
    BROGDON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1911.)
    1. Criminal Law (§ 1102) — Appeal—Statement of Pacts.
    Tile statement of facts in a misdemeanor case tried in the county court, not being copied in the transcript, will be stricken, the law in relation to official stenographers (Acts 31st Leg. [1st Ex. Sess.] c. 39) not applying to criminal cases in the county court.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    2. Witnesses (§ 277) — Cross-examination-Defendant in Prosecution.
    Though the witnesses for the state on a prosecution for carrying a pistol stated that defendant went home with 0., on March 3d, and on that occasion displayed the pistol, defendant, who testified that on that night he did not go home with C., but went with another and did not then have a pistol, may on cross-examination be asked if on March 4th he did not go home with C. and then have a pistol.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 277.]
    3. Criminal Law (§ 678) — Election.
    All the testimony on a prosecution for carrying a pistol fixing the carrying on the occasion of defendant’s going home with C., which was either on March 3d or March 4th, but not on both days, the fact that some of the evidence was that it was on March 3d, and other that it was on March 4th, did not require the state to elect between the two dates; there not being two separate and distinct transactions.
    [Ed. Note. — IPor other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    4. Criminal Law (§ 1090) — Appeal — Review of Charge.
    The charge in a misdemeanor case cannot be reviewed for failure to charge on alibi, unless a special charge is requested, and the failure to give it is excepted to and preserved by bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2818; Dec. Dig. § 1090.]
    5. Criminal Law (§§ 775, 784) — Necessity for Instructions — Alibi—Circumstantial Evidence.
    Witnesses for the state on a prosecution for carrying a pistol having testified that on the occasion that he went home with C. he had a pistol, neither the fact that they say he went home with her March 3d, while he says it was March 4th, nor the fact that he says it was a toy pistol, while they say it was a 38-caliber pistol, and that when passing it to a person he said, “Look out, it is loaded,” call for a charge on alibi or circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. §§ 775, 784.]
    6. Indictment and Information '(§ 43) — “Filing.”
    The delivery of the information and complaint to the clerk is a “filing” in law.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 154; Dec. Dig. § 43.
    
    For other definitions, see Words and Phrases, vol. 3, pp. 2764-2770.]
    7. Indictment and Information (§ 43) — Filing — Entries Nunc Pro Tunc.
    The clerk not having, when the information and complaint were filed, made any indorsement of filing thereon, the court may thereafter permit him to do so as of the date of filing.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 154; Dee. Dig. § 43.]
    8. Criminal Law (§ 954) — New Trial — Motion — Generality op Grounds.
    The grounds in a motion for new trial: “The verdict is against the law.” “The verdict is against the weight of the evidence.” “Because justice has not been done” — are too general to bo considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2363-2367; Dec. Dig. § 954.]
    Appeal from Young County Court; E. W. Fry, Judge.
    Noble Brogdon was convicted of carrying a pistol, and appeals.
    Affirmed.
    C. W. Johnson, 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
    
   HARPER, J.

Appellant was prosecuted under complaint and information charged with unlawfully carrying a pistol, and on March 24th was convicted in the county court of Young county, Tex., and his punishment assessed at a fine of $100, and imprisonment in the county jail for 30 days.

It appears from the record that the statement of facts is not copied in the transcript as provided by law; this being a misdemeanor, and the law in relation to official stenographers not applying to criminal cases tried in county court. By reference to that law (Acts of 31st Legislature [1st Ex. Sess.] p. 374) it will be seen that the provisions of that act apply alone to the courts’ official shorthand reporters, and that their appointment is not authorized in criminal cases in county court. See sections 1 and 13 of said act. The motion of the Assistant Attorney General to strike out statement of facts is sustained.

But, should we consider the statement of facts, three witnesses testify that appellant went home with Miss Criss on Friday night, March 3d, and on that occasion displayed a pistol, which he took out of his pocket.

