
    GIRTMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied March 25, 1914.)
    1. Criminal Law (§ 666%) — Trial—Conference with Witnesses — Exclusion.
    It was not error for the court, after selecting the jury, but before they were sworn to try the cause or the indictment read and before defendant had pleaded, to permit -the district attorney to confer with the witnesses for the state collectively in a room adjacent to the courtroom and after this to swear all the witnesses and place them under the rule.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1576; Dec. Dig. § 666%-]
    2. Criminal Law (§ 476) — Evidence—Opinion— Cause of Injury.
    It was proper to permit a physician who made a post mortem examination of decedent to testify that the wounds on deceased’s head •could have been made with a 45-ealiber pistol used as a club; the state having introduced in evidence such a pistol, which was shown and admitted to belong to defendant and to have been used by him on the night of the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dee. Dig. § 476.]
    3. Criminal Law (§ 366*) — Evidence — Res Gestae.
    Where decedent on the same night, and but a few minutes prior to the fatal difficulty in which he was killed, went to D. and requested that he interfere in a difficulty then going on, and told him that defendant and certain others were planning to kill decedent, evidence of decedent’s statement to D. was admissible as res gestee.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 306.*]
    4. Witnesses (§ 337*) — Cross-examination-Credibility of Accused.
    Where accused testified in his own behalf, the court properly permitted the district attorney to ask him on cross-examination if he were not then under indictment for assault with intent to murder.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113,1129-1132, 1140-1142,1146-1148; Dec. Dig. § 337.]
    5. Criminal Law (§ 644) — Trial—Acts of Officers.
    It was not error for the court, while defendant was being examined as a witness in his own behalf, to permit the district attorney and sheriff or deputy sheriff to hold a consultation in the presence of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 644.*]
    6.Criminal Law (§ 406) — Statements of Accused.
    Statements made by accused to the sheriff the next morning after the homicide, before accused had been arrested and while the sheriff was making an investigation into the facts, were admissible against him.
    []pd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    7. Criminal Law (§ 1120 ) — Appeal—Bill of Exceptions.
    Exclusion of evidence will not be reviewed, where the bill'of exceptions does not show what answer the witness would have given had the objection been overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    8.Homicide (§ 309) — Instructions — Manslaughter.
    ■ Where the court, in submitting manslaughter, charged that if the jury believed beyond a reasonable doubt that defendant and no other person, with a deadly weapon, in sudden passion arising from an adequate cause, did beat, wound, and bruise deceased, and did inflict the fatal injury, and thereby kill deceased, to find him guilty of manslaughter, and in connection therewith gave a proper charge on circumstantial evidence, accused was not prejudiced by the court’s failure to give the converse of the proposition; the court having also property charged correctly on the question of assault with a deadly weapon.-
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    9. Criminal Law (§ 825) — Trial—Requests to Charge.
    Where the court did not submit the offenses of manslaughter or aggravated assault as fully as accused desired, it was his duty to request further instructions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    10. Homicide (§ 340*) — Appeaj>-Prejudice.
    Where the facts did not justify the submission of aggravated assault, defendant’s complaint of the court’s charge on that offense, even if correct, would not present reversible error.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    11. Homicide (§ 268) — Deadly Weapon — Question for Jury.
    Where the state claimed that defendant killed deceased with a 45-caliber pistol used as a club, which was offered in evidence, identified, and admitted to belong to accused, the court having properly defined the term “deadly weapon,” whether the pistol as so used was a deadly weapon was for the jury.
    [Ed. Note. — For other cases, see Himieide, Cent. Dig. § 562; Dee. Dig. § 268.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Paris Girtman was convicted of manslaughter, and he appeals.
    Affirmed.
    J. E. Edmundson and Duncan & Duncan, all of Bellville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       E’or other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST,- P. J.

From a conviction for manslaughter on a trial for murder, appellant has appealed.

