
    JOHNS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 25. 1911.
    Rehearing Denied Nov. 29, 1911.)
    1. CRIMINAL Daw (§ 1091) — Appeal — Record — Questions Presented.
    To obtain review, a bill of exceptions, complaining of the erroneous admission of a confession, must contain the confession.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2832; Dec. Dig. § 1091.]
    2. Criminal Daw (§ 518) — Evidence—Confessions.
    A confession, stating that accused, being under arrest charged with assault with intent to murder, after having been cautioned by the one to whom the confession was made that he did not have to make any statement, and that any statement made would be used against him, is admissible in evidence; the warning being sufficient under the statute.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1157-1162; Dec. Dig. J 518.]
    3. Infants (§ 69) — Punishment—Place of Imprisonment — 'Validity of Act.
    The statute, providing for the incarceration of criminals under 16 years of age in a reformatory, instead of the penitentiary, is not unconstitutional.
    [Ed. Note. — For other cases, see Infants, Dec. Dig. § 69.]
    4. Criminal Daw (§ 1129) — Appeal—Assignments of Error.
    An assignment of error that the court erred in his main charge, wherein he attempted to charge the law defining who are principals, is too general to be considered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.]
    5. Criminal Daw (§ 1172) — Appeal—Harmless Error — Instructions.
    In a prosecution for assault with intent to murder, where accused was prosecuted as a principal, though he did not do the act, and the court fully charged as to the defense, and no errors in the charge were pointed out in the motion for new trial, any error in charging the law as to principals will, in view of White’s Ann. Code Or. Proc. art. 723, providing that a judgment shall not be reversed, unless the error was prejudicial to defendant, which error shall be excepted to at the trial, or on motion for new trial, be considered harmless.
    [Ed. Note. — For other cases, see Criminal Daw, Dec. Dig. § 1172.]
    6. Criminal Daw (§ 939) — New Trial— Newly Discovered Evidence.
    Where the age of defendant was material in fixing his punishment, and where both defendant and his father testified as to his age, defendant stating that he did not know where he was bom, the father stating that defendant was bom in Waco, newly discovered evidence that a witness would testify that accused was born on his place, and was less than 16 years old, was not ground for new trial; for this fact must have been known to accused or his father, and diligence could not have been exercised in obtaining this testimony.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2318-2323; Dec.- Dig.- § 939.]
    Appeal from District Court, Bosque County; O. D. Dockett, Judge.
    Dawrenee Johns was convicted of assault with intent to murder, and appeals.
    Affirmed.
    J. P. Word, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury of Bosque county, charged with assault with intent to murder, and when tried he was convicted, and his punishment assessed at two years confinement in the penitentiary.

It appears from the record that - appellant and three other negroes left Ft. Worth together, attempting to ride freight trains on the Sante Fé. At Kopperl they were discovered, and a short distance this side of Kop-perl they were ordered off the train. They got off, but upon the train starting they got on again, riding on the rods under the cars.' The conductor and two brakemen went to where the negroes were, and ordered them off the train. They got off, but when they did do so one of the negroes drew a pistol and fired at the brakemen and conductor, shooting four times, striking the conductor in the thigh. Appellant did none of the' shooting, but, if the brakemen and conductor are to be believed, he was with the one doing the shooting, with rocks in both hands, ready to throw, if the brakemen and conductor had not retreated. The four negroes remained together, and acted together in all matters until their arrest.

The indictment contains two counts: One charging appellant as a principal, and the other charging him with being-an accessory. After the evidence was introduced, the court submitted to the jury only the first count in the indictment — the one charging appellant with being a principal in shooting the conductor..

The first ground in the motion for a new trial complains that the court erred in. admitting what purported to be a confession of the defendant; the reasons assigned in the bill being: “Objected to by his counsel, for the reason that the same was not such a statement as the law contemplates may be offered in evidence against the defendant, and because it was not a voluntary statement, and because the same was the act of a little ignorant negro boy who could not read, and that if he had signed the same he did not know what he was doing, and the same was not admissible against him for any purpose.” The bill does not contain the confession admitted in evidence, and is 'incomplete in this respect, and for this reason the question is not properly presented to this court for review. A bill of exceptions must contain all of the proceedings complained of and the facts incident thereto, so that this court may intelligently pass on the matter from the bill alone, without referring to the statement of facts, or other facts of the record.

