
    JAMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Homicide (§ 142) — Indictment — Issues and Variance — Time of Offense.
    Under an indictment charging the commission of murder on or about March 30th, proof that the crime was committed on March 29th would present no variance.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.]
    2. Statutes (§ 267) — Construction — Retroactive Operation — Procedure.
    Acts 33d Leg. c. 138, requiring that the judge furnish counsel with a copy of his charge, and that counsel before it is read to the jury present his objections in writing, distinctly specifying each ground, relating solely to procedure, applied to a trial subsequent to its enactment, though the offense was committed prior thereto ; defendant having no vested right in matters of procedure.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    3. Criminad Law (§ 1056) — Appear—Necessity of Exception.
    Where no exception was reserved to the charge under Acts 33d Leg. c. 138, requiring the trial court to furnish counsel a copy of his charge, to which any objection must be made in writing before it is read to the jury, and complaint was first made in the motion for new trial, any error in failing to charge, limiting the testimony of an accessory, was not available error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    4. Criminad Law (§ 942) — New Triad — Newdy Discovered Evidence — Impeachment of Witness.
    Newly discovered evidence, going merely to impeachment of a witness, is not a ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    5. Homicide (§ 308*) — Instructions — Degree.
    In the trial for murder, defendant was entitled to a charge on the degrees of murder as they existed under the law in force when the offense was committed, though between such time and the trial the degrees had'been changed by statute.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    6. Homicide (§ 325) — Appear—Instructions —Degree.
    In a trial for murder committed in March, had after Acts 33d Leg. c. 116, went into effect ameliorating the penalty as to murder in the first degree, but authorizing a more severe penalty as to murder' in the second degree, where the penalty of imprisonment for life awarded by the jury was no more sévere than could have been assessed under the act for murder in the second degree, the matter of defendant’s right to a charge of murder in the first and' second degrees, under the law in effect when the. crime was committed, was not jurisdictional, and, in the absence of proper objection, could not be raised for the first time in the reviewing court.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 693; Dec. Dig. § 325.]
    On Motion for Rehearing.
    7. Criminad Law (§ 954) — New Triad — Assignment of Errors — Objection—Charge of Court.
    A complaint that the verdict is “contrary to the law” points out no error in the charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    8. Criminad Law (§ 1038) — Appeal—Sufficiency of Objection Below.
    Defendant, who did not specifically object to the charge of the court before it was read to the jury, as required by Acts 33d Leg. c. 138, could not complain of the charge, either in the motion for a new trial or in a bill of exceptions filed after the term time, except under the conditions named in the act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dee. Dig. § 1038.]
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Ed James was convicted of murder, and he appeals.
    Affirmed.
    Walter L. Wilson, of Brazoria, for appellant. C. E. Lane, Asst. A tty. 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 for murder, found guilty, and his punishment assessed by the jury at imprisonment for life.

The crime which he is alleged to have committed is stated- in the indictment to have been committed on or about March 30th. Appellant insists that the evidence shows the crime to have been committed on March 29th. This would be an immaterial matter, and would present no variance. Appellant was not tried until in September, 1913. .At this time the law, which provides that the judge shall furnish counsel with a copy of his charge, and counsel must at that time, before it is read to the jury, present his objections thereto in writing, distinctly specifying each ground of objection, had gone into effect; it having become the law about two months before appellant was tried.