The record shows, by appellant’s first bill of exception, that prior to the announcement of ready the district attorney requested the court for time to confer with the witnesses and arrange the order of testimony. Whereupon the court advised him that he would he given the necessary time after the selection of the jury; that after the jury was selected, and before they were sworn to try the case, or the indictment read, and before appellant had pleaded, the court permitted the district attorney to confer with the witnesses by taking them collectively into a room adjacent to the courtroom, and where each and all of them could hear the testimony of each; that after this, and before any of the witnesses were placed on the stand, all of the witnesses for both sides were sworn and placed under the rule. The appellant objected to this action of the court in permitting the district attorney to thus confer with these witnesses. On what ground is not stated. The bill shows no error. This court, in a uniform line of decisions, has all the time held that such matters must be left to the sound discretion of the trial judge, and, unless the bill shows that this discretion has been abused to the injury of appellant, this court will not reverse. There is nothing in this whole record which indicates that this action of the court and the district attorney in any way injured appellant. The contradiction of one another by the witnesses is more than usual, and there is nothing that tends to show that by the district attorney having them together and going over the evidence in any way caused them to swear to the same thing. See cases cited in section 767, White’s Ann. O. O. P.

The deceased, “old man Allen Reed,” as he is called by the witnesses, is shown to have been killed on the night of February 15, 1918. Dr. Steek, an active practicing physician, made an examination of his body the next morning. His testimony shows, without contradiction that his head and face was beaten in a most cruel and brutal manner. The doctor showed: That there was an irregular cut wound back of the right ear of deceased of the soft tissue about a half inch long. That here the skull was fractured, and he passed a probe downwards toward the mastoid process between the two plates of the bone about iy2 inches. That above the right ear was a lineal wound of the scalp iy2 inches long from front backwards, extending up and down this way (illustrating). That just back of the top of the head was a scalp wound describing about a half of á circle, and in the center of this was a small part of skin in tact. This wound looked as though it had been made by the end of a hollow instrument. That there were several jagged cuts on the nose — one down the center 1 y2 inches long. That there were several on. the right side of the nose, one of which was about 1 y2 inches long. That the nasal bones were broken, the inner side of both orbits broken, as well as both the malar bones, ánd the superior maxillary bone or upper jaw bone was broken transversely about the lower part of the nasal fossa. Several of the upper teeth on the right side were broken loose en masse; that is, there were three or four teeth that hung together in one piece. The bone and whole piece was loose — -broken. That there was a long somewhat circular lacerated wound through the right brow, and a small cut wound on the left upper lid. The lobe of the left ear was cut through. There was a lacerated wound on the left side of the top of the head, which looked as if made with a blunt instrument. This was more in the nature of being broken than cut. It was 2y2 inches long from the front backward and extended through the scalp. There was a scalp wound just below this one, 1 y2 inches long, running vertically. There were several abrasions on the left arm which looked like a puncture; looked as if they were struck at an angle. There was an irregular shaped cut on the flexor side of his left wrist, an abrasion or skinned place on the left leg about the middle thereof, 3 inches long, just to the outside of the shin bone, an abrasion just below the left knee cap, also a skin wound. That these wounds were fatal, and that after those on the head were inflicted the deceased could not have gone anywhere but would have dropped. That the wounds on the head could have been made with a 45-ealiber pistol used as a club, by holding it at either end.

The court did not err in permitting Dr. Steck, as shown above, to testify that said wounds on the deceased’s head could have been made with a 45-caliber pistol used as a club. The state produced, identified, and introduced in evidence a 45-cali-ber pistol which was shown and admitted to have been appellant’s pistol and had by him that night at the time deceased was killed, with blood still on it, though after the killing he is shown to have attempted to wash all the blood off. The pistol was also shown to have been sprung, evidently caused by being used as a club on the head of deceased, and also that the handle thereof was broken and shattered at the time.

