
    TORES v. STATE.
    (No. 3088.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    On Motion for Rehearing, May 6, 1914.)
    1. Criminal Law (§ 1091) — Questions Reviewable — Bill of Exceptions.
    The overruling of a plea in abatement of the indictment on the ground of discrimination in the organization of the grand jury, and the overruling of a motion to quash a special venire on the ground of discrimination in the selection of jurors to prevent a fair trial, cannot .be reviewed on appeal, unless exceptions are reserved and the evidence on the hearing included in the bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Criminal Law (§ 1091) — Questions Reviewable — Bill of Exceptions.
    Where the record of the election of a special judge was regular, the overruling of a plea in abatement of the indictment on the ground that lawyers not practicing in the court participated in the election of the special judge, who was a nonresident of the district, not supported by any evidence, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 1048) — Questions Reviewable — Bill OF EXCEPTIONS.
    Rulings on motions and pleas cannot be reviewed where accused reserved no exception to them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2656, "2657, 2670; Dec. Dig. § 1048.]
    4. Criminal Law (§ 603) — Continuance-Grounds — Absence of Witnesses.
    A continuance on the ground of the absence of a witness was properly denied, where accused did not state the facts the absent witness would prove, nor show the materiality of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    5. Criminal Law (§ 406) — Confession of Accused — Admissibility.
    Statements made by accused to a third person, who had been requested by the sheriff to look out'for accused, are admissible in evidence, where the third person did no act to lead accused to believe that he had authority to arrest him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    6. Ceiminal Law ' (§ 444) — Evidence—Admissibility.
    A county map, made by the land office, is properly received in evidence, though it had been torn in half and put together again.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    7. Criminal Law (§ 1091) — Rulings on Evidence — Review—Bill off Exceptions.
    A bill of exceptions, complaining of the testimony of a witness testifying without questions being propounded to him, must disclose the testimony given, and especially the part deemed objectionable, or the ruling cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2S19, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 1169) — Review—Harmless Error.
    Where a witness testified to facts within his own personal knowledge, the error in permitting him to testify as to the contents of a letter disclosing the same facts, without first proving the loss of the letter, was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    9. Criminal Law (§ Í043) — Conduct off Trial Court — Review.
    Where a bill of exceptions, complaining of a remark of the court that testimony was proper to impeach a witness of accused, was qualified by the court’s explanation,' disclosing that accused objected to the testimony on the ground of irrelevancy, and insisted on knowing the rule under which the evidence could be admitted, the bill as modified presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    10.Criminal Law (§ 1111) — Bill Off Exceptions — Qualifications.
    Accused, accepting and filing a bill of exceptions qualified by the court without excepting to the qualification, is bound thereby.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2894-2896; 1111.] see Criminal Dee. Dig. §
    11. Homicide (§ 45) — Manslaughter—Adequate Cause.
    The statement of decedent that if accused did not leave, decedent would go for an officer to have accused arrested for his misconduct, was not adequate cause to reduce a homicide from murder to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. § 45.]
    12. Criminal Law (§ 1055) — Remarks oe Prosecuting Attorney — Exceptions—Review.
    Where there was no exception showing that the state’s counsel made remarks in regard to which special charges were asked, the fact that such remarks were made was not verified so as to bring the matter before the court for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dec. Dig. § 1055.]
    13.Criminal Law (§ 875) — Verdict—Sufficiency.
    The misspelling of the word “guilty” in a verdict does not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. § 875.]
    14. Criminal Law (§ 951) — Appeai>-Motion for New Trial.
    Accused, who on the overruling of his motion for new trial gave notice in open court of an appeal, could not, without withdrawing the notice of appeal and without leave of court, file an amended motion for new trial.
    [Ed. Note. — For Law, Cent. Dig. $ 951.] other cases, l 2349-2358; see Criminal Dee. Dig. §
    15. Criminal Law (§§ 951, 1156) — Motion for New Trial — Time to File — Discretion of Court.
    Whether an amended motion for new trial would be permitted after the time allowed by law for the filing of a motion for new trial is within the sound discretion of the trial court, and. in the absence of an abuse of discretion, the ruling will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358, 3067-3071; Dec. Dig. §§ 951, 1156.]
    On Motion for Rehearing.
    16. Criminal Law (§ 1070%, New, vol. 11 Key-No. Series) — Appeal—Manner of Perfecting Appeal — Statutes.
    Under Code Or. Proc. 1911, arts. 915, 916, providing that an appeal is taken by giving notice in open court and having the same entered of record, and declaring that the effect of an appeal is to suspend further proceedings in the trial court, until the judgment of the appellate court is received, a notice of appeal, given in open court and entered of record, perfects the appeal, and the jurisdiction of the Court of Criminal Appeals attaches.
    17. Criminal Law (§ 928) — New Triai>-Grounds — Improper Conduct of Jurors.
    That a juror talked over the telephone before the verdict was returned into court, but after agreement, is not, as a matter of law, ground for new trial, especially where the officer in charge of the jury was present and heard what the juror said.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2263-2271; Dee. Dig. § 928.]
    Appeal from District Court, Atascosa County; F. G. Chambliss. Judge.
    Porfirio Tores was convicted of crime, and he appeals.
    Affirmed, and motion for rehearing overruled.
    R. R. Smith, Jas. A. Walton, and S. B. Kennerly, all of Jourdantown, 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
    
