
    (85 Tex. Cr. R. 529)
    ELLIS v. STATE.
    (No. 5169.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On the Merits, April 2, 1919.
    On Motion for Rehearing, May 28, 1919.
    On Further Motion for Rehearing, June 25, 1919.)
    1. Criminal Law <&wkey;1077 — Appeal—Record —Mandamus to Compel Reporter to Furnish Report oe Testimony.
    Where a petition for mandamus shows that appellant in a murder prosecution at the proper time and in the proper way moved to have the judge of the trial 'court command the reporter to make out a proper report of the testimony, which the court refused, and to which defendant excepted, the petition will be granted.
    On the 'Merits.
    2. Criminal Law <&wkey;1099(ll) — Appeal — ■ Statement oe Facts — Authentication.
    In a murder case, a statement of facts on appeal, signed by counsel and district attorney and certified by a judge other than the trial judge, will not be considered; it being necessary that the statement of facts be approved by the judge before whom the case was tried.
    3. Indictment and Ineormation &wkey;>100— Abandonment oe Counts — Formal Portions oe Indictment.
    When an indictment in a murder ease contains more than one count, and the first count is abandoned, the formal parts thereof will be applied to the second count as against the objection that such count is defective, in lacking the formal headings and the other necessary matter to make it legal.
    On Motion for Rehearing.
    4. Criminal Law <&wkey;814(17) — Abstract Instructions — Circumstantial Evidence.
    In a murder case, a charge which is merely an abstract statement of the law of circumstantial evidence, without any application or attempted application to the facts, is properly refused.
    5. Criminal Law <&wkey;784(l) — Instruction-Circumstantial Evidence.
    In a prosecution for murder, facts held not to require submission of instruction on circumstantial evidence.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Ike Ellis was convicted of murder, and appeals.
    Affirmed.
    M. Cammack, of Amarillo, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   ■ -PRENDERGAST, J.

This appeal is from a,conviction for the offense of murder, with 15 years in the penitentiary assessed as a punishment.

There is no statement of facts. with the record. However, there is with the papers an application for a mandamus, timely filed, asking this court to compel the official court reporter, J. E. McGinnis, who was the stenographic reporter and as such took down the testimony upon the trial, to make out a statement of all evidence introduced as required by the statute. In addition to the petition for the mandamus itself, the record clearly shows that appellant in the pi-oper time and in the proper way made his motion before the district court, seeking to have the judge to command- the reporter to make out the proper report of the testimony of the case, which the court refused, and to which he excepted at the time.

The petition before the district judge, as well as the petition for mandamus to this court and the proof, is strictly and completely in accordance with the statute, and with the opinion of "this court in Ex parte Fread, 204 S. W. 113. In. accordance with the opinion of this court in that case, the clerk of this court will enter an order directing and requiring that said Mr. McGinnis prepare a transcript of his notes of 'all the testimony introduced on the trial, and to file the samo with the clerk of the district court where the case was tried within 15 days from the date of the service of this order upon him.

Further consideration of the case on its merits will be postponed for a reasonable length of time, to await the filing in the court below of a statement of facts.

Mandamus granted, requiring the stenographer to prepare and file a transcript of all testimony heard on the trial of this cause.

On the Merits.

LATTIMORE, J.

In this case appellant was convicted of murder in the district court of Potter county, and his punishment fixed at 15 years in the penitentiary.

An inspection of this record shows that this cause was tried in _ court below before Hon. Hugh L. Umphres,' judge, and all the orders on motions, bills of exceptions, etc., are signed by him, as well as the charge. We -find in the record what purports to be a statement of facts, signed by counsel for appellant and apparently by the district attorney and certified as correct by Henry S. Bishop, judge of the district court of Potter county, Tex. Under what appears to be an unbroken line of decisions of this court, we are not at liberty to consider a statement of facts so authenticated. It is uniformly held that a statement of facts must be approved by the Judge before whom the case was tried. Graham v. State, 10 Tex. App. 684; Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194.

Appellant reserved four bills of exceptions, none of which present error which we can consider in the present condition of the record. Three of the bills of exceptions are to matters left out of the court’s, charge, or the refusal of the court to give a special charge instructing the jury to return a verdict of not -guilty. These matters we cannot decide, in the absence of a statement of facts.

We have examined the appellant’s motion for new trial, and find that his first ground .of complaint is that the second count in the indictment, upon which the state elected to prosecute, is defective, in that it lacks the formal heading and matters necessary to make the same legal.' This question is well settled against appellant’s contention, as the formal parts pertaining to the first count, when such count is abandoned, will apply to the second count.

The claim of newly discovered evidence, set up in the motion, is not properly sustained by affidavits or evidence before the trial court. The ground that the trial court erred in refusing special charges raises matters which cannot be reviewed in the absence of a statement of facts. Nor can the objection that the judgment is contrary to the evidence be reviewed for the same reason.