But if we turn to the statement of facts, we find that the alleged confession contains all the essentials that this court has held essential to render it admissible in evidence. The statement says: “I, Lawrence Johns, being now under arrest and in the custody of H. W. Randal, sheriff of Bosque county, Texas, on a charge of assault with intent to murder, after having been cautioned and warned by the H. W. Randal, to whom this statement and confession is made, first, that I do not have to make any statement at all; second, that any statement made by me may be used in evidence against me on my trial for the offenses concerning which this confession is made — do now here, after being so cautioned and warned, voluntarily make the following written statement and confession concerning said offense.” This warning is in literal compliance with the statute, and the opinion of a majority of this court in the cases of Henzen v. State, 137 S. W. 1141, and Burton v. State, 137 S. W. 1145. The writer of this opinion did not agree with the majority of the court in this construction, as will be seen in the dissenting opinion in the Henzen Case, yet we have followed that construction since that opinion was rendered, and, inasmuch as the confession, with regard to warning, etc., met the requirements announced in those cases, the objections made in the bill were properly overruled by the court.

Appellant objects to the twenty-sixth paragraph of the court’s charge, “because this law is in conflict with article 34 of White’s Annotated Penal Code, and is unconstitutional.” Article 34 of the Penal Code provides: “No person shall in any case be convicted of any offense committed before he was of the age of nine years; nor any offense committed between the ages of nine and thirteen unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” Inasmuch as, according to the defendant’s theory, he was over 14 years of age, and under the state’s theory more than 16, this article of the statute had no application; and that provision of the law providing for the incarceration of defendants under 16 years in the reformatory, instead of the penitentiary, is not unconstitutional, but is a wise and salutary provision of the law.

The next assignment of error is: “The trial court committed an error in that part of his main charge wherein he attempted to charge the law defining who are principals, and the same is here now assigned as error.” This is too general to be considered. It points out no error, and gives to this court no information as to what part of said charge is a mistake, nor what part thereof is calculated to injure the rights of the defendant. Article 723 of the Code of Criminal Procedure provides that the judgment of trial courts shall not be reversed by this court, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on motion for new trial. See Pena v. State, 38 Tex. Cr. R. 333, 42 S. W. 991; Bailey v. State, 45 S. W. 708; Godwin v. State, 39 Tex. Cr. R. 404, 46 S. W. 226. While we do not wish to be understood as approving the charge on principals in toto, yet, as no errors are pointed out in the motion for a new trial, and the court instructed the jury; fully on the defensive theory of defendant, no such error was committed as was calculated to injure appellant. The case, in so far as his defense under the evidence, was presented in a very favorable light.

The only other ground in the motion is that appellant should have been granted a new trial on the ground of newly discovered evidence, in that Trave Jones would testify that defendant was not 16 years of age at the time of the commission of the offense. The objection in this respect is: “Defendant since this trial, to wit, on the 25th day of April, 1911, received information of this newly discovered evidence in the manner following, to wit: J. P. Word, who since said trial has been employed to defend this defendant in another case growing out of the same facts and circumstances, informed him on to-day about the whereabouts of said witness, and as to the materiality of his evidence, and defendant believes said information to be true and that said newly discovered evidence can be produced on another trial of this cause. Supporting affidavits cannot be filed herewith because of the want of time.” The affidavit of Mr. Word is not attached, showing that he had so told defendant, nor the source of his information. The evidence in the case shows that in the confession made to the county attorney defendant stated he was 16 years old in May, 1910. On this trial defend■ant stated lie did not know when he was '.horn, nor how old he was. His father in direct examination stated defendant was born ■on the 8th of May, 1896, which would make the defendant not quite 15 years old at the date of the commission of this offense. However, on cross-examination, his father stated: “Defendant was horn in Wac<3, and we lived there 6 or 7 years. After that we lived in Waxahachie about 2 years, and have lived in Et. Worth 10 or 11 years.” This would make ■defendant more than 16 years of age, and this issue was submitted to the jury, and ■they found against appellant’s contention. If he was born on Trave Jones’ Place, defendant and his father knew this fact as well before as after the trial of the case.

No reversible error being complained of in the motion for a new trial, the judgment is -affirmed.  