
    WARD v. STATE.
    
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1911.)
    1. Ceiminal Law (§ 1091) — Bills of Exception — 'Sufficiency.
    Bills of exception to the admission of testimony are insufficient if they do not show within themselves the evidence in the case. .
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2832; Dec. Dig. § 1091.)
    2. Homicide (§§ 166, 174) — Assault with Intent to Murder — Evidence — Admissibility.
    In a trial for assault upon accused’s wife with intent to murder, accused pleading an alibi, the state was properly permitted to show that they had separated twice, and had continuously quarreled and fought, some time before the shooting; that accused had charged her with intimacy with other men; that some time before the shooting accused had struck her with a piece of board; and that shoes found near accused’s bed fitted tracks found at the place of the shooting.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. §§ 166, 174.]
    3. Criminal Law (§ 1043) — Instructions— Objections — Sufficiency.
    Objections that instructions do not state the law are material error, or tend to injure accused’s rights, etc., are too general to be considered.
    [Ed. Note. — Ftor other cases, see Criminal Law, 'Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    4. Criminal Law (§ 1129) — Instructions— Objections — Sufficiency.
    When error is assigned to instructions by bill of exceptions or motion for new trial, it should be specifically pointed out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2957; Dec. Dig. § 1129.]
    5. Homicide (§ 89*) — Assault with Intent to Murder.
    In a trial for assault with intent to murder accused’s wife, it was proper to instruct that if he had unlawfully shot at a third person with intent to kill, and accidently struck his wife, accused would be as guilty of an assault u,pon his wife, as if the assault had originally been made upon her.
    [Ed. Note. — For other cases, see Homicide, 'Cent. Dig. § 116; Dec. Dig. § 89.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Bogan Ward was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    G. A. Bell and R. L. Williford, 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
    
    
      
       Rehearing denied.
    
   PRENDERGAST, J.

The appellant was indicted for an assault with intent to murder his wife, was convicted, and given two years in the penitentiary.

It is unnecessary to give any extended statement of the facts. We merely briefly state them. The shooting is alleged to have occurred on June 18, 1910. The appellant and his wife married about two years before that time. They were both young negroes. The appellant was very jealous and suspicious of her, and in effect accused her from time to time of intimacy with others. They had been quarreling and fussing almost continuously during their married life, and had separated twice before the shooting, and the indications are were going to separate again on the night of the shooting. The appellant had, shortly before this, carried his gun apparently for the purpose of shooting his wife, and about a month before the shooting he took it with him to church, and hid it out near the cemetery, and, after attempting to eavesdrop his wife in her talks with others on this occasion, ran and got his gun and brought it back towards the church. When attention was called to this by some persons, one of the witnesses accosted him to know why he had brought his gun with him to church. He replied to see if he could catch his wife; that she had not been treating him right, and, unless she did treat him right, he was going to kill her; that she had quit him the last time, and that he had taken her back the last time. On the day of the night of the shooting, the negroes had an Emancipation celebration or festival at one of their churches; the appellant and his wife and many others were there. Some of the persons were there of whom the appellant was jealous. The shooting occurred at night. The appellant’s wife was engaged in a game with several others, among them some of the persons of whom appellant was jealous, and while she was thus engaged, with her back towards the church, a shot was fired, which struck her and seriously injured her. The shot from the same fire of the gun also struck several other persons. Several witnesses saw the flash of the, gun, and immediately upon its flash appellant’s wife fell, and exclaimed, “Bogan [meaning appellant] has shot me.” Immediately after the shot, whoever it was fired it ran from one window from which the shot was fired across the house to another, and jumped out of the window and ran. The evidence clearly shows that whoever did the shooting at once ran across the house and jumped out of the window, and, while some of them testified they could not see the party well enough to clearly identify him while in the house, the appellant was clearly identified, after jumping out of the house, by several parties as the party who fired the gun. The testimony is ample, full, and clear to show that the appellant was the party who fired the shot from the gun that seriously injured appellant’s wife.

