
    TERRELL v. STATE.
    (No. 4624.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Criminal Law @=>621(2) — Right to Separate Trial — Order op Trial.
    In a prosecution of three defendants for assault with intent to kill, orders overruling a defendant’s motion to sever from another, and granting the latter’s motion that the other two defendants be tried before she was, deprived the first defendant of no right given him by Code Cr. Proc. 1911, art. 726, entitling him to a separate trial, and, there being no agreement between him and the female defendant as to the order of trial, the court, under article 727, was authorized to direct it.
    2. Criminal Law @=>621(2) — Order op Trial —Determination.
    Where separate trials were ordered, and, one of defendants being sick, to have directed her trial first would have resulted in a' continuance, it was not error to deny a motion that she be tried first.
    3. Criminal Law @=>1150 — Change op Venue — Local Prejudice — Evidence — Statutes.
    In a prosecution for assault to murder, the county having a population of 50,000, and the county seat about 15,000, while, of the witnesses who testified on defendant’s motion for change of venue on the ground of prejudice, under Code Cr. Proc. 1911, art. 628, a great preponderance in number gave opinion that there existed no such prejudice as would make it improbable that defendant would receive a fair trial, the court’s finding to such effect was supported by the preponderance of the evidence, and there was no such abuse of the discretion vested in the trial court as would authorize the Court of Criminal Appeals to reverse the judgment for failure to change the venue under article 634.
    4. Criminal Law @=>508(5) — Evidence—Co-defendant in Criminal Case — Statutes.
    One indicted as a principal with defendant for the same crime was not available to him as a witness under Code Cr. Proc. 1911, art. 791, or Pen. Code 1911, art. 91, providing that persons charged as principals, accomplices, or accessories cannot be introduced as witnesses for one another.
    5. Criminal Law @=>598(2) — Continuance-Absence of Witnesses.
    In a prosecution for assault to murder, overruling defendant’s motion for continuance to secure the testimony of throe witnesses who resided in the city where the case was tried, two or throe of the witnesses being present at the trial and not put on the stand, was proper, all being wanted to prove the fact that tibe injured party was a powerful man, violent, and dangerous.
    6. Criminal Law @=>855(1) — Trial—Misconduct of Jury — Reception of Evidence.
    In prosecution of a 19 year old defendant for assault to murder, where defendant made proof of his age, there was no misconduct of the jury because one remarked that defendant was a boy and his punishment should be lighter on that account, to which was replied that he was old in ways and had been a man a long time; some of the jurors in the course of deliberation having been for 15 years’ imprisonment, some for a lower term, the final agreement being for 12 years, such discussion not being within the rule against receiving evidence after retirement of jury.
    7. Criminal Law @=>1111(3) — Appeal—Conclusiveness of Finding.
    On the matter of comment on defendant’s failure to testify,* the court’s statement, qualifying the bill, that such comment did not occur, is not conclusive on the Court of Criminal Appeals; but his finding will not be disturbed, where all the jurors except one testified there was no such comment.
    8. Criminal Law @=>1159(1) — Appeal—Review — Extent of Punishment.
    The punishment for the offense of assault to murder was within the exclusive province of the jury, and, in the absence of error or evidence tending to show the verdict was the result of and enhanced by passion and prejudice, it will not be disturbed on appeal, solely on account of the extent of punishment.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Louie Terrell was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Birmingham & Johnson, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

On an indictment for assault with intent to murder appellant was convicted, and his punishment assessed at. confinement in the state penitentiary for 12. years.

Ed Bennett, Emma Rice, and appellant were charged by separate indictments with an assault to murder T. S. Stites. There is evidence supporting the following recital of facts: T. S. Stites was a man 52 years old, ruptured, and having a crippled hand. He- and his son, a boy, were traveling in a buggy, and Mr. Brooks and his boy in another buggy, at night, and met Ed Bennett, driving an automobile in which, besides himself, appellant, and Emma Rice were riding. The automobile, in passing Stites’ buggy, which was in front, came near striking it, and did strike and overturn and break the buggy in which Brooks and his son were riding. That the-collision was due to- the failure of Bennett to give a proper portion of the road. Brooks was caught in the wreck of his buggy, but was extricated uninjured by his son, and, after telling Bennett that he must pay for the-wreck, Bennett consenting, Brooks went after his horse. Stites had a flash light, and with this in his hand got out of his buggy and walked back to the scene of the wreck, and was undertaking, with the flash light, to show the tracks of the buggy and automobile, to make good his contention that the fault was Bennett’s in failing to give part of the-road. A quarrel followed, in which Bennett attacked Stites with a knife, cutting him several times; Stites defending by striking with his fists and by catching and holding Bennett’s hand containing the knife. Emma Rice called to appellant, who had n'ot previously taken part in the difficulty, to help-Bennett, whereupon he went up behind Stites and stabbed him in the side with the knife, giving him a serious wound. Stites called for help. Mr. Brooks returned at about this, time, and he and his son assisted Stites to his buggy and removed him to a doctor. Ap-Ipellant was 19 years of age. It was quite-■dark, and there is some suggestion in the evidence that Stites had struck one of his assailants with his flash light. This was denied, however, and there was some testimony that, while they were removing Stites, after he fell, appellant cursed and started to follow him.