    
      
      ffor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

At the time for a regular term of the district court of McMullen county, the Hon. F. G. Chambliss, judge of said court, being ill and unable to attend court, the members of the bar in attendance on said court elected Hon. W. W. Walling special judge of said court, who opened court, impaneled a grand jury in accordance with law, and the said grand jury, at a later day of said term, returned an indictment against appellant. The venue of this cause was then changed to Atascosa county, when and where appellant was tried.

Appellant filed a plea in abatement, alleging that he was a Mexican by nativity, and that he had never taken the oath of allegiance, and was only a resident here and not a citizen of this country; that in the organization of the grand jury Mexican citizens of McCullen county were excluded, and discrimination practiced. This plea did not prove itself, and if any evidence was introduced in support of it, the record before us does not contain it. .Therefore the question is not presented to us in a way we can review the action of the trial court in overruling this plea. Again it is claimed that, in the drawing of the special venire which was summoned in this ease, Mexican citizens of Atascosa county were excluded “for the purpose of preventing this defendant from having a fair and impartial hearing before a jury of his peers.” As before stated, if any evidence was offered in support of this plea and motion, it is not included in the record before us, and for aught this record discloses such plea has no foundation, for citizens of Mexican nativity may have been on the special venire, and may have been on the jury that tried appellant. When these pleas were overruled by the court, exceptions should have been reserved, and in the bills the evidence adduced on the hearing should have been included, that we could determine whether or not there was any merit in such pleas. As the matter is presented to us, there is nothing for us to review.

Appellant also filed a plea in abatement of the indictment, alleging that lawyers who were not practicing lawyers in such court participated in the election of a special judge, and that Judge Walling was not a resident of the Thirty-Sixth judicial district. Again the matter is presented in a way we cannot review it. The plea proves no fact; and, if appellant offered any evidence in support of this plea, the record does not contain it. The record of the election of Judge Walling is regular in every respect.

Appellant also asked that Alejandro Sarli, who was also indicted, charged with guilty participation in this offense, be first tried, when the court dismissed the case against Sarli, thus rendering him a competent witness, and he did testify at appellant’s request on this trial.

While the above motions and pleas were filed, yet appellant reserved no exception to the action of the court in ruling on either of them. So the matters are not properly presented to this court for us to act on them.

