
    BOLES et al. v. STATE.
    (No. 8847.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    On Rehearing, Jan. 13, 1926.)
    1. Criminal law <&wkey;1099(IO) — Statement of facts not considered, where statement not signed by trial judge.
    Statement of facts, not signed by trial judge, cannot be considered.
    2. Criminal law <§==>! 182 — Record showing no fundamental error, conviction will be affirmed, where court cannot consider statement of facts.
    Where record discloses proper indictment, charge, verdict, judgment, and sentence of defendants, and discloses no fundamental error, and statement of facts, not being signed, cannot be considered, conviction of manslaughter will be affirmed.
    On Behearing.
    3. Criminal law <g&wkey;>-1166'/2 (6) — Refusal to allow exercise of statutory allowance of peremptory challenges reversible error, without showing injury.
    Under Vernon’s Ann. Oode Or. Proo. 1916, art. 691, allowing two defendants, tried together, 8 peremptory challenges each, refusal, to allow them to exercise more than 15 peremptory challenges was reversible error, irrespective of showing of injury from the error.
    4. Homicide <&wkey;>!66(9) — Rejection of testimony rebutting state’s theory of conspiracy held error.
    In prosecution for manslaughter, testimony of defendant’s wife as to a conversation with defendant and her brother, prior to the homicide, in which brother agreed to try to make deceased desist from visiting defendant’s house, was admissible to rebut state’s theory of conspiracy to kill deceased, under pretext that deceased and defendant’s wife had been ’ criminally intimate.
    5.Homicide <&wkey;>166(9) — Knowledge by husband of immoral conduct of wife held admissible, to show condition of defendant’s mind over improper relations between wife and deceased.
    In prosecution for manslaughter, where state’s theory was that there was a conspiracy to kill deceased under pretext that deceased and defendant’s wife had been criminally intimate, questioning defendant regarding his knowledge of his wife’s improper relations with another was admissible to show condition of defendant’s mind over alleged improper relations between his wife and deceased, under rule that specific acts of immoral conduct of wife, known to husband, are admissible in such a case.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.
    Calvin and Claude Boles were convicted of manslaughter, and they appeal.
    Beversed and remanded on rehearing.
    Sanders & Sanders and Davis & Davis, all of Center, for appellants.
    Major T. Bell, Dist. Atty., of Tenaha, Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s -Atty., both of Austin, for the State.
   BAKEB, J.

The appellants were tried and convicted in the district court of Shelby county of manslaughter, and Calvin Boles’ punishment was assessed at five years in the penitentiary, and Claude Boles’ punishment was .assessed at two years in the penitentiary.

We find a motion of the state in this .case to strike out the statement of facts, alleging that no duplicate of same was ever filed in the district clerk’s office as required by law. It becomes unnecessary for us to pass on this motion at this time, for the reason that, upon an inspection of what purports to be a statement of facts filed in this court by the appellants, we find that same is not signed by the trial judge who tried the case, and of course, under such circumstances, we are unauthorized to consider said statement of facts in any particular.

The record discloses proper indictment, charge of the court, verdict of the jury, judgment and sentence of the appellants, and, no fundamental errors appearing therein, we are forced to the conclusion that this case must be affirmed. Of course, we observe many questions raised by appellants to the action of the trial court, but without a statement of facts we could not determine whether same constitutes any error or not.

Eor the reasons above stated, the judgment of the trial court is affirmed; and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Rphearing.

BAKER, J.

The appellants, Calvin and Claude Boles, were jointly indicted with E. D. Cammack and Elbert Boles for the offense of murdering W. R. Cook, and said appellants, after severance, were convicted in the district court of Shelby county of manslaughter, and Calvin Boles’ punishment assessed at five years, and Claude- Boles’ punishment assessed at two years, in the penitentiary.

This court refused to consider the statement of facts in this case at the last term, on account of same not being signed by the trial judge, since which time a proper showing has been made, which authorizes us now to consider same.