The record discloses that appellant’s counsel was furnished a copy of the charge before it was read to the jury. Yet he at that time presented no objections to it. He contends that, as the crime was committed before this law went into effect, even though he was tried subsequent thereto, the latter law had no application to the trial, and he can still complain of the charge in his motion for a new trial. This position is not tenable. Chapter 138 of the Acts of the Thirty-Third Legislature relates solely to the procedure to be had in the trial of cases; and, even though the offense was committed prior to its enactment, yet if the trial is had subsequent to the date this chapter became the law of the land, one should be tried in accordance with its provisions, and he must, when the charge is furnished him, present his objections to the charge in writing before the same is read to the jury. Mrous v. State, 31 Tex. Cr. R. 600, 21 S. W. 764, 37 Am. St. Rep. 834. In that case it is held that laws which relate to modes of procedure only, no one can be said to have a vested right in, and the state, on grounds of public policy, may regulate at pleasure, citing Laughlin v. Com., 13 Bush (Ky.) 261. In section 674 of Sutherland’s Work on Statutory Construction, it is said: “No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a statute deals with procedure only, prima facie it applies to all actions — those which have occurred or are pending, and future actions. If before final decision a new law as to procedure is enacted and goes into effect, it must, from that time, govern and regulate the proceedings” (citing a long list of authorities which will be found on pages 1226 and 1227 of volume 2, Second Edition). See,- also, Cooley on Constitutional Lim. (7th Ed.) p. 515; Black on Int. of Laws, § 106, p. 265. Consequently, as no exception was taken to the charge before it was read to the jury, and none taken during the progress of the trial, we cannot consider nor review those grounds in the motion for a new trial which seek to complain of the trial court’s charge. The provisions of chapter 138 of the Acts of the Thirty-Third Legislature prohibit us from so doing, unless the error should be one that is deemed in law a fundamental error.

The amended motion for a new trial sets up but three grounds. The first complains of the charge in not instructing the jury as to the law governing accomplice testimony as regards the testimony of John Green. As .hereinbefore shown, we cannot review that ground in the motion; it being first complained of in the motion for a new trial. The state did not introduce John Green in making its case originally, but rested its case on the testimony of Dr. Hampil, Bessie Spiller, and Irving Littleton. The testimony of these witnesses show that deceased was shot in the back, and Littleton swears he saw appellant fire the shots that killed deceased. Appellant by his testimony endeavored to prove that John Green fired the shots and killed deceased. The state then introduced Green, who testified that he did not do the shooting, but that appellant did do so. There is no testimony offered, either by the state or the defendant, showing or tending to show they were acting together in the matter. The state’s case is that appellant fired the shots; appellant’s case is that he did not do so, but that John Green fired the shots. The only thing that would tend to make Green an accessory is that he first said he fired the shots. He testified that he told this at appellant’s request, to give appellant a chance to escape. But he corrected this statement the next morning, and appellant was arrested. It does not appear that Green has ever been indicted for this offense, appellant alone being indicted; and, if this attempted concealment of the crime should be held to make him an accessory to the crime, the failure to so limit his testimony under the circumstances would not present reversible error, when no exception was reversed to the charge and complaint is made for the first time in the motion for a new trial under the provisions of the law hereinbefore cited.

The second ground in the motion for a new trial is that the evidence is insufficient to sustain the conviction. The testimony of Irving Littleton and Ellison Morrison would sustain the verdict, if no other witnesses had testified.

The third and only other ground in the amended motion for a new trial alleges newly discovered testimony. This testimony would only tend to impeach the witness John Green. It relates solely to remarks he made after the trial. One witness says he heard John Green say after the trial “that they were so long in calling him to go on the stand, he thought they were going to try him [John Green].” Another witness says “that after the trial he heard John Green say that when he was arrested he had paid a lawyer $150 to defend him and he expected to get all of it, or at least half of it, back; that he did not need a lawyer now.” None of this would go to show that Green was the guilty party in fact, nor would it tend to show that appellant was not guilty. It would simply go to impeach and weaken the testimony of Green, and it is no ground for a new trial. The court instructed the jury: “If you believe from the evidence that John Green shot and killed the said Ellison Flanagan, or you have a reasonable doubt as to whether or not he did, you will acquit the defendant.”