In the first bill in the record appellant contends that the court erred in overruling his motion for a continuance on account of the absence of several witnesses. He states that he desired the attendance of Dr. Jameson, stating that this doctor was the first person to arrive at the scene of the homicide, and “that this defendant nor his attorneys have ever been able to learn what was the condition of the body and its surroundings at said time, as to arms and otherwise, the nature of wounds, if any, and whether or not there were weapons on or around the body of the deceased.” If appellant shot deceased under the circumstances disclosed by this record, the condition of the body and its surroundings, the nature of the wounds, and whether or not deceased had weapons would not be material to his defense. There is in the motion for continuance, nor in the evidence adduced on the trial, no contention that deceased was attempting to use a weapon, or appellant believed he was about to do so. It is true that appellant was not required to testify as a witness on the trial, yet in his application for a continuance he must state such facts as could or would show the ma-terialty of the absent testimony. He states no, fact that he can or expects to prove by this witness. He states no fact occurring at the time of the homicide that the testimony of the doctor, whatever it might be, would be material to his defense. Two of the witnesses named in the application attended the trial, while for a third no process had been issued, and as to the others, he states no facts that they would testify to — -in no way shows that they would, or he expected to, prove by them anything that would or could be material to his defense; consequently the court did not err in overruling the motion.

Polito Vasquez was not an officer of the law; and, although the sheriff had requested him to look out for appellant, appellant was not aware of this fact when he went to the camp of Vasquez, and made the statements he did make. Vasquez not having taken charge of him at the time the statements were made, and did no act to lead appellant to believe or suspicion that he intended to do so, or had authority to do so, the court did not err in admitting this evidence. Hiles v. State, 163 S. W. 717, and cases there cited.

As bill No. 4 does not show what facts appellant expected to prove by the witness O. G. Bass, the court did not err in the premises. The bill shows that the rule had been invoked, and Mr. Bass had been in the courtroom, and appellant stated: “We are not going to prove any facts by him; it is expert testimony” — and does not disclose upon what issue in the case the “expert testimony” would have a bearing, nor upon what issue he expected to testify.

Another bill shows that “the state offered in evidence two pieces of a map fastened onto a piece of cloth or paper, purporting to be a map of McMullen county, made in 1888 by the Commissioner of the General Band Office of the State of Texas, with unidentified lines thereon purporting to indicate the location of the town of Eowlerton and other points, to which defendant objected because said instrument was not a whole and complete map, but several pieces of paper tacked on a piece of paper, that said several pieces of paper were so disconnected as to leave nothing to show that the purported map was not half of one map and half of another, and that the same was not so identified as to make it properly admissible for the purpose of proving any fact in dispute.” The court in approving the bill states that the map had been torn in half and placed back together, and it is shown that it was a map of McMullen county, made by the Land Office. Under the recitations of this bill herein copied no error is disclosed in the ruling of the court.

Several bills were taken to the testimony of Mr. Erank H. Burmeister. If one bill it is shown that this witness was permitted to testify, being a lawyer in the case, without questions being propounded to him. As this bill does not disclose any testimony he gave on the trial, of course it is impossible for us to determine that appellant was in any manner injured thereby. To bring the matter before us for review, the bill should disclose the testimony he gave, especially that portion which appellant deemed objectionable. In two other bills it is shown that Mr. Burmeister was permitted to testify that he had received a letter informing him that he had been employed by the commissioners’ court to run the boundary line of McMullen county, because the work of Mr. Goff and Mr. White had been condemned, and that property up to the time testified to by him was taxed by McMullen county. The court in approving these bills stated that Burmeister testified, independently of any letter, that he was under contract with McMullen county to do this work, and that the work had been condemned; that he had served as county surveyor for a number of years, and knew the facts testified to by him. Certainly any man can testify he had been employed to do a certain character of work by the county, and had done the work. These are facts within his personal knowledge; and, while the contents of the letter were not admissible in evidence,' without proving its loss, yet, as the witness testified in addition thereto from personal information and knowledge to the same facts, the bill presents no reversible error. The bills do not disclose in any way the materiality of the testimony, or how such testimony could in any wise be hurtful to appellant.

In the bill objecting to the testimony of Mr. Holmes, no portion of his testimony is given, and no fact testified to by him is stated; consequently there is nothing presented for review. However, we will state the court did not err in permitting him to testify, for he had not been in the courtroom, nor violated any rule of the court, and his testimony was pertinent and germane to the issues involved in this case.