Appellant has several hills of exceptions, complaining of the action of the court in admitting certain testimony. We will give one of them in full, which is a fair sample of each of the others. The first one is as follows: “Be it remembered that upon the trial of the above entitled and numbered cause, the state introduced the following testimony by the witness Will Green, to wit: ‘Defendant and his wife had been separated twice. They were fussing, quarreling, and fighting, and I would always stop them, and would not let them fight.’ Which testimony was objected to by the defendant at the time it was offered, upon the following grounds, to wit: That said testimony was too remote, that it had no connection with the matter under investigation, and that same could serve no other purpose than to prejudice the minds of the jury against the defendant. And the court overruled said objections, and admitted said testimony, to which decision of the court the defendant then excepted, and tenders this bill of exceptions, and asks that same be signed and filed as a part of the record in this ease.” The court in allowing the bill qualified it as follows: “Defendant and his wife were shown to have been continuously fussing and fighting for some time prior to the shooting, and the evidence showed that defendant carried his gun with the avowed purpose of killing her and any other admirer she might have. The evidence was admissible to show motive, and was not remote, being shown to have occurred the month preceding the shooting.”

The next bill complains that the court admitted the following testimony by the same witness: “The fights they had at my house, he accused her of other men. I heard him bring Frank Warren’s name into it.” This was objected to because irrelevant, not pertinent to any issue in the case, and not testimony against defendant, and it could only serve to prejudice the minds of the jury against the defendant. The court in allowing this bill qualified it as follows: “Defendant and his wife were shown by the evidence to have been continually fussing and fighting for some time prior to the shooting; and that defendant was jealous of his wife because of her alleged relations with Warren and ojher men. It is admissible to show motive, and was not remote. (See pages Nos. 10 and 11, and Nos. 42, 43, 46, statement of facts.)”

The next bill is to the testimony of the appellant’s wife, as follows: “Once when we were having a fuss [meaning witness and defendant] he picked up a piece of board, and struck me on the wrist. (Witness was here asked by state’s counsel to exhibit her wrist to the jury, showing and displaying to the jury a small scar on her wrist.)” This was objected to because it occurred long prior to the alleged shooting; that it did not tend to connect the defendant with the shooting, and it did not tend to show a motive for said shooting, and could only serve for the purpose of prejudicing the minds of the jury against defendant. The court in allowing the bill qualified it as follows: “The evidence in the case showed that defendant and his wife were constantly fussing and fighting, and that defendant was jealous of his wife and her relations with other men. The evidence was admissible to show motive, and was not shown to be remote, but within a week before the shooting, as will be seen by examining the statement of facts (pages Nos. 18 and 19).”

The next bill shows that the appellant objected to the following testimony of Simpson : “I examined a track where it appeared that some one might have jumped out of the south window [meaning a window of the schoolhouse where the shooting occurred]. I measured this track with a string. After-wards I applied this string to a pair of shoes that were sitting by the defendant’s bed; they looked like the shoes the defendant had worn the day of the ‘Festival.’ The measurement fit the shoe in length and breadth.” The defendant objected to this testimony, because said shoes had not been identified as the shoes of defendant, and there had been no proof that the defendant had ever worn the shoes so measured, and such testimony, if adduced at all, should have been introduced before the state closed its case; the same not being in rebuttal of any evidence brought out by defendant. The court overruled these objections and permitted the testimony, qualifying the bill as follows: “The evidence showed that the track measured by Simpson was the track made by the party who jumped from the window of the church, and ran off in the direction that the witnesses say defendant jumped from the window and ran. The defendant in his testimony stated that he had gone home and undressed and placed his shoes beside his bed. The witness Simpson testified that he found defendant in bed undressed, and the shoes which he measured beside his bed. The measurement was made within an hour or two after the shooting, by the witness Simpson, who was the justice of the peace, and was endeavoring to trace the identity of the party who did the shooting; and all the circumstances and evidence •clearly show that the shoes measured were the shoes worn by the defendant on the day and at the time of the shooting. This testimony was clearly in rebuttal of defendant’s alibi.”

These several bills are clearly insufficient, because they do not show within themselves what the evidence in the case was, so that this court can determine therefrom whether there was any error by the -court in its action. However, each bill as qualified by the judge, we think, clearly shows that the testimony was admissible, and the court did not err in admitting any of it.