Finding no error in the record, the judgment of the lower court is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term; the statement' of facts not being considered, because same had not been approved by the judge before whom the ease was tried. This defect having now been remedied, the case is again before us, and considered in the light of all the facts as shown by said statement.

There were no exceptions taken to the court’s charge on .the trial, and but four bills of exceptions appear in the record, the first of which refers wholly to a question pertaining to the statement of facts, which has no bearing upon the merits of the ease. The second and third bills of exceptions relate to the matter of the court’s refusal to peremptorily instruct the jury to return a verdict of acquittal. There was no error in refusing to so charge. The fourth bill of exceptions complains that the court refused to give a special charge requested by counsel for the appellant, on circumstantial evidence. We observe that said charge is merely an abstract statement of the law of circumstantial evidence, without any application or attempted application of the same to the facts in this case. For this reason it might have been refused. However, we shall further observe that under the facts stated in the record, the gist of which appears in the opinion, there was no reason for a charge on circumstantial evidence.

Fred Parker, a negro nicknamed “Slim,” the husband of Fay Parker and the son-in-law of Ruth ERiott, was killed, on the night of April 7, 1918, in Amarillo, Tex, Ruth •Elliott, the mother-in-law of the deceased, occupied some rooms opening out on an alley down which there was a path to a nearby colored restaurant kept by one Moore. On the night of the alleged homicide the wife of deceased, Fay Parker, Ruth Elliott, Rena Wheeler, and appellant were together in a room of Ruth Elliott, between 9:30 and 10 o’clock. The deceased came to the door, and called his wife out, and walked a little way with her, and after the conversation she went on, and he returned to the room, and knocked on-the door, and was admitted by Ruth Elliott. At once after the door was opened, deceased asked appellant what he was doing, hanging around his wife, and appellant replied that he was not hanging around deceased’s wife, and thereupon deceased called him a damn liar, and appellant shot. There were three eyewitnesses in the room at the time.

Ruth Elliott, the mother-in-law of deceased, says she does not know how many shots were fired, - but she only heard one; that she was very badly scared, that same was fired immediately after deceased called appellant a damn liar, and that deceased had his hand back under his coat at. the time it was fired. She further states that appellant just raised up from the trunk, where he was sitting by the witness Rena Wheeler, and shot. The trunk was across the room from the door. The witness Rena Wheeler testified that, as soon as deceased asked appellant what he was hanging around his wife for, appellant shot, and- that, when he shot, deceased turned and walked out of the dóor, and appellant walked to the door and shot again. She also stated that appellant was across the room from the door when he shot. She testified to no hostile demonstration of any character on the part of deceased, and states that he did not run at appellant, but just walked in. .

Sam Smith, the remaining eyewitness, stated that deceased never did come inside the door, but that he was standing in the door when he addressed the remark-to appellant, and when appellant shot, and that there were several shots — he did not remember how many. He said that deceased disappeared from the door. No one saw. deceased any more that night, but the next morning his body was found about 230 or 240 feet' from the back door of Ruth Elliott’s house, and not far from the path leading to Moore’s restaurant. Blood was discovered on the ground between Ruth Elliott’s house and the body. When found, the body had been dead for a number of hours; one witness stated eight or ten hours. There were two bullet holes On the body; one through the hand and one entering the shoulder and going practically through. A , small pocketknife, closed, was found in' the pocket of the deceased, Witness Rena Wheeler also testified that, after appellant fired, he remarked, “That’s the first skinner I ever missed,” and that Sam Smith said that he believed that he had hit him. These witnesses, in detailing the transaction, spoke of “when Ike shot Slim,” etc.

There is no suggestion in the record of the fact that deceased came to his death from any other cause than by the pistol shots fired by appellant.

There being no complaint of the court’s charge, and the facts being substantially as detailed, we think there is no reversible error in the record, and the judgment of the trial court will be affirmed.

On Further Motion for Rehearing.

This appellant has filed a motion for rehearing, which this court has carefully considered. Appellant again insists that this is a case of circumstantial evidence, but this court confesses its inability to comprehend the basis for such contention. Three witnesses were present at the time appellant shot at deceased, and a number of witnesses testified that shortly thereafter the body of deceased was found dead a short distance away as a result of a pistol shot. It is true that no one of said witnesses testified that they saw the bullet strike the deceased, and only one of them testified that he thought deceased was struck. Some of the others said they did not think he was. It was in the nighttime, deceased was at the door, and appellant fired at him with his pistol pointblank, and then, according to one of the witnesses. walked to the door, and, as deceased moved away, shot at him again, and the body of deceased was found a little while thereafter, a short distance away from the scene of the shooting. We are wholly unable to comprehend how any element of circumstantial- evidence enters into the case. Appellant reviews the testimony of the witnesses with a view of convincing this court of the error of its former holding, but, as stated, we are unable to agree with the contention.

The other errors mentioned in the motion for rehearing have been carefully considered, and we think the court correctly decided the case in the original opinion, and the motion will be overruled. . 
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