In the last bill, relating to the in* troduction of testimony, it is shown that when the witness Humphries was testifying, appellant objected to certain portions of his testimony, and the court said: “It goes to the impeachment of your witness,” to which remark appellant objected. The court in approving the bill states, “Approved, with the-explanation that defendant was objecting to the testimony on the ground of irrelevancy, and insisting on knowing the rule under which such evidence could be admitted.” As-thus qualified, the bill presents no error, and, appellant having accepted and filed the bill without excepting to such qualification, he is bound thereby.

There is no evidence suggesting that appellant “shot at Ike Hill for the purpose of scaring him” ; consequently the court did not err in refusing the special charge presenting this issue. Neither did the evidence adduced on this trial call for a charge on self-defense. There is no testimony that deceased assaulted appellant, or appellant believed that he was in any danger from Hill. All that deceased said was that if he, appellant, did no't leave, he, deceased, would go and get an officer, when appellant shot him. The issue of manslaughter is not raised by the testimony. It is not even shown that there was anger or rage, and the only ground for resentment is that deceased told him he was going to town for an officer to have him arrested on account of his, appellant’s, misconduct. This would not be adequate cause in law. There is no exception showing that state’s counsel used the remarks in regard to which special charges were asked; therefore, the fact that such remarks were used is not verified in a way to-bring the matter before us for review.

The misspelling of the word “guilty” in the verdict does not vitiate it. The verdict was certain and sufficient upon which to-enter judgment.

It appears that when the verdict of the jury was returned, appellant’s counsel filed a motion asking that they be given additional time to that allowed by law in which to file their motion for new trial, on grounds stated in the motion. This was by the court granted. When the motion was filed it was overruled, and appellant gave notice of appeal to this court. Subsequent to this time appellant filed an amended motion for a new trial, which the court by order entered struck from the record, on the ground it came too late, and no leave had been granted appellant to file it, to which action of the court appellant excepted, and presents the question properly in a bill of exceptions. We think appellant is correct in contending that the trial court has control over its judgments during the term at which such judgment was rendered, and, had the court thought proper to do so, upon appellant withdrawing his notice of appeal, the court could have set aside the judgment overruling the motion for new trial, granted leave to file an amended motion, considered same, and tools sucli action as tlie trial court deemed proper; and, if tide amended motion was overruled, by again giving notice of appeal, appellant could bave prosecuted an appeal to tbis court. But appellant did not take sueb action. After bis motion for new trial bad been overruled and notice of appeal given to tbis court, without leave of tbe court appellant proceeds to file with tbe clerk wbat be terms an amended motion for new trial, in wbicb be does not ask leave to withdraw the notice of appeal theretofore given, nor in tbe motion does be ask that tbe order overruling tbe motion for a new trial be set aside and permission be granted to file an amended motion for a new trial. As thus presented, tbe court did not err in striking tbe motion from tbe record, as be had granted no leave to file it. But aside from tbis, tbe amended motion not being filed within tbe time allowed by law, and tbe court not having considered same, we hardly think we would be authorized to bold be abused bis discretion.

Whether another motion for a new trial will be permitted to be filed after tbe time allowed by law has elapsed is a matter within tbe sound discretion of the trial court. He can read tbe motion and application; and, if in bis opinion be deems that no matter is presented which would authorize him to disturb tbe judgment, be can decline to permit it to be filed, and tbe only question then presented to us, is, From grounds and allegations contained in the motion, is it shown that be has abused tbe discretion confided to him by law? In tbis case we do not think any such showing is made, and the judgment is therefore affirmed.

On Motion for Rehearing.

The motion for rehearing in tbis case was not received by the clerk until the 27th day of April, four days after tbe mandate bad' issued; but, inasmuch as tbe death penalty was assessed, we ordered tbe mandate recalled, and permitted tbe filing of tbe motion for rehearing, for tbe members of tbis court, like all other citizens of Texas, do not desire tbis extreme penalty inflicted unless tbe evidence justifies and tbe record discloses that tbe appellant has bad a fair and impartial trial, and there is no error in tbe record that could bave injuriously affected appellant’s rights.

