
    BETTS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1910.
    On Motion for Rehearing, Jan. 4, 1911.)
    1. Homicide (§ . 169) — Evidence — Admissibility.
    The state, on a trial of a parent for the murder of his child, may show that the parent had pleaded guilty to a charge of aggravated assault on the child.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 343; Dec. Dig. § 169.⅝]
    2. Criminal Daw (§ 476) — Evidence—Expert Testimony.
    A physician, examining the body of a decedent and testifying in detail to the condition thereof, may give nis opinion that certain instruments are such as would produce death, and that certain wounds were inflicted by such instruments.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. § 476.]
    3. Criminal Law .(§ 473) — Evidence—Expert Testimony.
    Where, on a trial of a parent for the murder ■ of his child, the theory of the state was that accused had whipped decedent in such a manner that it caused the bursting of blood vessels in the brain, causing death, the court properly permitted a physician to give his opinion that the whipping weakened the vitality and lowered the resisting powers of decedent, and thereby rendered her more liable to sustain a bursting of a blood vessel in the brain.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1060; Dee. Dig. § 473.]
    4. Homicide (§ 173) — Evidence — Admissibility.
    Where, on a trial of a parent for the murder of his child, the evidence showed that accused had whipped the child with a waistbelt, evidence of the character, weight, length, and size of the belt was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dee. Dig. § 173.]
    5. Homicide (§ 173) — Evidence — Admissibility.
    Where, on a trial of a parent for the murder of his child, the evidence was circumstantial and it was the theory of the state that accused killed thé child with a hairbrush, the testimony of the sheriff that he went to decedent’s house a few minutes after her death, and that he found the hairbrush in the room in a broken condition, and that it appeared to be freshly broken, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    6. Homicide (§ 290) — Evidence — Instructions. ' ,
    Where, on a trial of a parent for the murder of his child, the evidence showed that accused whipped the child with a waistbelt, hairbrush, and his fists, and the theory of the state was that the whipping caused the bursting of blood vessels in the brain of the child, causing death, the court, in charging on murder in the second degree and in charging in the language of Pen. Code 1895, art. 717, declaring that the instrument by which a homicide is committed must be taken into consideration in judging of the intent of accused, must aifirmatively charge that if the jury believed that the instruments used by accused were not likely to produce death and the injury was not inflicted in a cruel manner, he was not guilty of a homicide, unless he intended to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. § 290.]
    
      7. Homicide (§§ 9, 36) — Degree.
    Under Pen. Code 1895, art. 718, providing that where an injury is inflicted in a cruel manner, though with an instrument not likely to produce death, the killing is manslaughter or murder according to the facts, a parent who whipped his child in a cruel manner and thereby caused her death, the act being done with intent to kill the child, was guilty of murder, but if the injury was inflicted in a cruel manner by an instrument not likely to produce death, and there was no intention to kill, he was guilty of manslaughter only.
    [Ed. 'Note.' — Eor other cases, see Homicide, Cent. Dig. §§ 14, 57 ; Dec. Dig. §§ 9, 36.*]
    8. Homicide (§ 309*) — Evidence — Instructions.
    Where, on a trial of a parent for the murder of his child, the evidence showed that accused whipped the child with a waistbelt, hairbrush, and his fists, and the theory of the state was that the whipping caused the bursting of blood vessels in the brain of the child, causing death, the court charging on murder in the second degree should also charge on manslaughter, under Pen. Code 1895¡ art. 718, providing that if any injury is inflicted in a cruel manner, though with an instrument not likely to produce death, the killing is manslaughter or murder, according to the facts of the case.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 650; Dee. Dig. § 309.*]
    9. Assault and Battery (§ 54*) — Aggravated Assault — Evidence.
    Where a father whipped his infant child and thereby caused her death, but he had no intent to take her life, and the whipping was not cruel, he was guilty of aggravated assault only.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.*]
    10. Homicide (§ 307*) — Evidence — Instructions — Aggravated Assault.
    Where, on a trial of a father for the murder of his child, the evidence showed that accused whipped the child with a waistbelt, hairbrush, and his fists, and that the child died in consequence thereof, the court should affirmatively charge that if the jury believed that the parent inflicted the injury on the child which caused death, but not in a cruel manner and with no intent to take life, he was guilty of aggravated assault only.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 639; Dec. Dig. § 307.*]
    On Rehearing.
    11. Indictment and Information (§ 130*) — Joinder of Offenses.
    An indictment charging in one count that accused and his wife murdered their child, and charging in another count that they conspired together to kill the child, charges two distinct offenses, and the court, on motion, must either quash the indictment or compel the state to elect on which count it will proceed.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 419-423; Dee. Dig. § 130.*]
    12. Indictment and Information (§ 132*) — Joinder of Offenses — Election.
    The state, in answer to a motion to quash an indictment charging two separate and distinct offenses, has the right to elect on which count it will proceed.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-453; Dec. Dig. § 132.*]
    '13. Criminal Daw (§ 186*) — Former Acquittal.
    Where, on a trial under an indictment charging murder in one count and in another count a conspiracy to kill decedent, the case was submitted on the» count charging murder and a verdict responsive thereto was returned, there was in effect an acquittal of the charge of conspiracy, and on a reversal of the conviction accused can only be tried for murder.
    [Ed. Note. — For other cases, see Criminal Law-Cent. Dig. §-320; Dec. Dig. § 186.*]
    Appeal from District Court, Erath County; W. J. Oxford, Judge. ,
    T. M. Betts was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Chandler & Pannill, Martin & George, and Watson & Simmang, for appellant. Jno. A. Mobley, Asst. Atty. Gen., for the State.’
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER, In Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   LANE,