The trial began April 26th. Shortly before the trial began appellant filed a motion to sever from Ed Bennett, which motion was granted; the court directing that Bennett be first tried-. Appellant also filed a motion to- sever from Emma Rice, charging that there was not sufficient evidence to convict her, and that she was a material witness, asking that she be put on trial before the appellant. It appears that Emma Rice also filed a similar motion, asking that Ed Bennett and Louie Terrell be tried before she was tried. The court entered an order overruling appellant’s- motion to sever from Emma Rice, but, in effect, granting her motion, stating that to grant appellant’s motion and direct that she be first tried would operate a continuance of the case, she being sick in bed; and in the order the court further recited that Emma Rice and appellant having failed to agree on the order of trial, that the court would direct that appellant be first tried. These orders deprived appellant of no right given him by the statute (article 726) entitling him to a separate trial, and in view of the fact that there was no agreement between him and Emma Rice as to the order of trial, the court, under article 727, was specifically authorized to direct it. Moreover, it appearing that to have directed the trial of Emma Rice first, in advance of that of appellant, would have resulted in a continuance, it was not error to deny it. Stouard v. State, 27 Tex. App. 1, 10 S. W. 442; Williams v. State, 27 Tex. App. 466, 11 S. W. 481; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629; Bruce v. State, 76 Tex. Cr. R. 72, 173 S. W. 301; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899.

Appellant sought a change of venue on the ground of prejudice against him under article 628 of the Code of Criminal Procedure. His application was controverted, and about 20 witnesses testified. There was some conflict of testimony. It appeared, however, that the county had a population of some 50,000, and the county seat about 15,000, and of the witnesses who testified a great preponderance in number gave opinion that there existed no such prejudice as would make it improbable that appellant would receive a fair trial. The finding of the court to that effect, we think, is supported by the preponderance of the evidence,, and in any event there was no such abuse of the discretion vested in the trial judge as would authorize this court to reverse the judgment for failure to change the venue. C. C. P. art. 634; Joy v. State, 57 Tex. Cr. R. 93, 123 S. W. 584; Meyers v. State, 177 S. W. 1167, and other cases listed in Vernon’s C. C. P. p. 342.

Appellant sought a continuance to secure the testimony of three witnesses who resided in the city of Paris, where the case was tried; also to secure the testimony of Emma Rice, whose attendance could not be secured during the trial because of her sickness. The three witnesses residing in Paris were wanted to show that Stites, the injured party, was a powerful man, with a vio-’ lent temper, and a dangerous character. It is shown by the court’s qualification of the bill that two or three of the witnesses named were present at the trial and not put on the stand. Emma Rice was not available to appellant as a witness; she, being indicted as a principal, was precluded from testifying under article 791, C. C. P., as also under article 91, P. C. Stites, the injured party, had lived in the county for 17 years. The action of the trial court in overruling the motion is, we think, sustained by the decisions of this court. At least two, and possibly all, of the witnesses named in the application, who were qualified to testify, are shown by fhe bill to have been present. All of them were wanted to prove the same fact, namely, that the injured party was a powerful man, violent, and a dangerous character. Those who were present were not used. Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Craft v. State, 31 S. W. 367; Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985; Wade v. State, 65 Tex. Cr. R. 125, 144 S. W. 246; Vernon’s C. C. P. p. 323, note 35, and cases listed.

Misconduct of the jury is charged, first, because of the receipt by the jury of evidence in its retirement; and, second, allusion to appellant’s failure to testify. The motion was controverted, and *the jurors called as witnesses. There appears to have been a remark made by one of the jurors that appellant was a boy, and that his punishment should be lighter on that account, to which reply was made, “He was old in ways,” or something like that — “he had been a man a long time,” or something like that. There is some conflict as to whether this , occurred before the verdict was reached. In the course of the deliberations, some of the jurors were for 15 years and some for a lower-term ; they finally agreed on 12 years. We do not think this comes within the rule prohibiting receipt of other testimony. The appellant was, of course, present at the trial, made proof of his age, and thereby the matter of his age was a proper subject for discussion in the deliberations of the jury. Wade v. State, 43 Tex. Cr. R. 212, 63 S. W. 878.

On the matter of comment on his failure to testify, all of the jurors, except one, declared that there was no such reference. One of them declared that the matter was mentioned. The court, in qualifying the bill, states that it did not occur. What took place was a question of fact, necessary to be determined by the, trial judge from the evidence heard on the motion. His finding would not be conclusive; but, under the record, we do not think it should be disturbed. Appellant received a high punishment. This, however, was within the exclusive province of the jury, and in the absence of error in the trial, or evidence tending to show that the verdict was the result of and enhanced ■by passion and prejudice, it ought not to be disturbed on appeal solely on account of the extent of punishment.

The judgment of the lower court is affirmed. 
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