
    MINOR v. STATE.
    (No. 10961.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    •State’s Rehearing Denied Jan. 11, 1928.
    1. Homicide <&wkey;>86 — Specific intent to kill is indispensable element of assault to murder.
    One of the indispensable elements of crime of assault to murder is specific intent to kill.
    2. Criminal law <&wkey;I1661/2(12)— Court’s statement on nonappearance of state witness that he was tired of continuing case was not prejudicial to defendant.
    Court’s statement, on case being called, that he had just discovered that state’s chief witness was not present, but that court was tired of continuing case, and was going to reset it for that week, was not prejudicial to defendant, entitling him to have jury panel for the week quashed.
    3. Witnesses &wkey;>345(l) — Question as to whether witness had not married wife to prevent indictment for incest was properly excluded, where witness had never been indicted.
    Question by accused of witness as to whether witness had not married his wife under instructions from grand jury to prevent indictment for incest was properly excluded, where witness had never been indicted.
    4. Criminal law <&wkey;l 091 (16) — Bills of exceptions to charge, and refusal to give special charges, not showing timely exceptions or requests, cannot be considered.
    Bills of exceptions relating to exceptions to court’s charge, and refusal to give special charges, not showing that exceptions and presentation of special charges were timely made, or surrounding facts and circumstances, cannot be considered.
    5. Criminal law &wkey;>!09!(ll) — Bills of exeep- , tions in question and answer form, not approved! by trial judge, cannot be considered.
    ' Bills of exceptions in question and answer form, without certificate of trial judge showing necessity of such form, cannot be considered.
    
      6. Crimina! law &wkey;763v 764(2) — Instruction that there was evidence tending to show separate assaults on prosecuting witness held erroneous as being on weight of eyidence.
    Where, in prosecution for assault to murder, defendant denied knowledge of participation in one of two assaults on prosecuting witness, instruction that there was evidence tending to show separate assaults on prosecuting witness was erroneous- as being on the weight of evidence.
    On Motion for Rehearing.
    7. Criminal law <&wkey;772(6) — In prosecution for assault to murder, failure to separately submit issue of defendant’s intent held error.
    In prosecution for assault to murder, charge requiring finding before acquitting defendant that defendant was authorized by sheriff to arrest prosecuting witness, and that he fired gun merely to cause prosecuting witness to stop, held error, since defendant was entitled to have issue as to his intent submitted separately from question of authority given him by sheriff to arrest prosecuting witness.
    8. Homicide <&wkey;86 — Defendant, shooting at prosecuting witness merely to stop him,, and with no intent, to kill, is not guilty of assault to murder.
    If defendant, claiming to have authority of sheriff to arrest prosecuting witness, shot at latter for no other purpose than to stop him, and without intent to kill him, defendant would not be guilty of assault to murder.
    Commissioners’ Decision.
    Appeal from District Court, Upshur County; J. R. Wafren, Judge..
    Morris Minor was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    M. B. Briggs and T. H. Briggs, both of Gilmer, for appellant.
    ' Sam D. Stinson, State’s Atty. and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

Appellant was convicted of assault to murder.

Many antecedent acts showing ill will on the part of appellant towards the prosecuting witness, M. C. Boren, appear in the record. The testimony as to the facts of the difficulty in question, and those immediately preceding it, is conflicting. Prosecuting witness, Boren, testifies that he found a dead man on the road, and, after leaving there, some one shot at him several times near a gate a short distance from the body of the dead man. It was dark, and he did not see nor recognize the party who did the shooting. In company with a neighbor, he then went for an officer, and on the way encountered the appellant, who ordered him to “stop,” and shot at him with a Winchester. The appellant testifies that he too saw the dead man and went to the residence of Constable Thigpen with a companion to notify that officer; that Thigpen was told that prosecuting witness, Boren, was the first-man seen around the dead man, whereupon Thigpen instructed appellant to arrest Boren on the road back, if he saw him; that on the way back appellant did meet- Boren, and1 ordered him to stop, intending, as he says, to arrest him and take him back to the body, whereupon Boren ran, and he shot at him, not to kill him or to hit him; but only to-scare him. Thigpen denied he had authorized appellant to arrest Boren. Appellant denied any knowledge of or participation in,, any shooting at a gate as testified to by Boren.

Appellant was tried and convicted upon the transaction happening on the road he-traversed returning from Thigpen’s to the-body. It will be seen that the issue was-sharply made as to whether appellant shot with intent to kill. Indeed, that was the only defense interposed by appellant to the charge of assault to murder. One of the indispensable elements of this offense is a specific intent to kill.

Under the facts of this case, we think appellant was entitled to a distinct and affirmative charge on this issue, untrammeled by any qualification. Scott v. State, 60 Tex. Cr. R. 318, 131 S. W. 1072. The only affirmative presentation of this issue on behalf of appellant 'was in paragraph 8 of the court’s charge in the following language:

“If you shall find that prior to the shooting, if any, the witness Thigpen instructed or authorized the defendant to arrest M. C. Boren,, and that, when he met him, if he did, he fired his gun to cause the said M. C. Boren to stop, and not with the intent to kill him, or if you' have a reasonable doubt thereof, you will find' the defendant not guilty.”

