
    BAKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1913.
    Rehearing Denied Feb. 5, 1913.)
    1. Game (§ 9) — Oitenses.
    Evidence in a prosecution for killing a wild deed out of season held to sustain a finding that the deer was killed in the close season in 1910 or 1911.
    [Ed. Note. — For other cases, see Game, Cent. Dig. § 9; Dee. Dig. § 9.]
    2. Criminal Daw (§§ 413, 419, 420) — Evidence — Self-Serving Declarations.
    In a prosecution for killing a wild deer out of season claimed by the state to have been done in 1910 or 1911, within the period of limitations, evidence that accused had told another that some time in the summer of 1909 he had killed a deer at the place charged was properly excluded as hearsay, and self-serving.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 413, 419, 420.]
    3. Criminal Law (§ 1090) — Appeal — Bill op Exceptions.
    Where the information contained in the record was properly signed by the county attorney, and the fact that it was not so signed was not authenticated by a bill of exceptions, error cannot be predicated on the overruling of a motion in arrest of judgment on the ground that the information was not signed by the prosecuting attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 1090) — Appeal—Presentation Below.
    In the absence of a bill of exceptions to a charge in a prosecution for unlawfully killing a wild deer because the period of two years within which the court charged that a conviction could be had if the killing occurred within that time included several months of the open season, and failure to request a written charge correcting the error, it cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803, 2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions.
    Where all of the evidence in a prosecution for unlawfully killing a deer went to its killing on or about August 1, 1909, 1910, or 1911, error in a charge that if accused within two years next before May 13, 1912, killed a wild deer, the jury should convict, on the ground that two years from that date would embrace the open season of from November 1, 1910, to January 1, 1911, and from November 1, 1911, to January 1, 1912, was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    C. G. Baker was convicted of unlawfully killing a wild deer, and lie appeals.
    Affirmed.
    N. G. Walker, of San Saba, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDBRGAST, J.

Appellant was charged, by proper complaint and information, with unlawfully killing a wild deer on or about August 1, 1911, within the time from January 1 to November 1, 1911, convicted and fined $10, the lowest fine.

The most material question is appellant’s contention that the evidence is insufficient to sustain the verdict. The statement of facts is brief, and we have read and studied it several times, and have reached the conclusion that the evidence is sufficient to sustain the verdict The state proved by Will Franklin that he was with appellant when appellant killed a deer at what is known as the Clark tank in A. Behren’s pasture in San Saba county, Tex.; that they were watching this tank for deer and one came up; that appellant shot it, and it ran off about 100 or 200 yards east of the tank — he thinks it was east — and fell dead. They dressed it and took it home with them that night. He says; “I think that this happened some time in the summer of 1909, about the month of August. It might possibly have been in the year 1910, but' I believe that it was in the year 1909.” He then shows they went out to the place in a buggy, but could not get the buggy on the inside of the pasture, as the .pasture gate was locked so that they left the buggy outside, and climbed over the fence. He says; “I am sure this was not in 1911, and this was the only time that I was ever with the defendant when he killed a deer,” and that deer was the only one, so far as he knew, that defendant ever killed; that they cut the feet off the deer and removed its hide and entrails, and left the entrails and feet where it fell.

Enno Behrens and also Otto and Alvin Behrens, three witnesses, each testified: That about August 1, 1911, they were out in their father’s, A. Behrens’, pasture, known as the Clark pasture, in which was located a tank known as the Clark tank, and that about 5 o’clock that evening they came upon the defendant, who was at the tank. " They spoke to him and passed on; saw no one else with him then. That appellant was at the time standing near a buggy which was close to the tank inside of the pasture. That three or four days after this they came back to this tank, looking after some cattle, and their attention was attracted to a bunch of cattle bellowing and pawing about something southwest of the tank about 200 yards. They went to the place and found where a deer had been killed, the blood signs, entrails, and three of the deer’s feet were still there. The entrails showed to have been “pawed around a right smart,” but seemed to have been tolerably fresh. All three of these witnesses were positive and certain that this was about the 1st day of August, 1911, and fixed the time by reason of the fact that they had bought some cattle from Wilson, and had just branded them, and were watching them to prevent worms from getting in them.