Special Judge. Appellant was tried in the court below on an indictment which charged him and Eva Betts, his wife, with the murder of Rozella Betts, their female child about two years old. . He was convicted of murder in the second degree, and his punishment assessed at 35 years’ confinement in the penitentiary.

1. This is the second appeal. The first appeal is reported in 57 Tex. Cr. R. 390, 124 S. W. 424.

2. The evidence, briefly stated, shows that beginning about the 1st day of November, 1908, up to about two weeks before the death of deceased, which occurred on the.9th day of December, 1908, appellant, with a waistbelt and with his hands, cruelly whipped the deceased. The evidence shows that these whippings did not cause the death of deceased, but had a tendency to lessen its vitality and resisting powers. One theory of the state was that the appellant, by the use of a hairbrush or his hands, beat the deceased in such a manner that it caused the bursting of blood vessels on the brain, which formed a blood clot, and this causing the death of the deceased. Another theory was that by said means he inflicted said injuries in a cruel manner. Dr. Day, one of the physicians who made the post mortem examination, testified that in his opinion the deceased died of strangulation; that there were some few blood clots upon the brain caused, evidently, by the bursting or breaking of some of the blood vessels of the brain; that in his opinion the death of the child was not the result of the blood clots. These brain clots were not very large, some the size of a pea and some maybe a little larger; that he would not undertake to say that the clots resulted from the jarring of the brain, as the result of the chiseling of the -skull, nor that the blood of the brain was sufficiently coagulated at the time to prevent a hemorrhage by reason of the chiseling. The evidence shows that there were two post mortem examinations on the body of the deceased, one in the morning— .-an external one — and one in the evening, about 2 o’clock of the day of the death of de■ceased; that at the last examination the doctors removed the scalp from the child’s head ■and found some 10 or 12 bruises or contusions on the skull; that after this they re.moved the skull of the deceased by means of ¡a chisel and mallet. Appellant proved by -several witnesses that his general reputation for peace and quiet was good, and that he -was kind and affectionate to the child. This -is not all of the testimony, but we think is ¡sufficient to present the questions herein dis- ■ cussed. It was the theory of the state that .appellant killed the child either with his ¡hands or with a hairbrush about 2½ inches wide, and 8 or 9 inches long, and weighing ¡about 3⅛ ounces. The case against appellant is one of circumstantial evidence. No one -saw the killing.

3. We are of opinion that the indictment is a good one for the reasons stated on first ¡appeal. Betts v. State, 57 Tex. Cr. R. 389, 124 S. W. 424.

4. Bill of exceptions No. 2. The state was permitted, over appellant’s objection, to introduce in evidence an affidavit and information charging appellant with committing an ¡aggravated assault upon Eva Betts (the judge -certifying that the evidence showed that Eva Betts and Rozella Betts were one and the ¡same person) on the 10th day of November, ■ 1908, and also so much of the judgment of the court as showed the trial of the cause and defendant’s plea of guilty therein. There was no error in this. Waters v. State, 54 Tex. Cr. R. 322, 114 S. W. 629.

