
    CARTER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Ckiminal Law (§ 1206)—Trial—Suspend-ed Sentence Law.
    The Indeterminate Sentence Act April 3, 1913 (Acts 33d Leg. c. 132), being void, did not repeal the Suspended Sentence Act Feb. 11, 1913 (Acts 33d Leg. c. 7), which act is expressly declared to be unaffected by the Second Indeterminate Sentence Act enacted August 18,1913 (Acts 33d Leg. [1st Called Sess.] c. 5) § 10, and hence it is improper to deny the submission of an accused’s plea, made in accordance with the Suspended Sentence Act.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    2. Criminal Law (§ 50S) — Accomplice — Competency—Accessory.
    Under Code Cr. Proe. 1911, art. 791, declaring' that persons charged as principals, accomplices, or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, accused, charged with assault with intent to murder, cannot introduce his brother as a witness in his behalf, where the brother was an active participant in the same affray out of which grew the prosecution, and was himself under indictment.
    [Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dee. Dig. § 508.]
    3. Criminal Law (§ 655) — Trial—Overruling of Objections.
    In a prosecution for assault with intent to murder, where accused’s brother was tendered as a witness, although he had participated in the affray and was also under indictment, the action of the court in reprimanding accused’s counsel and complimenting such counsel upon his knowledge of criminal law and long experience in practice thereof, when sustaining the objection to the brother’s competency, was not improper; the statute expressly declaring the brother to be incompetent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.] '
    4. Criminal Law (§ 426) — Evidence — Admissibility.
    Where accused claimed that he and his brother met the prosecutors by chance, and that the fight was not of his seeking, evidence that accused’s brother, when he left the place he had been during the evening, stated that he was going to his father’s to stay the balance of the night, it then being about 1 o’clock, is admissible, even though accused had met the prosecutors earlier in the evening, when they were carrying some young ladies home and had threatened them, using offensive language and had stated that he would get his brother and attack them later that night.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1011; Dec. Dig. § 426.]
    5. Homicide (§ 307) — Trial—Instructions.
    Where the evidence did not raise simple assault, but showed accused to be guilty of an assault with intent to murder, the refusal of a charge on simple assault was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dee. Dig. § 307.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Charley Carter was convicted for an assault with intent to murder, and he appeals.
    Reversed and remanded.
    S. W. Bishop, of Gorman, and J. R. Stub-blefield, of Eastland, 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
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder John Lantron.

The record shows that before the trial began, under Act of Feb. 11, 1913, p. 8, appellant duly filed a sworn plea in accordance with the statute, seeking a suspension of his sentence in the event he was convicted and his punishment fixed at five years or less in the penitentiary. He asked a special charge submitting this issue to the jury, which the court refused to give, to which he excepted. He also excepted to the charge of the court because not submitted by the court in his main charge, and preserved the point by his motion for new trial. It seems the court was of the opinion that Indeterminate Sentence Act April 3, 1913, p. 262, passed at the same session of the Legislature as the previous act above noted, repealed the said first act, and hence refused to submit the question at all to the jury. In this the court was in error, which necessitates a reversal of this judgment. This court, in repeated decisions, has held that the said Indeterminate Sentence Act was void. Ex parte Marshall, 161 S. W. 112. Whether void or not, it did not repeal the said Suspended Sentence Act. The two acts, without question, if the latter had been valid, should have been construed together, and both could stand, and the latter did not repeal the former. However, the said act of April 3, 1913, has been entirely substituted by the Legislature by Act Aug. 18, 1913, p. 4, passed at a special session of the same Legislature. Section Í0 of the last act expressly states that it shall not, in any manner, be held to in any wise repeal, limit, or affect said Act Feb. 11, 1913, p. 8.

Dave Carter, the brother of appellant, was in the same fight, and, the evidence shows, an active participant therein with the appellant. The grand jury indicted him at the same time it indicted appellant. Unquestionably from the state’s viewpoint, both by the indictment and the evidence, Dave Carter, was a principal, or an accomplice in the same offense with which appellant was charged. Under such circumstances our statute expressly provides (article 791, C. C. P.): “Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another.” This is peremptory, and the trial judge has no discretion to violate it in the trial of a case. Appellant, by his attorney, offered before the jury on the trial of the case to introduce Dave Carter as a witness for appellant. The judge himself refused to permit this and reprimanded appellant’s attorney, also in the presence and hearing of the jury, for so offering said witness, and he also complimented the attorney for his knowledge in criminal law and his long experience in the practice thereof. Of course, it is to be regretted that such matters should be injected into the trial of a case. But appellant’s bill, as to this matter, does not show any error in the action of the court under the circumstances.

The state’s ease would show that prior to the alleged assault one of the brothers of appellant had had a fight with one of John Lantron’s brothers, in which John Lantron’s brother was cut by appellant’s brother and appellant’s brother beat up. The assault in this case was shown to have occurred about midnight or after, one Saturday night, a dark, drizzly, rainy night; that the three Lantron brothers were going home from their father’s with the three Free young ladies; the brothers’ sister accompanying them; that appellant caught up with them, and not only, in effect, insulted the Lantron brothers’ sister, without any provocation, but also used in her presence, and in the presence of the other young ladies, very offén-sive epithets and cursed and abused the Lan-tron boys, and threatened, not only at that specific time, but later during the same night, to do them serious bodily injury, if not kill them, and also at the time stated to them that he would go and get his brother Dave Carter and carry out his threat against them that night; that he did go and get his brother Dave, waylaid the three Lantron boys as they were returning from the Frees to their home, and seriously and violently, and without any provocation whatever, assaulted them, shot at and cut one or more of them, and knocked down John Lantron with a piece of board off of the bridge where they assaulted them. Appellant denied, in effect, most all of this, and claimed that the meeting of him and his brother Dave with the three Lantron boys at the place where they assaulted them, and where the fight occurred, was by mere accident. While this was his contention, the great preponderance of the evidence on this point was in favor of the state and against appellant. Under these circumstances, as tending to support appellant’s said testimony and theory, he offered to prove, in effect, by two witnesses that Dave Carter, when he left where he was that night, stated that he was going to his father’s to stay the balance of the night, it then being about 1 o’clock at night. On objection by the state, the court excluded this testimony, and qualified appellant’s bills on the subject by stating that about 11:30 o’clock of the night of the assault, while the Lantron boys were returning from a social gathering with their sister and other young ladies, appellant rode up and after some conversation threatened to shoot one of the Lantrons, and called him a damn son of a bitch; that Russell testified that when appellant was leaving he told the Lantrons that he was going to wake up his brother Dave and with him go back to the bridge, where the fight occurred; that when the Lantrons were passing this point at the bridge that night, returning home, Dave Carter assaulted one of them about midnight, and drew a pistol on him, and that appellant shot one of the Lan-trons, and the court therefore held that Dave Carter’s declarations, when he was leaving the house that night, were self-serving and inadmissible under the circumstances. The great preponderance of the evidence shown by this record was against appellant on this issue, yet, as we understand the law, he was entitled to introduce this evidence, for it was for the jury to pass upon the -issue, and not the court, however improbable or untrue the court may have thought his declarations were at the time. See Branch’s Crim. Law, § 337, and cases cited by him.

Appellant has several complaints to the court’s charge, and to the refusal of the court to give certain of his special requested charges. The court’s charge, in our opinion, fairly and fully presented the issues to the jury, and none 'of appellant’s complaints thereto are well founded. None of his special refused charges should have been given.

The evidence, as presented by this record, does not raise simple assault, and the court did not err in not submitting it.

For the error above pointed out, the judgment is reversed, and the cause remanded.  