
    SPARKS v. STATE.
    (No. 4104.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    1. Homicide <&wkey;167(l) — Evidence—Admissibility.
    In a prosecution for assault with intent to murder, prosecutrix having heen shot through a window while in bed at night, where a witness testified that the accused was talking with her about the assaulted person, his statement, “I spends my money on the-, and if she.don’t treat me right I will kill her,” was sufficiently identified as referring to the assaulted party and admissible. '
    [Ed. Note. — For other cases, see Homicide, Cent Dig. §§ 332, 333; Dec. Dig. &wkey;167(l).]
    2. Homicide <&wkey;234(6) — Evidence—Identification of Accused.
    In a prosecution for assault with intent to murder, prosecutrix having been shot through a window while in bed at night, and having testified that the accused had been sleeping with her, knew the location of the bed, and that she recognized his voice, it was not necessary to support conviction that she could and did see and recognize accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 487; Dec. Dig. &wkey;>234(6).]
    3. Homicide &wkey;>230 — Evidence—Assault to Murder — Abiuty oe Accused to See Prosecutrix.
    In a prosecution for assault with intent to murder, prosecutrix having been shot through a window while in bed at night, it was not necessary to a‘conviction that defendant could see prosecutrix on the bed, where the record shows that he had been sleeping in the bed with her, knew its location, that it was next to the window, and that he fired directly through this window.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 478; Dee. Dig. <&wkey;230J
    4. Criminal Daw <&wkey;940 — New Trial — Grounds — Newly Discovered Evidence.
    In a prosecution for assault with intent to murder, where prosecutrix was shot through a window while in bed, refusal of a new trial on the ground that witnesses would swear that since the trial they have gone to the house in the nighttime, one lying on the bed and the other standing just outside the window, and that a person lying on the bed could not recognize a person on the outside of the window in the nighttime when no moon was shining, was not error, since there is no contention that one could not hear another speak, or could not see the bulk of some one standing outside, and the testimony of prosecutrix was that she recognized defendant by his voice, and saw him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. &wkey;> 940.]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    Dee Sparks was convicted of assault to murder, and he appeals.
    Affirmed.
    Harry Tom King, of Abilene, for appellant. G. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

In the first bill of exceptions it is contended that the court erred in permitting the witness Hattie Chandler to testify as hereinafter related. She testified that she and Ethel Wyatt were at an entertainment given at the residence of Tom Smith; that while there appellant also came to the entertainment, and while there had a conversation with her, and she testified:

“He was talking to me about Ethel Wyatt. He asked me who she was with, and I told him she was by herself, and he asked me had she said anything about him, and I told him ‘No,’ and he said, ‘Well,’ he says, T spends my money on the son of a bitch, and if she don’t treat me right I will kill her.’ ”

Appellant contends that, if appellant did use this language, he did not individuate Ethel Wyatt. We think, taking the conversation as a whole, no other inference could be drawn; for the witness says he was talking to her about Ethel Wyatt at the time he used the language he did. Taking also the testimony of the prosecuting witness, Ethel Wyatt, as to the remarks he made to her that evening, it is clear that, if appellant made the remark, he had reference to Ethel Wyatt, and no other person. The prosecuting witness testified to going from the party to her home at Judge Tillet’s, she staying in the servants’ house; that shortly thereafter she went to bed. She then testifies:

“The first thing I noticed about any one being around there was when Dee Sparks called me by my name three times. I know it was Dee because I saw him. I recognized him also by his voice. He called me and says, ‘Ethel’; and he waited a little while, and he called me again, and he called me again, and he says, ‘Well, then, you ain’t going to talk is you?’ I didn’t say anything to him, and he says, ‘Well, you- -, you will say something.’ I said he called me three times by my name, Ethel. And he said, ‘Well, then you ain’t going to talk is you?’ and I didn’t say anything to him, and he says, ‘Well you-, you will say something.’ He was standing right up to the window when he made that statement. The window was closed. That is all he said. I were laying on the bed when he said that, where I could look out the window. I called Mr. Tillet, and it was a good while before I got him ■awake, but after the last statement that he made he shot me.”

The shooting was placed at about 3 o’clock in the morning, and appellant requested the court to instruct the jury “that unless they believed beyond a reasonable doubt that Ethel Wyatt could and did see and recognize appellant to acquit him.” Under the evidence in this case, wherein the prosecuting witness testified that appellant had been sleeping with her, and knew the location of the bed as being next to the window, and that she recognized his voice, it would not entitle appellant to an acquittal if she did not see appellant. It may be that she could only see the bulk of a person, but she testifies positively to him calling her three times, and to other remarks, and that she knew his voice. Appellant also requested the court to instruct the jury that before they would be authorized to convict they “must believe beyond a reasonable doubt that appellant could see tbe prosecutrix on tbe bed.” This is not tbe law, and the court did not err in refusing to give tbe charge. It would be immaterial whether be could see her or not, when tbe record shows that be bad been sleeping in tbe bed with prosecutrix, knew its location, and it was next to the window, and.be fired directly through this window; tbe ball striking the prosecutrix in tbe stomach.

Tbe only other ground alleged is that tbe court erred in refusing to grant a new trial on account of alleged newly discovered testimony. The witnesses swear that since the trial they have gone to this house in the nighttime, one lying on the bed, and the other standing just outside the window, and that a person lying on the bed could not recognize the person on the outside of the window in the nighttime when no moon was shining. If the prosecuting witness had tied her identification of appellant to a personal sight of him, there might be some merit in this application, but the woman, as shown by her testimony hereinbefore copied, said she recognized his voice, and repeats the language he used on that occasion.

There is no contention made that one could not hear another speak when occupying the relative positions, and it seems to be conceded that one could be heard, and it is also conceded that one lying in the position described could see the bulk of the person on the outside, and it is the most natural thing for a person to say who recognized the voice speaking to her at the same time seeing the bulk of this person that she both saw and heard the man, and knew who it was; for she recognized him by his voice.

The judgment is affirmed. 
      <£=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     