant, .unless some reason should be shown whereby from sickness or some unavoidable reason the defendants were prevented from using proper diligence within the. period granted. The statement of facts and. bills of exception will be stricken from the record.

But if we should consider them, together with the amended motion for new trial, no error that should cause the reversal of the case is presented. Under no circumstances would we be authorized to consider the assignments of error filed four months subsequent to the adjournment of court. Art. 743 of the Code of Criminal Procedure; Pena v. State, 38 Tex. Cr. R. 333. 42 S. W. 991; Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804; Wilson v. State, 52 Tex. Cr. R. 176, 105 S. W. 1026; Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 222.

The complaint, made for the first time in this court, that the judgment of conviction does not show that all the defendants entered a plea of not guilty cannot be considered. Appellants in their brief quote a great number of decisions of this court rendered prior to 1897, but they take no notice that those very decisions caused the Legislature in 1897 to amend the Code of Criminal Procedure, and provide in article 938: “In all cases the court shall presume that the jury was properly impaneled and sworn; that the defendant was arraigned; that he plead to the indictment, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge.” No such contention was made in the trial court, consequently we must conclusively presume that appellants pleaded to the indictment, and our decisions all. so hold since the adoption of this provision of the Code of Criminal Procedure. But if we look to the record we think it shows that the defendants did enter their pleas. The judgment reads: “Came a jury of good and lawful men. to wit. Lee P. Freeman and eleven others, who having been selected, were duly impaneled and sworn, •and who having heard the indictment read by the district attorney and the defendant’s plea of not guilty,” etc. The criticism that the use of the apostrophe before the letter “s” in the word “defendants” is highly technical when the judgment as a whole shows that a plea was entered by all of them. However, the Code is now conclusive that such error cannot be assigned for the first time in this court.

The only complaint of the charge of the court contained in the motion for new trial, or in the amended motion, reads as follows: “Because the court erred in not charging on mutual combat, as defendant’s testimony warranted such charge.” This has frequently by this court been held to be too general to present any question for review. Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591. But if we weré to consider the evidence, this issue was not raised by the evidence. The evidence for the state would show an unprovoked assault, while the evidence of two of the defendants might present self-defense, and alibi as to Ruberto Grecia, but there was no bill of exceptions reserved to the charge, and no complaint of it in these respects in the motion for new trial. Tlie errors attempted to be pointed out for the first time in this court in the assignments of error and in the brief cannot be considered. Article 743, Code of Criminal Procedure.

The ground in the motion “that the verdict and judgment are contrary to the law and the evidence” is too general to call our attention to any error, unless the evidence was insufficient to sustain the verdict. If we were to consider the statement of facts, the evidence for the state amply supports the verdict.

There was no bill of exceptions reserved to the formation of the jury, or to the selection of any member of the jury; therefore we could not review the three grounds in the motion relating to this matter.

The record does not disclose that there was even a verbal application made to change the venue, much less one in conformity with the Code, and nothing in the record discloses any reason why the venue should have been changed, and certainly under these circumstances these grounds present no error.

It is shown by the record, if we consider the bills, that appellant Martinez desired to introduce in evidence a petition for divorce he had filed against his wife two years prior to this difficulty. The record would also show a condonation on the part of said Martinez long prior to this difficulty, if his wife had done any wrong, and they had been again living as man and-wife for a great length of time. The fact that Martinez had filed a suit against his wife would trace no notice of the allegations contained therein to the person assaulted in this case, and the court did not err in excluding the petition. In addition to this the bill does not include the petition, nor any portion thereof, nor does the record disclose the petition desired to be introduced; consequently the question is not presented in a way that we could intelligently review the action of the court. Eifer v. State, 141 S. W. 993, and cases there cited.

The record discloses that several persons heard the injured person exclaiming, “Don’t MU me!” when they at once went to him, and saw three persons going away. What he then said would be admissible as res gestae. However, the bill that seeks to raise this question contains only the question asked, and does not contain the answer of the witness'. So it is not presented properly, but if it had been, the testimony was properly admitted. Bill'No. 7 is in the same condition. While it shows the question propounded, it does not disclose the answer of Dr. Mayhugh, if any answer he made.

In the only other bUls in the record, if we consider them, it is claimed that some witnesses would have ‘ testified that two-years prior to this difficulty they had heard the injured person, Ursulo Martinez, say he-had improper relations with Antonio Martinez’s wife. The bills also disclose that since said time Antonio and Ms wife had been living together; that for two years he had come almost in daily contact with Ursulo Martinez, and such testimony would not reduce, nor tend to reduce, the offense from assault to murder to aggravated assault. If a person is informed that another has had improper relations with Ms wife, he cannot thereafter be brought in almost daily contact with such person, and after a lapse of two years time have an offense reduced by reason of such conduct; in fact such evidence would go towards showing malice aforethought. So if we considered the bills of exception found in the record, and the statement of facts, no ground in the amended motion for new trial would present any error, and we are proMbited by law from reversing a case on grounds presented for the first time in this court unless fundamental error is disclosed.

There is one matter called to our at-' tention which should be considered. The verdict of the jury finding Ruberto Grecia guilty of murder in the second degree assesses his pumshment at only 5 years in the penitentiary. The judgment or sentence in-the record orders Ms confinement in the penitentiary for a period of 10 years. By article 938 of the Code of Criminal Procedure we are authorized to reform and correct the judgment if there is sufficient evidence of record by which to make the correction. The verdict of the jury being contained in the record, and it assessing the punishment of Ruberto Grecia at only 5 years in the penitentiary, the sentence as to Mm is hereby reformed so as to read “5 years” wherever the words “10 years” appears in said sentence. McCorquodale v. State, 54 Tex. Cr. R. 360, 98 S. W. 879, and eases cited in section 1262, WMte’s Ann. Code Crim. Proc.

The judgment is affirmed.  