
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Criminal Law (§ 80) — Trial of Accomplices.
    An accomplice may be tried and convicted before the conviction of the principal.
    [Ed. Note. — E\>r other cases, see Criminal Law, Cent. Dig. § 103; Dec. Dig. § 80.]
    2. Criminal Law (§ 1166) — Appeal—Haemless Eeeoe — Refusal of Severance.
    Any error in overruling a motion for a severance as to two persons claimed to be accessories to accused could not have prejudiced him, where the cases were dismissed against both of such persons, and one of them testified for accused, and the other was available.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3109; Dec. Dig. § 1166.]
    3. Ceminal Law (§ 622) — Trial—Oedee of Trial.
    Accused and two others were indicted separately, the latter as accessories, and, when the case was called, they agreed that accused should be tried last, whereupon accused moved for a “severance” as to the accessories, which motion was overruled and the cases against the accessories dismissed. Held, that the procedure was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 622.]
    4. Criminal Law (§ 598) — Denial of Continuance — Diligence.
    A motion by accused for a continuance to procure witnesses was properly overruled where the bill of exceptions showed no diligence to procure the witnesses, stated no reason for their absence, failed to show their residence, and merely stated that accused applied to the clerk for subpoenas which were issued, but had not been returned for want of time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §| 1385-1341; Dec. Dig. § 598.]
    5. Criminal Law (§ 1144) — Appeal—Admission op Evidence — Presumptions.
    The bill of exceptions in a prosecution for assault to kill recited error in permitting accused to be asked whether he and his wife were at the time living together as husband and wife, and whether he had not cursed, abused, and ran her from home, because such evidence was immaterial and irrelevant, and that it was error to permit the state to inquire into a matter between husband and wife in which the person assaulted was not interested, and because it appeared that, if accused and his wife were separated, they had separated long before accused’s trouble with the person assaulted. Held, that, in absence of a further showing in the bill as to the facts, it could not be said that the trial court erred in admitting the evidence; it being presumed that there was no error unless the bill shows it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3029; Dec. Dig. § 1144.]
    6. Homicide (§ 340) —Appeal — Habmless Error — Instructions.
    Any error in instructions on assault with intent to kill was harmless where accused was only convicted of aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.]
    7. Criminal Law (§ 72114) — Trial—Argument — Comments op Counsel — Failure to Testify.
    State’s counsel may comment upon the fact that a witness subpoenaed by accused and in court did not testify.
    [Ed. Note. — For other cases; see Criminal Law, Cent. Dig. § 1673; Dee. Dig. § 721%.]
    8. Criminal Law (§ 1122) — Appeal—Bill of Exception — Questions Presented for Review.
    A bill of exceptions to the refusal to give a requested charge which does not show any evidence making the charge applicable is too general to be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §'§ 2940-2945; Dec. Dig. § 1122.]
    9. Criminal Law (§ 1091) — Appeai>-Bill op Exceptions — Admission op Evidence.
    A bill of exceptions to the introduction in evidence of “all of the filed papersi in said cause, such as indictments, subpoenas, bonds, attachment,” etc., on the ground that they were immaterial, but not containing a copy of any of. the papers, does not show reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2933; Dec. Dig. § 1091.]
    10. Assault and Battery (§ 92) — Sufficiency of Evidence — Aggravated Assault.
    Evidence in a prosecution for assault with intent to kill held to sustain a conviction of aggravated assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    Appeal from District Court, Howard County ; Royall G. Smith, Special Judge.
    Clayton Black was convicted of aggravated assault, and he appeals.
    Affirmed.
    F. P. Brewer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   PRENDERGAST, J.

In September, 1910, appellant 'was indicted for assault with intent to kill A. L. Echols on August 15, 1910. He was convicted of aggravated assault only, .and his penalty fixed at a fine of $150.

There appears in the record an application for a continuance dated and signed October 3, 1910. There is no judgment of the court showing any action on this motion. There is no bill of exceptions to the court’s overruling it. By inference we conclude that, if it was acted upon by the court at all, it was on October 3, 1910. It seems that the grand jury at the same time appellant was indicted also by separate indictments indicted J. T. Johnson and J. L. Johnson, as accessories of appellant in the same transaction. When the case was first called for trial on October 3, 1910, the appellant and the two Johnsons entered into a written agreement, whereby they agreed that one of the Johnsons should be placed on trial first, the other next, and then that the appellant should last be placed on trial. The appellant made a motion for severance on these grounds. The object of it was that he wanted to use the Johnsons as witnesses in his behalf.