5. Bill of exceptions No. 4. Shortly after the death of deceased, Dr. Gordon examined the dead body of the deceased and testified minutely and in detail as to the condition of the head and body of deceased, including the ■contusions that appeared on the head of deceased. After so testifying, the state exhibited to the witness the said hairbrush, and which was shown to be the one found by the ■sheriff at the house where deceased died and shortly after her death, and over the objections of appellant he was permitted to testify that in his opinion deceased could have ‘been killed with said hairbrush, and that in ’his opinion the bruises which witness found on the head of deceased could have been inflicted with said hairbrush. In this there was no error. Medical experts are permitted to give their opinions that certain instruments are such as would produce death, as well as certain wounds were inflicted by certain instruments. Waite v. State, 13 Tex. App. 180; Banks v. State, 13 Tex. App. 183; Kirk v. State, 37 S. W. 443.

6. Bill of exceptions No. 5. There was no ■error in permitting Dr. Gordon to testify that in his opinion the whipping shown to have “been inflicted by appellant on deceased, shortly prior to her death, would have the effect -to weaken the vitality and lower the resisting powers of deceased, and thereby render deceased more liable to bursting of a blood vessel on the brain. See last authorities,

7. Bill of exceptions No. 6. Sheriff Cox was permitted to testify as to the character, weight, length, and size of a waistbelt exhibited in evidence by the state. The evidence shows that this belt is the one used by appellant in whipping deceased shortly prior to the homicide. We think it was permissible for the state to show the character, weight, length, -and size of said waistbelt.

8. Bill of exceptions No. 7. Sheriff Cox testified for the state that he went to the house where deceased was a few minutes after her death, and that he- found the said hairbrush exhibited in evidence in the room in a broken condition, one part on the washstand and the other part on the floor; that it appeared to be freshly broken. It is of wood with a metal rim around, the edge, about 2½ inches wide, length 8 or 9 inches, and weighed 3½ ounces. After this testimony, the state introduced in evidence said hairbrush. In this there was no error. The case was one of circumstantial evidence, and it was the theory of the state that appellant killed deceased with said hairbrush.

9. As the court failed to instruct the jury pertinently and affirmatively on aggravated assault arising out of the alleged assault which caused the death of deceased, to which failure appellant excepted in his motion for new trial, and as we believe there was an error of omission in such failure of the court to so charge the' jury, we will notice in the following portions of the opinion some of the questions which are likely to arise upon another trial.

10. Article 717 of the Penal Code of 1895 prescribes: “The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending. If 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 charged the jury that if they believed that appellant did unlawfully, with implied malice aforethought, kill Rozella Betts by then and there striking the said Rozella Betts with a brush or by then and there striking, beating, and bruising the said Rozella Betts with his hands, or by either of said means, then to find the defendant guilty of murder in the second degree, etc. The court then gave in charge to the jury article 717 of the Penal Code, and then instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant killed the deceased by striking her with a brush or by beating and striking her with his hands, or by either of said means, then they were instructed that if such instruments were not such as were likely to produce death, it is not to be presumed that the defendant designed the death of the deceased. We believe that the court in charging on this branch of the case should have charged the jury affirmatively that if they believed that the instruments or means used by appellant in killing deceased were not likely to produce death, and the injury was not inflicted in a cruel manner, that appellant would not be amenable for the homicide, unless he intended to kill deceased. Hill v. State, 11 Tex. App. 456.

11. The court charged the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant, with implied malice aforethought, inflicted injury on the deceased in a cruel manner with a brush or with his hand, or with either of them, and if said instrument or means, or either of them, were not likely under ordinary circumstances to produce death, but the jury further believed that death did result therefrom, then the defendant would be guilty of murder.in the second degree. We believe that the court, having charged on murder in the second degree, should have charged on manslaughter. Article 718 of the Penal Code prescribes that: “If any 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.” Now, if appellant is guilty of murder under the facts on this phase of the case, it is on account of the fact that with his hands or with the said hairbrush he inflicted injury in a cruel manner upon the deceased. If appellant inflicted the injury with his hands or with said brush in a cruel manner, although it was not likely under ordinary circumstances to produce death, the killing might not be murder. It might be manslaughter under the statute cited. If the injury was inflicted in a cruel manner, and for the purpose of killing, of course, it would be murder, but if not for the purpose of killing, it might be manslaughter. Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106. So we think the jury should have been told that if the injury was inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, but there was no intention to kill, that appellant would be guilty of manslaughter.