Appellant testified that he was with the witness Franklin when he killed a deer at said tank in 1909; that it was about 10 o’clock at' night and a bright moonlight night; that he shot the deer, and it ran off about 100 yards east of the tank and fell; that they dressed it where it fell, and brought it to town with them that night. He says they left their buggy outside of the pasture and climbed over, because the gate was locked so that they could not get their buggy in; that he had been in said pasture several times during the last two or three years bee hunting and deer hunting; that he did not kill a deer in said pasture in 1911. “It might be possible that I killed one there in 1910, but I think not.” He had not been in that pasture where he and Franklin killed this deer with his buggy for nearly three years, because the gates were locked.

Enno Behrens testified, in rebuttal, that at the time he saw the deer feet and entrails in the pasture the gates near the tank were locked; that they began locking them in the latter part of 1909 or first part of 1910, in cold weather, but sometimes left them unlocked when they were riding in the pasture. This is, in substance, the whole of the testimony. It is perfectly clear therefrom that appellant killed a deer at said tank on or about August 1st. . Whether it was in 1909, 1910, or 1911 is the sole question. Appellant and Franklin thought it was in 1909, though each, in substance, testified that it might have been in 1910. They both were positive that it was not in 1911. The three other witnesses were positive that it was in 1911, and they fixed the date by other facts and circumstances. The discrepancy of the location from the tank where' the deer fell is by no means controlling. Franklin thought it was 100 or 200 yards from the tank, and he first said east, then he said he thought it was east. Appellant said it was about 100 ■yards east from the tank. The Behrens say that it was about 200 yards southwest from the tank. The Behrens show that they did not lock the gates of the pasture near the tank during the summer of 1909, and not until the latter part of 1909 or the first part of 1910, and even then that the gates were sometimes left unlocked when they were riding in the pasture. It is shown by them that they were riding in this pasture at that time. They all three swear that they saw the appellant at the tank on or about August 1, 1911, and he does not dispute that.

It is clear that if he killed the deer in August, 1911, he was clearly guilty, and we think the evidence is sufficient to sustain the jury in their finding that the deer was killed by him in August, 1911, but, if they were mistaken as to the year, the appellant and the witness Franklin say that while it was in 1909 it might have been in 1910, if it was either 1910 or 1911, the evidence was sufficient to sustain the conviction, and in either event, we think the evidence was sufficient to justify the jury to find, first, that it was in 1911, and, if not, it was in 1910.

The proposed testimony appellant offered by Edwards that he, appellant, had told Edwards that some time in the summer of 1909 that he and Will Franklin had killed a deer the night before at the Clark tank in Behrens’ pasture, was properly excluded bjr the court on the objection of the state that it was hearsay and a self-serving declaration.

It is claimed by appellant, in his motion in arrest of the judgment, that the county attorney had not signed the information herein. This is in no way authenticated oy bill of exception from the court. The information contained in the record is properly signed by the county attorney; so that as the matter appears the court did not err in overruling his motion in arrest of judgment. In his motion for new trial appellant complains that the court erred in submitting the case to the jury for a finding, wherein he charged that if they believed from the evidence beyond a reasonable doubt that he on or about the 1st day of August, 1911, as charged in the information, and within two years next before the 13th day of May, 1912, killed a wild deer, as charged, to find him guilty, because the period of two years from May 13, 1912, would embrace the time from November 1, 1910, to January 1, 1911, and from November 1, 1911, to January 1, 1912, at which time it was no violation of the law to kill a wild deer.

The appellant took no bill of exceptions to this feature of the court’s charge, and requested no written charge at the time to correct it. Hence the question is not presented in such a way that we can properly review it.

However, all the evidence was directed to the killing of a deer on or about August 1st, either of 1909, 1910, or 1911, and no injury could have resulted to appellant because of this mistake by the court in embracing said period of time when it was not unlawful to kill a deer.

The judgment will be affirmed.  