The district attorney thereupon, with the approval of the court, dismissed the cases against both the Johnsons, stating as a reason therefor that there could be no conviction of an accomplice before the conviction of the principal. This was a wrong reason and not the law, but no injury is shown to appellant.

Both of the Johnsons attended the trial of the case against appellant. He used one of them as a witness, but not the other. The appellant by hill of exceptions complains of the action of the court in overruling his motion for a severance. The only object he had in a severance, even if there could have been a severance, where there were separate indictments, would be that the Johnsons should be tried first so that he could use them as witnesses and that was the ground of his motion for severance. When the cases were dismissed by the state and he used one of the parties and the other was at his service but he did not use him, there could, of course, be no injury to him, nor was there any error in the proceedings of the court in this respect. Streight v. State, 138 S. W. 742. The judgment shows that the case was tried on October 7, 1910. This also shows that, when the case was called for trial, the appellant was present in person, and that his attorneys were present and all parties announced ready for trial.

By bill of exceptions No. 1, appellant complains of the action of the court in overruling his motion for a postponement of the cause to some future day of the term of the court. There appears to have been no such motion in writing filed. The bill does not show any sufficient ground for a postponement of the case. It shows no diligence for the witnesses, whom he states were absent without his procurement or consent. He does not show why they were absent, where they resided, and only states that on September 30, 1910, he applied to the clerk for subpoenas for said witnesses to their respective places of residence which were issued by the clerk and placed in the hands of the proper officers, and that the processes had not been returned for want of time. The way the matter is presented to us, no error is shown by the court in overruling the oral motion to postpone.

Bill No. 5, except the style and number of the case, the signature of the attorneys for appellant, and the approval of the judge, is as follows: “Be it remembered on the trial of this cause the court erred in permitting the state’s counsel to ask the defendant, while a witness upon the stand, whether or not defendant and his wife were at the time living together as husband and wife, and whether at any time that defendant and his wife so lived together he cursed and abused his said wife and ran her off from home, because the same was immaterial and irrelevant and prejudicial to the interests of this defendant, and it was error for the court to permit state’s counsel to inquire into a matter between husband and wife in which the said A. L. Echols was in no way, at any time, interested or concerned, and because it is shown that; if the wife and defendant were separated, they had separated long prior to any trouble that thereafter arose between defendant and the said A. L. Echols, and in which the said A. L. Echols was in no way concerned or interested, to which action of the court the defendant at the time excepted, and here tenders his bill of exception, and asks that same be allowed and filed as part of the record in this case.” It will be noticed that this bill does not state the facts with reference to the case so that it can be told whether there was any error in asking these questions or not. Neither is it shown that they were answered or what the answer of the witness, the appellant, was; nor is it shown what injury or how appellant could be injured by asking the questions. In all probability, if the bill had been full on the subject, it doubtless would have appeared that the questions were proper, and that even answers thereto may have been proper. We must presume under the law that there was no error, unless the bill shows it. This bill does not show any error. See White’s Annotated C. O. P. § 857, p. 557, and section 1123, p. 732, for the rules and collation of authorities on this subject..

Some other of appellant’s bills and grounds of the motion for new trial attack certain paragraphs of the court’s charge on the subject of assault with intent to kill. The verdict of the jury expressly found the appellant not guilty of an assault with intent to kill, and found him only guilty of aggravated assault; so that whatever errors, if any, were committed by the court on this subject, are immaterial and are 'no cause of complaint by appellant.

Another bill complaining of the action of the court in permitting the state’s counsel to make remarks concerning defendant’s wife’s failure to testify as qualified by the judge, which shows that the appellant had applied for a subpoena for her, and, although not served, that she attended at the trial, which appellant knew, and that he did not place her upon the stand, presents no error. It has many times been decided by this court that the state’s counsel may comment upon this fact. Locklin v. State, 75 S. W. 308; Armstrong v. State, 34 Tex. Cr. R. 250, 30 S. W. 235; Battles v. State, 53 Tex. Cr. R. 208, 109 S. W. 195, and many other cases unnecessary to cite. This is the uniform holding of this court.

By another bill and ground of the motion for new trial, appellant claims that the court ought to have granted him a new trial, because of newly discovered evidence. This evidence is not shown even to be of such a character as to authorize a new trial. The affidavits of the purported witnesses are not attached, and there is no diligence shown to discover their testimony. No affidavit is attached of either of the purported witnesses showing what they would testify to.