This disposes of all the grounds assigned in the trial court The term of court at which appellant was tried adjourned September 27th. Two months thereafter, on November 18th, in vacation, appellant files two papers in this case, in which he seeks, to raise the question that the court erred in not charging the jury on murder in the first degree and second degree, and in charging the jury only as to murder as defined by Chapter. 116 of the Acts of the Thirty-Third. Legislature. As this law Aid not take effect until July 1, 1913, and the offense was committed in March, it may be said he was entitled to have the court charge the jury in regard to penalty, the law in effect when he committed the offense, and define murder upon express and implied malice, and not instruct them under the law of the last Legislature. But he makes no complaint at the time the charge was delivered to him for inspection ; he makes no complaint in this respect even in the motion for a new trial, and does not seek to raise this question until two months after the term of court at which he was tried adjourned, and when the ease was pending in this court on appeal. So the question is, Is this such a matter as can be raised for the first time in this court? The new law ameliorates the penalty as to murder in the first degree as it formerly existed, but it authorizes a more severe penalty as to murder in the second degree, as it existed at the time of the commission of the offense. But the penalty assessed by the jury is no more severe than could have been assessed for murder in the second degree. Had this question been raised during the trial of the case, or reserved in an exception to the charge, so as to give the trial court an opportunity to rule thereon, we would feel inclined to sustain appellant’s contention. But those questions which can be raised for the first time in this court are such as to go to the jurisdiction of the trial court, not mere errors in procedure or in the charge, if the charge submits the offense alleged in the indictment. In our opinion this question cannot be raised for the first time in this court, for the trial court had jurisdiction of the offense; the indictment is properly drawn, and the jury was authorized by the charge to inflict a penalty of not less than five years— the minimum penalty formerly assessed for murder in the second degree. Had they not been authorized to assess this minimum penalty by the charge, we might take a different view of the matter, but the punishment authorized by the charge was the punishment authorized under the prior penalty, the minimum and maximum punishment being submitted; and, under such circumstances, it is not such error as is authorized to be raised for the first time in this court.

The judgment is affirmed.

DAVIDSON, J.

(dubitante). The opinion in this case involves very serious questions, growing out of the construction of recent acts of the Legislature. These acts are far-reaching, involving wide changes in the rules of procedure in the trial of criminal cases. Owing to the rush of work and the rapidity with which cases are being disposed of, I have not been able to give the matters involved such consideration as their gravity demands. Before agreeing to the construction sought to be placed on these statutes by my Brethren I desire to investigate more fully; therefore in this case I do not express any conclusion, but will investigate the questions, and when my conclusion is fully reached will so write. The questions involved are of too serious a nature to be decided without the fullest and maturest consideration.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing in this cause, contending that it has been the rule in this court “for 40 years that a person could complain of the charge of the court in a motion for a new trial,” and then proceeds to show that he has the following complaint in his motion: “Because of fact the verdict is unsupported by the evidence and contrary to law, and the court erred in entering judgment upon the verdict.” This would raise only the question of the sufficiency of the testimony to support the- verdict, and no other question; and, as shown in the original opinion, the evidence offered in behalf of the state is amply sufficient. Either appellant or John Green foully murdered the deceased, and this issue was submitted to the jury in language frequently approved by this court.

The complaint that the verdict is “contrary to the law” points out no error in the charge of the court, if error there be.

Appellant also contends that, as the court granted time in which to file bills of exception, and as he filed exceptions to the charge within the time granted, even though they were filed 52 days after court adjourned, the criticisms of the charge contained in the bills of exception should be considered, although he had not objected to the charge at the time it was given, nor in the motion for a new trial. The court, in approving these bills, says: “The charge was submitted to counsel for defendant, and no exceptions to the charge were made, and no special charge was asked.” And by reference to the motion for new trial it is seen that no complaint of the charge is there made in respect to the matter complained of, but these complaints are sought to be made for the first time 50 days after court had adjourned for the term. While it has heretofore been the rule that complaints of the charge may, for the first time, be made in the motion for a new trial, it has never been the rule that these complaints could be made after court had adjourned for the term. And it is not the law now that complaints of the charge can be made for the first time in the motion for a new trial. Under the law enacted by the Legislature at its last session, it was provided that when the charge was submitted to counsel, he must then in writing file his objections to the charge. Had this been done, then he could later prepare his bills. But as appellant filed no objections to the charge at the time it was presented to Mm, and at ■tile time it was read to the jury, he could not later complain oí it, either in the motion for a new trial nor in a bill of exceptions, filed after term time except under the conditions named in the.law. See article 743 as amended by the Acts of the Thirty-Third Legislature.

The motion for rehearing is overruled.  