The evidence is quite conflicting. Many witnesses, negroes, who were at the scene of the killing, as well as appellant, testified. Notwithstanding the conflicting testimony, from the whole of it, it is clear that a sort of general fight between the deceased and others began at appellant’s house where deceased lived, and that at first the deceased, with a tin, or small penknife, cut, slightly on the arm, one of the negro women who was engaged in the fight with him; that thereupon others became engaged in the fight, or were attempting to prevent it, when some three of the parties either fell or were thrown out of the door of the house, the fight it sée'ms beginning in the bouse. They were separated or separated themselves. One Fax Williams, who was engaged in the fight, or in. attempting to separate the parties, one Or the- other; after getting up or being taken up from the ground, started to the wood pile to procure an ax with which, it seems, he intended to hill the deceased or defend the women with whom deceased was engaged in the fight. Thereupon the deceased started to the house of the landlord, Mr. Diemer, who lived just 200 yards away, announcing that he was going after a gun to protect himself or hill said Williams. Williams was intercepted with the ax, and it was tahen away from him and placed under the bed of appellant’s wife, where it remained and was not in any way used in the fight or otherwise in connection therewith. Deceased immediately proceeded to Mr. Diemer’s house. This was about midnight. He called Mr. Diemer out, ashed, him to go down and tahe appellant’s pistol away from him and mahe Fax Williams leave the place; that they were fixing to hill him. He repeated this request at the time three or four times, and he then told Diemer that if he (Diemer) would not protect him to loan him his gun and he would protect himself. It seems Mr. Diemer did not tahe the matter seriously and did not respond to the deceased’s request. The deceased thereupon immediately went bach to appellant’s house, where he lived, and the fight was continued or renewed. In the meantime, while deceased had gone to Mr. Diemer’s, Fax Williams left the scene and went to his home 1% miles distant and remained and did not hnow of the hilling until the next day. Diemer did not hnow of it until the next day. Diemer further testified that in four, six, or eight minutes — -“a very short while after he (deceased) left” — he heard a pistol shot at appellant’s house. The testimony otherwise clearly shows that appellant- fired this shot at the deceased, but missed him. The testimony also otherwise shows, in effect, that all the other negroes at appellant’s house took refuge therein, leaving only the deceased and the appellant out in the yard; that when deceased returned from Diemer’s and the fight was continued, or renewed, he went into his room and procured a razor and was either attempting to fight or protecting himself therewith; and that he at that time cut another one of the negro women on the arm and she fled the scene taking refuge in the house. It was just after this that appellant fired the shot at the deceased, and from all the evidence it is evident and certain that the appellant, after missing him with this shot, called to deceased to drop the razor. The deceased replied that he had already done so and, holding up his hands, exhibiting them, and exclaiming that he had- already dropped the razor and did not then have it. The razor was found the next morning in the yard near where the body of the deceased was removed-from. It was then that this brutal and cruel-beating and killing of the deceased by appellant, with his pistol used as a club, occurred.

Appellant objected to the testimony of Diemer as to what deceased said to him, in substance: To come up there and take appellant’s pistol away from him and make Fax Williams leave; that they were fixing to kill him, claiming that said testimony was not admissible as res gestae. The court correctly held that it was admissible as res gestse. The testimony shows that it was a, part of the fight between the parties, and that the whole fight was but a continuous one. The authorities are uniform and numerous in holding such testimony was admissible as res geste. We deem it unnecessary, to discuss them. We merely cite some of them. Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; Wiseman v. State, 32 Tex. Cr. R. 454, 24 S. W. 413; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Johnson v. State, 30 Tex. App. 420, 17 S. W. 1070, 28 Am. St. Rep. 930; Tooney v. State, 8 Tex. App. 452; Elmore v. State, 78 S. W. 520; Stanley v. State, 44 S. W. 519; Ency. of Ev. p. 615; Renn v. State, 143 S. W. 168.

Appellant testified. On cross-examination, for the purpose of affecting his credibility, the court correctly permitted the district attorney to ask him if he was not then under indictment for a felony — for an assault with intent to murder. See section 868, Branch’s Orim. Law, where a large number’ of cases are cited.

Appellant complains that while he was on the stand testifying the district attor-’ ney and sheriff, and deputy sheriff, were holding consultations in the presence of the jury. Appellant’s objection to this was that, unless the sheriff or deputy were ejnployed in the ease, it prejudiced and influenced the jury against him in using the sheriff’s influence in that way. This shows no error whatever.

The next morning after the deceased was killed, the sheriff was informed thereof and went out to appellant’s for the purpose of making an investigation, and did so. Among-others, he found appellant there and talked with him about the killing, trying to find out the facts. The sheriff, in testifying, told what appellant said to him on that occasion. His testimony shows clearly that at the time appellant then talked to the sheriff, no arrest had be.en made, and that appellant had not beén arrested. How long afterwards before he was arrested is not disclosed. Clearly what he then told the sheriff was admissible against him; his objections being that his statements were made after he was arrested. The facts show that the statements he made were made before he was arrested as shown above. Hilcher v. State, 60 Tex. Cr. R. 182, 131 S. W. 592; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Cordes v. State, 54 Tex. Cr. R. 210, 112 S. W. 943; Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558; Elsworth v. State, 54 Tex. Cr. R. 38, 111 S. W. 963; Grant v. State, 56 Tex. Cr. R. 415, 120 S. W. 481; Hiles v. State, 163 S. W. 717, recently decided, but not yet officially reported.

