
    PITTS v. STATE.
    (No. 7747.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.)
    1. Criminal law <@=603(11) — Reoital in application for continuance, based on absent witnesses, held not to show diligence.
    Recital, in application for continuance based or\ absence of witnesses in S. county and in F. county, that a subpoena was delivered to sheriff of S. county, held not to show diligence to obtain witnesses living in F. .county.
    2. Municipal corporations <@=180(3) — Office of deputy marshal authorized by law.
    In prosecution for aggravated assault on deputy marshal of city, indictment not subject to motion to quash on theory of nonexistence of office of deputy marshal of a city, in- view of Vernon’s Sayles’ Ann. Civ. St. 1914, or Complete Tex. St. 1920, art. 809, authorizing such office. .
    3. Criminal law <S=!09I (I I) — Bill of exceptions in question and answer form not considered.
    Bill of exceptions held not to be entitled to consideration because in question and answer form.
    4. Criminal law <§=l 120(3) — Bill 6f exceptions not setting out' 'answer to question objected to held not to present error.
    Bill of exceptions not setting out answer of witness to question objected to held not to present error.
    
      5. Criminal law <S=»76I (9) — Court held justified in assuming injured party was officer, fact not being controverted.
    Where, in prosecution for assault, fact that injured party was officer was not controverted, court could assume the fact as true.
    6. Arrest <§=^63(3) — Definition of statutory phrase with reference to authority of officer ' to arrest without warrant held not erroneous.
    Trial court’s definition of phrase in Vernon’s Ann. Code Cr. Proc. 1916, art. 259, authorizing arrest without warrant in certain cases, “in his presence or within his view,” as meaning that officer could arrest without warrant when he could detect offender by sight or hearing by reason of what he did or said, held not erroneous.
    7. Criminal law <®=>1122(1) — Failure to show when exceptions to charge taken or special charges asked held to preclude consideration of bid of exceptions relating thereto.
    Where there was nothing upon either exceptions taken to court’s charge, or special charges asked, showing when same were presented, and nothing appeared in bill of exceptions to supply such defects or disclosed whether the exceptions to the charge were taken, or special charges asked, at time required by statute. held, that bill of exceptions to charge given or refusal of special charge could not be considered.
    8. Criminal law <@=>l 159(3) — Solution of conflicting testimony for jury.
    Where, in prosecution for aggravated assault, testimony was conflicting as to who began difficulty, solution of question was for jury.
    Appeal from Scurry County Court; Horace Holley, Judge.
    H. Pitts was convicted of aggravated assault;, and he appeals.
    Affirmed.
    Rosser & Smith, of Snyder, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Scurry county of an aggravated assault, and his punishment fixed at a fine of $100 and six months in the county jail.

G. E. Wills was deputy marshal of the town of Snyder, and on the night of the occurrence heard a voice which he identified as that of appellant • yelling and making a loud noise, and he went to where appellant was and made some remark about the disturbance, and appellant with an oath denied having made it.

The first bill of exceptions complains of the refusal of a continuance. No subpoena is attached to the application. The application recites that the subpoena was for one witness in Scurry county and two in Eisher county. The recital in the application of the fact that the subpoena was delivered to the sheriff of Scurry county could certainly show ¿o dili- gence in an effort to obtain witnesses who lived in Pisher county.

Bill of exceptions No. 2 wholly fails to sufficiently set out that the jurors, whose absence'was made the ground of the motion to require the sheriff to summon them, had been drawn for the particular week on which this case was set. In addition to that, the bill of exceptions wholly fails to show that any objectionable juror served upon this trial.

The third hill of exceptions was to the refusal of the motion to quash, based on the proposition that the complaint charged an assault upon a deputy marshal of the city of Snyder; it being asserted that there is no such office known to the law. The injured party testified that he was deputy city marshal of Snyder at the time. We find nothing in the record controverting such fact. Jt was held in Hardin v. State, 40 Tex. Cr. R. 217, 49 S. W. 607, that proof of the official character of the injured officer may be made by oral testimony. It has been the law of this state since 1875 that in cities and towns incorporated under the general laws the marshal of such city or town should be ex officio chief of police and might appoint one or more, deputies. It is also provided by statute that either in person or by deputy he should perform the various duties enjoined in article 809, Vernon’s Sayles’ Ann. Civ. St. 1914, or Vernon’s Complete Texas Statutes 1920, which duties include the arrest without warrant of all violators of the public peace or persons guilty of disorderly conduct or disturbance. The case of Alford v. State, 8 Tex. App. 545, was evidently decided under a mistake of law, and is of no controlling force now. The motion was properly overruled.

Bills of exception Nos. 4, 5, and 6 are in question and_ answer form and for, that reason cannot he considered by ns. Bill of exceptions No. 7 presents appellant’s objection to a question asked as to what appellant was saying. The bill does not set out what would have been the answer of the witness and in said condition presents no error.

A hill of exceptions complains that the charge of the court assumed as a fact that the injured party was an officer. This was held by us in Brown v. State, 42 Tex. Cr. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806, to be the correct procedure where that fact was not controverted.

There was an exception to the court’s charge which defines the expression “in his presence or within his view” as contained in article 259, Vernon’s Ann. Code Cr. Proc. 1916, authorizing an arrest without warrant in certain cases. In substance the court defines same as meaning that the officer could arrest without warrant when he could detect the offender by sight or hearing by reason of ■what he did or said. This seems in accord with common sense and with the decisions of other jurisdictions. People v. Bartz, 53 Mich. 493, 19 N. W. 161; Hughes v. Commonwealth (Ky.) 41 S. W. 294; Brady v. State, 48 Ga. 311; Henderson v. State, 63 Ala. 193; Laney v. State, 105 Ala. 105, 17 South. 107. There seems no real difference between the definition as given and the one embraced in the special charge which was refused.

Bills of exception Nos. 10, 11, and 12 complain of certain parts of the court’s charge as given, and of the rejection of special charges offered ostensibly to correct such supposed errors. There appears no statement or notation upon the exceptions reserved to the court’s "charge, and likewise no statement upon any special charge refused showing that same was presented to the court after the introduction of the testimony and before the argument began. In fact, there is nothing upon either the exceptions taken or the special charges asked showing when same were presented to the court. Nothing appears in any of the bills of exception which supply such defects or by which we may know whether the exceptions to the charge were taken or the special charges asked, at the time required by statute. In such condition of the record we cannot consider any of the bills of exception thus complaining of the refusal of the special charges or the exceptions to the main charge.

The testimony was in conflict as to who began the difficulty, but this presents a question of fact which the jury has settled adversely to appellant.

Finding no error in the record, the judgment will be affirmed. 
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      igssi'or other cases see same topic and KEY-NUMBJSH. in all Key-Numbered Digests and Indexes
     