It was the contention of the state that all of the defendants named in the indictment had entered into an agreement or conspiracy to kill the deceased, under the pretext that the deceased and the sister of the said Cam-mack, wife of Calvin Boles, had been unduly and criminally intimate, and all ,of them were present and acting together at the-time of the homicide.

It was the contention of the appellant Calvin Boles that his wife had informed him, the night preceding the morning of the killing, that she had carnal intercourse with the deceased, and, believing said statement to be true, he killed the deceased upon the first meeting thereof, and also by his testimony injected into the case the issue of the necessary defense of his brother, appellant Claude Boles. The record discloses that, at the time the appellant Calvin Boles shot and killed the deceased, Claude Boles and the deceased were engaged in a fight, and the latter had called to his wife to bring him his gun, and that she was approaching the scene of the difficulty with a gun just before the shooting occurred.

It was the contention of Claude Boles that he knew nothing of the intention of Calvin Boles to kill the deceased, and had no understanding with any of the other parties, or knowledge, to the effect that they intended to kill the deceased, but that he incidentally went to the scene of the homicide, without any knowledge of Calvin Boles intending to come or be at said place. The record further discloses that after all the defendants, together with the deceased, had assembled at the scene of the homicide, Claude Boles and the deceased had a dispute over the deceased’s going to the residence of Calvin Boles in his absence, which culminated in a' fist fight between them, during which time the deceased was killed by Calvin Boles, as above stated.

There are many questions raised by appellants in their brief, but we will only discuss such questions as we think demand our attention, and which are likely to arise upon -another trial in the court below.

Bills of exceptions 1 to 3, inclusive, complain of the action of the court in refusing to permit the appellants to exercise 16 peremptory challenges. Said bills show that appellants had used 15 challenges, and attempted to exercise their sixteenth challenge on the last two jurors selected, which the court refused to permit, as shown by his qualification to said bills, because he overlooked the fact that two defendants were being tried, instead of one, and because his attention was not specifically called to same, and no injury was shown to appellants. Art. 691, Vernon’s Ann. C. C. P. 1916, states:

“In capital cases, both the state and defendant shall be entitled to fifteen,- peremptory challenges; and, where there are more defendants, than one tried together, the state shall be entitled to eight peremptory challenges for each of said defendants; and each defendant shall be entitled to eight peremptory chai-' lenges.”

We think the action of the learned judge in this instance was clearly erroneous, and that under the law it was not incumbent upon the appellants to show injury, but that, when they are deprived of this right to exercise their full number .of peremptory challenges, there is but one thing for this court to do, and that is to reverse the case.

Complaint is also urged by bill of exceptions No. 6 to the action of the court in refusing to permit Brooksie Boles, wife of the appellant Calvin Boles, to testify to a conversation between her, her husband, and her brother, L. D. Cammack, on Sunday night prior to the homicide the following Tuesday morning, in which her brother agreed to see the deceased and talk to him, and try to get him to desist from visiting the house and premises of Calvin Boles in his absence. We are of the opinion that this testimony was clearly admissible in rebuttal of the state’s theory of a conspiracy.

By bill of exceptions No. 9 complaint is made to the action of the court in permitting the state to interrogate the appellant Calvin Boles, on cross-examination, relative to a certain church trial in which he, the appellant, admitted that one Bib Bounds had informed him, appellant, that there had been improper relations between appellant’s wife and one Whitten. We are of the opinion that there was no error in the admission of this testimony, and that same was admissible for the purpose of showing the condition of appellant’s mind over the alleged improper relations between his wife and the deceased. Specific acts of immoral conduct of the wife, known to the husband, are admissible in this character of cases. Bozeman v. State, 85 Tex. Cr. R. 657, 215 S. W. 319.

For the errors above discussed, we are of the opinion that the judgment of the trial court should he reversed and remanded; and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Court of Criminal Appeals, and approved by the court. 
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