Appellant’s fifth' bill complains that the court committed error in charging the jury in paragraph 8 as follows: “If you believe from the evidence, beyond a reasonable doubt, that the defendant, Bogan Ward, with his malice aforethought at the time and place alleged in the indictment, did unlawfully make an assault upon any other person and reasonable creature in being, other than Florence Ward, and did shoot at such other person with a gun, the same being a deadly weapon, with the intent to kill and murder such other person, if any, and you further believe from the evidence, beyond a reasonable doubt, that by accident the defendant inflicted upon Florence Ward the injury, if any, intended to be inflicted by him upon such other person, then you are instructed that in such event the defendant would be as guilty of an assault upon said Florence Ward, if guilty at all, as if said assault, if any, had been originally made upon her by him.” Appellant’s complaint of this charge is “that it is not the law of this state, is material error, and was calculated to injure the rights of defendant.” The court in allowing the bill qualifies it as follows: “The evidence in the case showed that defendant was jealous of his wife’s relation with other men; that he had repeatedly declared his purpose to kill her and to kill any other man who showed her attentions; that he carried his gun for that purpose; and that four other persons besides her were hit with one or more shot from from the same load that struck his wife. (See evidence Florence Ward, Arthur Preston, Willie Hunter, and the defendant.) Defendant’s defense was that of alibi, and he did not swear that he had shot at another than his wife. Defendant’s counsel, in the examination of all witnesses, in his argument before the court, and in argument to the jury, insisted that no one knew whether defendant, if he fired the shot, shot at some one of the other four persons who were struck, or at his wife, but contended at all times that defendant did not do the shooting. This charge was fully warranted by all the facts in the case, and is the law, as enunciated in Richards v. State [35 Tex. Cr. R. 38] 30 S. W. 805, and Smith v. State, 95 S. W. 1058.”

The next bill of exceptions is to paragraph 13 of the court’s charge (quoting it). It is lengthy and unnecessary for us to quote here. By this charge, the court submits in appropriate language for the jury to find the defendant guilty of an aggravated assault if he intended to shoot some one else other than his wife, and as a matter of fact shot her, but did not intend to kill her, simply inflicted a serious bodily injury upon her, and told the jury what the penalty for aggravated assault was. The appellant excepted to this charge on the following grounds: “That it is not the law of this state, is material error, and was calculated' to injure the rights of the defendant.” The court in allowing the bill qualified it as the last one just above.

The next bill complains that the court refused to give his requested charge to the jury, which was as follows: “You are further instructed in this case that if you should believe from the evidence that the defendant, Bogan Ward, fired the shot that hit Florence Ward, yet if you should believe that said Bogan Ward fired at Colly Livingstone, or any other person than Florence Ward, you will find him not guilty; or, if you have a reasonable doubt thereof, you will find him not guilty.” The court in allowing the bill qualified it as follows: “There was no evidence that the defendant shot at Collie Livingstone, and the charge was and is on the weight of the evidence, and against the weight of authority. See Richards v. State [35 Tex. Cr. R. 38] 30 S. W. 805, and Smith v. State, 95 S. W. 1058.”

The complaint of the appellant to the several charges given by the court, and the objections thereto by the appellant, clearly were not such as to require this court to' review them. When error is assigned on the charge of the court, by either a bill of exceptions or motion for new trial, the specific error relied upon should be pointed out. It is not sufficient to copy the charge complained of, and then object to it, because it is not the law of this state, is material error, and was calculated to injure the rights of the defendant, or any other such general complaint. Campbell v. State, 15 Tex. App. 506; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; Reynolds v. State, 17 Tex. App. 413; Garello v. State, 31 Tex. Cr. R. 56, 20 S. W. 179; Pollard v. State, 58 Tex. Cr. R. 307, 125 S. W. 390; Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730; Coleman v. State, 48 Tex. Cr. R. 343, 88 S. W. 238; White v. State, 52 Tex. Cr. R. 193, 106 S. W. 1167; Roma v. State, 55 Tex. Cr. R. 344, 116 S. W. 598.

Even if we could consider the several complaints to these several charges by the court, it is our opinion that they correctly enunciate the law applicable to this case. Penal Code (old article 695; new article 1125), and eases cited under the new article; Thomas v. State, 53 Tex. Cr. R. 272, 109 S. W. 155, 126 Am. St. Rep. 786; Honecutt v. State, 42 Tex. Cr. R. 130, 57 S. W. 806, 96 Am. St. Rep. 797; Richards v. State, 35 Tex. Cr. R. 38, 30 S. W. 805; Smith v. State, 95 S. W. 1058.

There is nothing else material raised by the motion for new trial which it is necessary for us to discuss. We have considered all of the complaints, and there being no reversible error pointed out the judgment will, in all things, be affirmed.

DAVIDSON, P. J., absent.  