It will be noted that, before an acquittal is authorized under this charge, the jury must believe that appellant was authorized by Thigpen to arrest Boren. Obviously, if appellant shot without a specific intent to kill, he was entitled to an acquittal of assault to murder, regardless of how the jury might decide .the disputed issue of authority from Thigpen to arrest. This error, we think, would have been cured by giving the substance of appellant’s special requested charge-No. 1 to the jury.

Bill of exception No. 1 complains of the-action of the trial court in refusing to quash the jury panel for the week. It appears that, when appellant’s case was originally called on Monday morning, the court remarked:

“I have just discovered in this case that the witness Boren is not here, and I am going to-reset this case for Thursday morning. I am-tired of passing this case from term to term, and I am going to try to dispose of it this-week.” '

As the chief witness for the state was the cause of the delay, so far as the jury knew, we do not perceive how appellant could have been injured.

Bill of exception No.. 11 presents the question of appellant’s right to ask a witness the question of whether or not he married his wife under instructions from the grand jury to prevent an indictment for incest. The bill of exception shows that said witness had never been indicted, and this testimony was inadmissible. Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036.

None of appellant’s remaining bills can be considered. Some of them relate to exceptions to the court’s charge and refusal to give special charges, and in none of these bills does it appear that such exceptions and presentation of special charges were timely made. To illustrate the general character of the other remaining bills, we reproduce bill of exception No. 5, omitting its formal parts:

“Q. Now, Mr. Thigpen, where did you find those cartridges with reference to where you were when you had the conversation with Mr. Minor the night before? A. About 150 yards back this side of- where we had the conversation.

“Q. Was that on the road .that Minor was traveling at the time you met him? A. Tes, sir.

“Q. Now, where were those cartridges with reference to the gate? A. They were about 20 steps north of the gate, 15 or 20 steps.”

From an inspection alone of this bill, this testimony may have been beneficial to the appellant. No surrounding facts and circumstances are included in the bill which would show its injurious character, if any. To say this must be done is but restating what this court has many times held. See collation of authorities under article 667, Vernon’s Code of Criminal Procedure. Bills of exception in question and answer form, without a certificate of the trial judge showing the necessity of such form, cannot be considered. Shoppa v. State, 102 Tex. Cr. R. 215. 277 S. W. 123; Lee v. State, 100 Tex. Cr. R. 664, 274 S. W. 582.

As previously stated, Boren testified to having been shot at by some one at a gate. Appellant denied any knowledge of, or participation in, this shooting. Appellant was .tried and convicted on a transaction happening at another time and place already referred to. The court charged upon these two alleged assaults in paragraph 6 of his charge, beginning as follows:

“There is evidence in this case tending to show separate assaults upon the witness M. C. Boren, one alleged to have been committed near the gate, the other on the Gilmer and Orr City road.”

This part of the charge was clearly upon the weight of the evidence, and has been frequently condemned. Mickey v. State, 49 Tex. Cr. R. 255, 91 S. W. 587; Leach v. State, 46 Tex. Cr. R. 507, 81 S. W. 733; Santee v. State (Tex. Cr. App.) 37 S. W. 436. While no objection was made in the lower court to this being upon the weight of the evidence, in view of another trial we deem it best to call the court’s attention to this error. Testimony which goes to prove one of the main issues in the case need not, however, be limited. Hamilton v. State, 41 Tex. Cr. R. 644, 56 S. W. 926.

Because of the error first above pointed out, this cause will be reversed and remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by .the court.

On Motion for Rehearing.

LATTIMORE, J.

We are not able to agree that the main charge in this ease correctly set forth the law; this being the only ground on which rehearing is sought. There are two propositions embraced in that part of the charge quoted in our former opinion, both of which, from the language used in the charge, would have to be rejected by the jury before they could acquit,- viz.: First, that appellant was instructed or authorized by Thigpen to arrest Boren; and, second, that, when appellant met Boren, he fired his gun merely to .cause the latter to stop. Said two propositions are conjunctively stated in said charge, as appears from an inspection thereof. As a matter of law, if appellant shot for no other purpose than to stop Boren, as he testified, when-he met Boren in the road on the night in question, and without intent to kill him, appellant would not be guilty of assault to murder. He was clearly entitled to have this issue submitted to the jury free from any issue as to whether Thigpen had given him authority to arrest Boren or not. Thig-pen testified that he did not so authorize appellant, and, when the two propositions stated above are made dependent, one on the other, in the court’s charge, this materially weakened appellant’s ground for expecting the jury to acquit. The appellant’s right to an acquittal should have been made dependent only on one of said propositions, viz. that the jury believed he shot for the purpose of stopping Boren, and with no intent to kill him.

The motion for rehearing by the state will be overruled. 
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