By another bill appellant complains that the court erred in refusing to give this special charge requested by him: “The defendant, Olayton Black, had a right to go to Echols in a peaceable way and manner, and demand a retraction of the slanderous words concerning defendant’s wife’s character, and in so doing, if the defendant had reasonable grounds to fear that the said Echols would assault or offer defendant serious violence, when defendant approached the said Echols in a peaceable way and manner and demanded a retraction of the slanderous words and utterances of and concerning defendant’s wife, then, in such event, the defendant would have the right to arm himself and quietly seek the said Echols and demand a retraction of the slanderous words concerning his wife’s character, and the failure of- the court to so instruct the jury by its charge is error.” There is no reason given in the bill of exceptions why this charge should have been given, and the matter is not presented in his motion for new trial at all. This is too general to require this court to consider this bill. Ryan v. State, 142 S. W. 878, and Berg v. State, 142 S. W. 884, and the authorities cited therein, both recently decided but not yet officially reported. The testimony in this case did not call for any such charge, and it presents in no way any reversible error as no injury is shown by the bill or otherwise to appellant because of the refusal of the court to give the same. Article 743 (new) 723 {old) O. C. P.

By appellant’s bill No. 10, which is very brief, he complains that “the court erred in permitting the state to introduce in evidence, over the objection of the defendant, all the file papers in said cause, such as in•dictments, subpoenas, bond, attachment, and in fact all the papers filed in said cause, because the. same is irrelevant, immaterial, and can serve no legitimate purpose in this case, and does not tend to prove any of the main facts sought to be shown in this case.” This in effect is all of the bill. It will be seen that it does not copy any of the file papers which he complains were introduced in evidence, nor give the substance thereof, nor does he give such a statement of the facts from which we can tell whether there was any error or not. The court in allowing the bill made this explanation: “When papers were offered, it was disclosed that subpoena had been issued for defendant’s wife, and was returned not executed because ‘not found,’ and the further explanation that she was present during the trial, was sworn in as a witness, but was never called.” It therefore seems that it was proper to introduce some of these papers. At least, it is not shown by the bill that there was any •error in the introduction of them; nor is it shown how or in what way the appellant was materially injured thereby. Under the circumstances, no reversible error is presented.

The evidence is amply sufficient to sustain the verdict. The evidence, briefly stated, of the immediate shooting of the injured party Echols by the appellant, shows that Echols was a sickly, weak man, and was then sick, had been sick and unable to work for a year or longer just prior thereto, weighing only about 130 pounds. The appellant was a strong, vigorous man, much .younger than Echols, and weighing 1G5 pounds. Late one evening Echols went in to .a drug store to get and did get some medicine, taking with him his little boy about four years old, for whom he got some drink •or ice cream. While the child was eating or drinking this, Echols sat by him on a stool, with his back towards the front door. The appellant claimed that Echols had used in his presence a few days before that some insulting remark about appellant’s wife, and that later, a day or two before the assault, .he had used insulting words concerning her, which were communicated to appellant. Echols denied all this. The appellant had prepared himself with a six-shooter on his person, and had hid in a butcher shop in the little town where the shooting occurred a ■double-barrel shotgun, both for use on Echols. Appellant had seen Echols a time or two or three after he claimed Echols had used to him insulting remarks about appellant’s wife; that he saw him go into this drug store with his child; that he walked by the drug store, and looked in and saw the situation. After walking by he turned and went back into the drug store, and the first that Echols knew of his presence the appellant grabbed him by one arm, the left arm, and grabbed his right hand with the other. In the struggle to get up appellant seized the stool or chair on which Echols was sitting, and attempted to or struck him therewith. Echols was armed with a six-shooter, and tried to get it out, but could not make it work, and did not at any time present it towards appellant. As soon as the row began between them, the proprietor of the drug store got between the parties, caught the appellant, backed him away from Echols, and tried to prevent his shooting Echols. Appellant was all this time trying to get out his six-shooter, did get it out, and in the struggle with the drug store proprietor he shot off the pistol once into the floor. The drug store man holloed to Echols to run or get out of the way, and he attempted to do so, ran out the front door. The appellant then had been turned loose, or got loose from the drug store proprietor, and fired his pistol four times at Echols as he was running out of the door. The sixth shot struck him in the back of the right hand. Echols ran out into the street. As soon as the appellant emptied his six-shooter at him, he went out of the drug store, ran or walked very rapidly from there to the butcher shop where he had hid his double-barrel breech loader, ran in and seized it, and ran back out, and shot both barrels loaded with large shot at Echols, missing him the first time, but striking him the second time in the shoulder, neck and jaw, inflicting upon him serious wounds. Echols was all this time trying to get away from appellant, and finally succeeded in getting, back into a store where his wounds were dressed by a physician. No attempt at any time by any one was made to hold or prevent Echols from shooting at or shooting appellant. The appellant was the aggressor all the time in the whole matter.

There being no reversible error, the judgment will be in all things affirmed.  