We bave carefully reviewed the record, and tbe first contention of appellant is that tbe court erred in bolding that tbe jurisdiction' of tbis court attached upon giving notice of appeal and entry made thereof in tbe minutes, and be cites us to tbe cases of Wood v. Wheeler, 7 Tex. 13, Puckett v. Reed, 37 Tex. 308, Blum v. Wettermark, 58 Tex. 125, and Freeman on Judgments, in wbicb it is held that courts bave jurisdiction over their judgments until tbe end of the term at which such judgment was rendered. These authorities are in no wise in conflict with tbe original opinion in tbis case, but appellant overlooks tbe fact that notice of appeal does not confer jurisdiction on the appellate court in civil cases, but tbis jurisdiction is conferred by giving the bond required by law after notice of appeal has been given and entered of record. Although one in a civil case might give notice of appeal and have it entered of record, yet if be failed to give the bond required by law, or file a pauper’s oath in lieu thereof, tbe notice of appeal would not stay an execution in a civil case, nor would tbe jurisdiction of tbe appellate-court attach until tbe appeal bond was filed. However, it is different in criminal cases— tbe jurisdiction of tbis court attaches and the appeal is perfected when notice of appeal is given in open court and that notice entered of record. Article 915 of the Code of Criminal Procedure provides that “an appeal is taken by giving notice thereof in open court, and having tbe same entered of record,” and article 916 provides that “tbe effect of an appeal is to suspend and arrest all further proceedings in the case in tbe court in which the-conviction was bad, until the judgment of tbe appellate court is received by tbe court from wbicb tbe appeal is taken.” Tbis question is fully discussed in Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668, Hinman v. State, 54 Tex. Cr. R. 434, 113 S. W. 280, and Nichols v. State, 55 Tex. Cr. R. 211, 115 S. W. 1196, and cases cited.

Appellant’s motion for a new trial having been overruled, notice of appeal given and entered of record, tbe trial court was without authority to make any other orders in the-case, except in those cases wherein tbe statute specially authorizes it to be done, unless appellant should withdraw his notice of appeal ; then and not till then would tbe trial court in criminal oases be authorized to give-permission to file an amended motion for a new trial and consider same, and if tbe court should then overrule tbe motion, appellant could again give notice of appeal. As before said, as tbe trial court bad overruled tbe motion for new trial, notice of appeal given and entered of record prior to the time it was sought to file an amended motion, a paper filed with the clerk, without permission of tbe court, and without withdrawing tbe notice of appeal, would not be a legal filing, and before-tbe court would be authorized to act thereon, tbe notice of appeal must be withdrawn, as tbe jurisdiction of this court attached .when, notice of appeal was given and entry thereof made of record, for tbe jurisdiction of tbis court when it attaches is exclusive. During tbe term notice of appeal can be withdrawn by the appellant, and reinvest the district court with jurisdiction, but even tbis cannot be done after tbe end of tbe term.

While tbe amended motion placed with tbe clerk does recite “that, leave of tbe court being first had and obtained, he files tbis amended application for a new trial,” yet tbe indorsement of tbe court on tbe application shows no such leave was granted, for he says: “This instrument was first presented to the court on the 6th day of December (five days after it bears file marks), and that the instrument was not placed with the clerk until after the motion for new trial had been overruled, exception taken, and notice of appeal regularly entered, and the court declined to consider the instrument for any purpose as coming too late.” We cannot say the court erred in this matter. No one except appellant could withdraw his notice of appeal entered of record when the original motion for new trial was overruled, and he at no time made this motion nor offered to do so.

However, as stated in the original opinion, we have read the affidavit which is sworn to before one of appellant’s attorneys, and this was improper, and we do not think it presents grounds as to the conduct of the jury which would authorize us to hold that the court abused his discretion under the circumstances in declining to entertain the amended motion, even if notice of appeal had been withdrawn. The affidavit does not show that the talking over the telephone took place before the jury had agreed on a verdict; only that the talking took place before the verdict was returned into court, and it is further shown that the, officer in charge of the jury was present when the conversation took place, and heard all the juror said. This should not have been permitted; but, as the matter is presented to us, we cannot review the action of the trial court.

The other grounds in the motion were all passed on in the original opinion, and we think correctly so.

The motion for rehearing is overruled.  