12. The court charged the jury that if they believed that appellant, on or about the 9th day of December, 1908, was an adult male and that Rozella Betts was then and there a child, and that appellant did then and there strike, beat, and bruise the said Ro-zella Betts unlawfully, * * * to find him guilty of an aggravated assáult. Appellant, in his motion for new trial, excepted to this portion of the charge, because it did not specifically limit the jury’s consideration to the particular assault, if any, that may have resulted in the death of the deceased, and had the charge been so formulated as to specifically call the jury’s attention to' the assault resulting in death, the jury might have found appellant guilty of an aggravated assault. If appellant killed the deceased with no intent to take life, and not in a cruel manner, then, under the above authorities, he would not have been guilty of the homicide, but would have been guilty of aggravated assault; he being a male and deceased being a child. So we believe that the court should have charged the jury affirmatively that if they believed from the evidence that the defendant did inflict injury upon the deceased, which caused her death, but not in a cruel manner and with no intent to take the life of the deceased, that he would be guilty of an aggravated assault, he being an adult, male and deceased being a child, and for this failure in the court’s charge we think it is error for which the cause should be reversed.

The judgment is reversed and the cause is remanded.

McCORD, J., not sitting.

RAMSEY, J.

I concur in the result.

I think that the issue stated in paragraph 10 of the opinion should have been submitted as therein stated. While this issue was, in a manner, submitted by the court, I doubt, if applied to the peculiar facts of the case, whether it was done in such a direct and particular manner as to clearly advise the jury of the exact issue to be decided by them. The other matters I do not care to discuss. I should not, however, have been disposed to have written upon some of them in the manner appearing in the opinion.

On Motion for Rehearing.

LANE, Special Judge.

On a former day of this term this cause was reversed and remanded, and appellant has filed a motion for rehearing, urging that this court was in error in holding that the indictment was a good one.

The indictment in the first count charges Eva Betts and appellant with the murder of Rozella Betts, alleged to have been committed on the 9th day of December, 1908, and in the second count it charges that on the 15th day of November, 1908, the said Eva Betts and appellant did conspire together to kill the said Rozella Betts. It will be seen that the indictment charges two separate and distinct offenses. In the first it charges a capital felony, and in the second ■it charges an ordinary felony. Appellant before the trial presented to the court a motion to quash the indictment, on the ground that the same charges two separate and distinct felonies alleged to have been committed on two separate and different dates. The court overruled this motion, and appellant excepted, but the court submitted only the first count to the jury. In our former opinion we thought that; ¿is the court had submitted the case to the jury only on the first count, this was tantamount to an election by the state, and therefore tantamount to sustaining the motion to quash as to the second count. In this we believe we were in error. We believe that the court should have either quashed the indictment, or compelled the state to elect on which it would proceed. We think the state, in answer to the motion to quash, had the right to elect on which count it would proceed.

In the case of Faulkner v. State, 15 Tex. App. 115, this court said: “We will not discuss at this time just what offenses can be charged by different counts in the same bill. The -following cannot only be charged in the same indictment, but the state cannot be forced to elect upon which count defendant shall be tried. In an indictment for the theft of a certain piece of property,. counts for swindling, embezzlement, receiving, and, if an animal, altering mark or brand, branding horse, mule, ass, cattle, etc., without consent and with intent to defraud. Under an indictment for burglary, a count for the intended offense may be inserted, unless murder or rape be the intended felony, and one or the other of these offenses be actually committed. In this state of case, we advise that the party be indicted for the murder or the rape, omitting all mention of the burglary. In forgery, counts for uttering or attempting to utter and pass the forged document, may be inserted. This short enumeration is not to be understood as embracing all of the offenses which may be charged by different counts in the same indictment; but, that which we wish to call special attention to is, that the state cannot be compelled to elect upon which count the defendant shall be tried in the cases above enumerated. The principle is that the court should always interpose, either by quashing the indictment or by compelling an election, where an attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions ; but should never interpose in either mode, where the joinder is simply designated and calculated to- adapt the pleadings to the different aspects in which the evidence on the trial may present a single transaction.”

Since, however, the case was submitted to the jury only on the first count in the indictment, which chaz-ged appellant with the offense of murder, and a verdict responsive thereto was returned, this, in effect, was an acquittal of the charge of conspiracy. So that, at this time, the only offense for which appellant can be tried under this indictment is for the offense of murder. That count in the indictment charges an offense, and for that only he can now be tried.

In the attitude of the case as it now presents itself, we hold there was no hurtful error in overruling the motion to quash.

The motion for rehearing is overruled.  