
    HERRERA v. STATE.
    (No. 3306.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1.Homicide (§ 8) — Refusal of Instructions.
    In a prosecution for a murder committed before July 1, 1913, when the act approved April 3, 1913, repealing the statutes dividing murder into first and second degrees became effective, it was error to refuse a requested instruction defining express malice and implied malice and stating the punishment for a killing on implied malice.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    2. Criminal Law (§ 844) — Appeal—Failure to Instruct — Sufficiency of Objection.
    An objection that a charge was erroneous for failure to set forth the law of murder in the second degree since the evidence showed that deceased assaulted defendant and that the killing was without premeditation or forethought, when considered together with a requested instruction defining express malice and implied malice, sufficiently called the court’s attention to the fact that he had failed to define implied malice.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2025; Dec. Dig. § 844.]
    3. Homicide (§ 8) — Trial — Procedure — “Election.”
    In a prosecution for a murder committed prior to July 1, 1913, when Act April 3, 1913, repealing the statutes dividing murder into first and second degree, went into effect, an objection that the charge was erroneous for failure to set forth the law of murder in the second degree, when considered together with a requested instruction defining express malice and implied malice, constituted an “election” by defendant to be tried under the law existing when the offense was committed, within Pen. Code 1911, art. 15, providing that, when the penalty for an offense is altered by a subsequent law, “the defendant shall be punished under such last enactment unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.
    
    For other definitions, see Words and Phrases, First and Second Series, Election.]
    4. Homicide (§ 309) — Instruction on Manslaughter-Evidence.
    Where there was evidence that just before the killing deceased struck defendant a (blow in the face and pursued him with blows, 'a requested instruction defining manslaughter was improperly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Criminal Law (§ 814) — Instructions— Circumstantial Evidence.
    Where one witness identified defendant as the person who fired the fatal shot, an instruction on circumstantial evidence was properly refused.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    6. Homicide (§ 142) — Indictment — Variance.
    That the indictment charged the commission of the offense on or about March 19th, and the evidence showed that the killing took place on March 29th, presented no material variance.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.]
    7. Criminal Law (§§ 419, 420) — Evidence— Impeachment of Witness not Used.
    Evidence to show that a witness who, though present in court, was not used, had identified a person other than defendant as the person who committed the homicide, was properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    8. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    Hearsay evidence in regard to the arrest of a third person as the man who killed deceased was properly excluded, where the witness who identified defendant as the person who fired the fatal shot testified that she had at one time caused the arrest of such third person.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    9. Criminal Law (§ 1118) — Appeal—Presentation for Review — Application for Continuance.
    The refusal of an application for a continuance in a criminal case could not be considered on appeal, where the application was not in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Augustine Herrera was convicted of murder, and appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otfrer cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted for murder, and his punishment assessed at imprisonment in the penitentiary for life. .

The state’s evidence would have the killing take place under the following circumstances: Mattie Dyson, testified that Alonzo Watkins drove up in an automobile, got out, and went into a chophouse, leaving his overcoat in the automobile; that a Mexican approached the automobile and took out the overcoat, starting off with it. Just at this time Watkins came out, and she informed him that a Mexican had taken his overcoat out of the automobile, and pointed out the Mexican. Watkins walked up to the Mexican and asked: “Whose coat is that you have got?” the Mexican replying, “It is mine;”' when Watkins said, “I beg your pardon, it is mine;” and then the Mexican handed the coat to Watkins. She identifies appellant as this Mexican. The state’s testimony then shows that the deceased, an officer in citizen’s clothing, then stepped up and placed his hand on the Mexican’s shoulder, who shot and killed the officer.

'Defendant, by the testimony offered in his behalf, would deny that he was this Mexican, and undertook to prove an alibi by showing that he was in Austin at or about this time. He then offered testimony that the killing took place under the following circumstances, whoever killed the officer: Watkins testifies, as the Mexican handed him the coat, the officer stepped up and struck the Mexican in the face and he staggered back; that the officer continued to strike him, striking him several blows, when the Mexican pulled the pistol and shot. The evidence further shows that the Mexican who did the killing was a small, slender man, weighing about 130 pounds, while the policeman was a “large man, well built, and a powerful man, weighing from 170 to 180 pounds, and was a very strong man.”

The offense is proven to have been committed March 29, 1913. The law defining the offense murder so as to embrace a killing both upon express and implied malice, and repealing the statutes dividing murder into the first and second degree — first degree upon express malice, and second degree upon implied malice — was not approved until April 3, 1913, and did not go into effect until July 1, 1913. Therefore appellant was entitled to have the jury instructed the law as it existed at the time of the killing. The court did not define express malice and implied malice, nor instruct the jury that a killing upon implied malice was punishable only by imprisonment in the penitentiary for any term of years not less than five. Appellant presented to the court a special charge requesting him to so instruct the jury, which charge was by the court refused. In this the court erred.

In the record there is what is termed objections to the charge as given b'y the court, in which the following objection was urged:

“Said charge is in error because it does not set forth the law of murder in the second degree, the evidence sustaining an issue of this character in that defendant had never seen deceased' before the time of the killing. They were utter strangers to each other, and the first notice that defendant had of the deceased was an unprovoked blow in the face wherein he was staggered back, he knew nothing' of the assault and battery until he was struck in the face, and the evidence did not show any knowledge of deceased or of an intended assault, and there was no premeditation or . forethought as set forth in the law to make the offense one of murder in the first degree; and the charge of court is in error in not charging second degree murder.”

This objection, together with the special charge requested by appellant, sufficiently called the attention of the court to the fact that he had failed to define implied malice and instruct the jury in regard thereto, and was also an election by appellant to be tried under the law as it existed at the time of the commission of the alleged offense. Pen. Code 1911, arts. 15, 17, and 18.

Again, appellant prepared a special charge defining manslaughter, and asked that it be given. In the objections made before the charge was read to the jury, appellant objected to the charge because the court failed to submit the issue of manslaughter, reciting that portion of the evidence which he deemed raised the issue. According to the evidence offered by appellant, at the time'the coat was handed to Watkins, the officer, a large heavy man, struck' the Mexican a blow in the face without saying a word, and, when the blow staggered the Mexican back, he pursued, continuing to rain blows on him. Our statute declares that an assault causing pain shall be deemed adequate cause to reduce an offense to manslaughter. The court should ■ have so instructed the jury, and if they found that the officer did assault the Mexican, without provocation, and that the blow or blows caused pain, give them the privilege of finding appellant guilty of this grade of offense.

As Mattie Dyson identified appellant as tlie person wlio fired tlie fatal shot, tlie court did not err in refusing tlie charge on circumstantial evidence.

Tlie fact that the indictment charged the offense to have been committed on or about March 10th, while the evidence shows the killing took place on March 29th, presents no variance, and the court did not err in so holding.

Mattie Lee Avery was not introduced as a witness by either the state or defendant; therefore the. court ruled properly in excluding the testimony of the witness Cisneros,, who would have testified that Mattie Lee Avery identified another person than appellant as the person who killed the officer. If appellant desired to prove that fact, Mattie Lee Avery was in attendance on court.

As Mattie Dyson testified that she at one time caused the arrest of Augustine Gonzales as the man who killed deceased, there was no error in excluding the hearsay testimony in regard to that arrest.

The application for a continuance is not in the record; consequently we cannot review this ruling of the court. If appellant desires the attendance of the witness Daniel Cruz, he will have an opportunity to secure his attendance on another trial.

The other bills in the record present no error; but, on account of the matters here-inbefore discussed, the judgment is reversed and the cause remanded.  