Appellant, by another bill, complains that the court would not permit him to ask the witness Palm, sheriff, further questions as to what Pax Williams told him. The state objected because what was sought by the questions was hearsay. The court sustained the state’s objection on that ground. The bill does not disclose what answer the witness would have made and does not show in any way that the court’s ruling was wrong.

The court charged the jury on murder in the first and second degree, manslaughter, and aggravated assault. Appellant complained of the court’s charge on manslaughter and aggravated assault. The charge on manslaughter clearly is in accordance with the statute on the subject. It is unnecessary to copy or further state it. In submitting manslaughter for a finding, he told the jury, in effect, that if they believed beyond a reasonable doubt that the appellant and no other person, with a deadly weapon, in a sudden passion arising from an adequate cause, did on the date alleged, and as alleged, beat, wound, and bruise the deceased, and did inflict the fatal injury, and thereby kill deceased, to find him guilty of manslaughter and assess his punishment. In this connection the court gave a correct charge on circumstantial evidence. Appellant claims that the court should have given the converse of the proposition he did submit, to the effect that if the instrument or weapon by which the fatal injury was inflicted was not a deadly weapon, or the manner of its use was not calculated to produce death, then the law presumes that death was not intended, and if they so find to acquit appellant of manslaughter. The court did charge the jury correctly what was a deadly weapon. It also correctly told the jury that the instrument or means by which a homicide is committed are to be taken into consideration in charging the intent of the -party offending. IP the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears. The court also charged that the burden of proof was upon the state and the presumption of innocence prescribed by the statute. Also, the reasonable doubt between the different degrees of homicide and manslaughter, and “if you find from the evidence, beyond a reasonable doubt, that the defendant is guilty of some grade of offense less .than murder, but you have a reasonable doubt as to whether the offense, if any, is manslaughter or aggravated assault, thep you must give the defendant the benefit of the doubt, and in such case, if you find him guilty,it could not be of a higher grade than , aggravated assault.” The charge of the court was correct. Appellant requested no special charge on the subject and made no objection to it at the time it was given. If it did hot submit the question as fully as appellant now claims, it was his duty to request at the time additional instructions submitting such matter for a finding. His claim that there was testimony which might have tended to show that Fax Williams, and' not appellant, killed the deceased, and that this should have been submitted to the jury by the court’s charge, is fully met by the fact that the court in the charge, not only expressly required the jury to believe that appellant committed the homicide, but that no other person did so. Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451.

Our statute (P. C. art. 1148) prescribes: “If an injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder, according to the facts of the case.” Again: “Where the circumstances attending a homicide show an evil or cruel disposition, or that it was the design of the person offending to kill, he is deemed guilty of mur-, der or manslaughter, according to the other facts of the case, though the instrument or means used may not in their nature be such as to produce death ordinarily.” P. C. art, 1150. Upon a careful and thorough study of the facts of this case, we are of the opinion that aggravated assault was not in the case and should not have been submitted. But the court did submit it, and, of course, that was to the appellant’s advantage and not to his disadvantage. So that appellant’s complaint of the court’s charge on aggravated assault, even if correct, would not present reversible error. But his complaints of the charge on this point are met by the charge itself, taken as a whole. Among his complaints is one that the court did not submit P. C. art. 1147. An inspection of the charge shows that the court did give this article precisely, in his charge to the jury. And, as shown above, he told the jury correctly what was a deadly weapon.

Appellant’s pistol with which the killing was done, used as a club, was identified, admitted to be his, and introduced before the jury. They had it, saw it, and examined it, and under the circumstances they clearly could tell whether or not, from the manner of its use, that it was a deadly weapon, and unquestionably the cruel manner of its ¡use showed appellant’s intention to kill, as he did. While denying the killing, he did hot pretend to testify that he did not intend to kill. Luttrell v. State, 157 S. W. 162; Crutchfield v. State, 152 S. W. 1053; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Branch’s Crim. Law, § 516, and cases cited by him.

The judgment will be affirmed.  