The appellant’s witnesses testify that defendant did not go home with Miss Criss on March 3d, but with another lady, and also testify that on the night of March 3d defendant’s pistol was in the trunk of Mrs. Whitley with whom he boarded. They also testify that appellant owned a toy pistol, which he used to squirt water. Appellant himself testified that he went home with Mrs. Whitley ,on the night of March 3d, and had no pistol on that night, but on cross-examination admitted that he went home with Miss • Criss on Saturday night, March 4th, and on that occasion displayed a pistol, but which he says was the toy pistol the witnesses had testified he owned.

The three state’s witnesses all say that the pistol displayed was not the toy pistol, that the toy pistol owned by defendant and the one introduced in evidence were not the same pistol, and the toy pistol was not the pistol defendant displayed on the night he went home with Miss Criss, but the pistol he had that night was a 38-caliber pistol.

Appellant complains that, as the state witnesses had said it was on the night of March 3d that he went home with Miss Criss, and the night he displayed the pistol, the state on ‘cross-examination ought not to have been permitted to ask defendant if he went home with Miss Criss on the night of March 4th, and, if he had a pistol on that occasion. The complaint and information in this case were not filed until March 13, 1911, and trial had on March 24th, and the state would be permitted to prove the offense on any date within two years prior to the filing of the information. If appellant had been misled or surprised by the proof made in the case as to the date, or any other circumstance, he -should have at once withdrawn his announcement, and moved to postpone the cause. The doctrine of “election” does not apply with equal force to prosecutions for a misdemeanor as it does to felony indictments. Stebbins v. State, 31 Tex. Cr. R. 296, 20 S. W. 552; Waddell v. State, 1 Tex. App. 720; Gage v. State, 9 Tex. App. 259; Day v. State, 14 Tex. App. 26; Alexander v. State, 27 Tex. App. 533, 11 S. W. 628. In Brown v. State, 38 Tex. Cr. R. 598, 44 S. W. 176, Judge Hurt says: “When the defendant takes the stand, he becomes a witness for all purposes. The state is not confined in cross-examination to matters elicited in chief.” There was no error in permitting the cross-examination, and there was no error in not requiring the state to elect on which date, March 3d of 4th, in the condition of the record, as it was not two separate and distinct transactions, but all the testimony related to the occasion when he went home with Miss Criss, whether it was on the night of the 3d or the 4th, and all the state’s testimony fixes that occasion as the date on which he is alleged to have had a pistol.

This court cannot review the charge of the court in misdemeanor cases for failing to charge on “alibi,” unless a special charge is requested, and the failure of the court to give such charge, when requested, excepted to, and preserved by a bill of exceptions. Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358, Martin v. State, 32 Tex. Cr. R. 442, 24 S. W. 512, and authorities cited under section 813, subd. 6, White’s Annotated Code of Criminal Procedure. See, also, the case of Jones v. State, 53 Tex. Cr. R. 131, 110 S. W. 741, 126 Am. St. Rep. 776, and authorities there cited.

However, under the evidence we do not think a charge on alibi was called for, nor a charge on circumstantial evidence. Three of the state’s witnesses testify that on the occasion he went home with Miss Criss he had a pistol, and the fact that they say that he went home with her on the night of March 3d, while the defendant says it was on the night of March 4th, would not call for a charge on alibi, nor circumstantial evidence. Neither would the fact that defendant says it was a toy pistol, while they say it was a pistol of 38 caliber, and when he handed it to Bennett remarked, “Look out, it is loaded,” call for a charge on either of these subjects.

The complaint that the information and complaint had not been filed presents no ground for reversal of the judgment. It appears that the county attorney had delivered the information and complaint to the county clerk on the 13th day of March; that the defendant on the 14th day of March presented a motion for postponement on the ground that same had not been filed two days prior thereto, and the cause was postponed until March 24th. When the papers were delivered to the clerk on March 13th, it was a filing in law, and the court did not err in permitting the clerk to indorse on the papers the date of filing when called to his attention. Evidence was introduced that the papers were filed on March 13th, and it was proper for the court to permit such an indorsement to be made thereon. Starbeck v. State, 53 Tex. Cr. R. 192, 109 S. W. 162.

The other grounds in the motion for a new trial are: “The verdict is against the law.” “The verdict is against the weight of the evidence.” “Because justice has not been done”- — are too general to be considered.

The judgment is affirmed.  