
    MAYES v. STATE.
    (No. 5794.)
    (Court of Criminal Appeals of Texas.
    April 21, 1920.
    On Motion for Rehearing, June 23, 1920.)
    1. Criminal taw &wkey;>265— Defendant, under bond at return of indictment, not entitled to two days’ delay to plead, after demanding copy of indictment.
    Under the statute, where defendant was at large under bond when indictment was returned, and had not been in jail since executing his first bond, and so was entitled to demand a copy of the indictment at any time, he could not delay demanding it till case was called, and then have two days to plead to it.
    2. Criminal law <&wkey;455 — Nonexpert can testify to wounds.
    Any one who had seen the wounds could testify to their being wounds, and could describe them, without the testimony being subject to the objection of being conclusions and o-pinions of the witness; it not taking an expert to describe a wound.
    3. Assault and battery &wkey;>84, 87 — Evidence of trouble the day before assault admissible on malice and motive.
    Evidence of trouble the day before, between the party assaulted and defendant, claimed to have committed the assault, is admissible to show malice and motive.
    4. Witnesses <&wkey;48(l) — Relative to competency, term of service in penitentiary not time between conviction and time of testifying.
    Relative to competency of witness convicted of felony, his term of service in penitentiary is not to be considered time occurring between the conviction and the time of his testifying.
    5. Criminal law <&wkey;l 168(3) — Defendant’s witness being allowed to testify, rulings on questions as to competency unavailing.
    Rulings on questions relative to competency of defendant’s witness because of conviction o-f felony are unavailing, in view of his having been allowed to testify.
    6. Assault and battery &wkey;>84 — Defendant’s discharge from employment, because of prior trouble with assaulted person, admissible on malice.
    As bearing on malice, it may be shown that as a result of the trouble, the day before the assault, between the person assaulted and defendant, charged with the assault, defendant had been discharged from his employment.
    7. Criminal law <&wkey;l09l(IO) — Bill of exceptions unavailing, where it cannot be understood to which part of recited evidence objection is made.
    A bill of exceptions, so indefinite that it cannot be fully understood what was its purpose and to which part of the testimony set out, part of which, at least, was admissible, objection was urged, will not avail.
    On Motion for Rehearing.
    8. Criminal law &wkey;>1159(5) — Conviction not to be disturbed because of conflicting evidence between identity and alibi.
    Where there is sufficient evidence to identify defendant as the party committing the assault, conviction cannot be disturbed because of conflicting testimony tending to show he was at another place at the time.
    9. Assault and battery <&wkey;92— Evidence of identity of assailant held sufficient. .
    Evidence held sufficient to identify defendant as' the person committing an aggravated assault.
    Appeal from District Court, Grayson County; E. E. Wilcox, Judge.
    Otis Mayes was convicted of aggravated assault, and appeals. Affirmed.
    Jas. D. Buster and C. T. Freeman, both of Sherman, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J..

This conviction was for aggravated assault.

When the case was called for trial, before announcing ready, defendant filed a motion stating that he had not been served with a copy of the indictment, and asked that he be so served, and requested that he be granted two days after such service before being required to plead to the indictment. The indictment charged him with assault to murder. The bill further recites that the motion was presented to the court on the 9th of December, 1919, and that he was served with a copy of said indictment at five minutes after 11 o’clock the same morning. Appellant was arrested under warrant issued from the justice court on the 16th day of July, 1919, and was confined in jail until the 11th of August, 1919, at which date he was released upon bond. The indictment was filed on the 12th day of September, 1919. Upon being notified of that fact, he made his appearance bond shortly afterward, without further being actually imprisoned. Since making these bonds he has been at liberty, and was at the time that he presented his motion.

Appellant contends • that he was entitled under this statement to have copy of the indictment served upon him and two days thereafter in which to prepare for his defense. In support of this he cites us to Martin v. State, 80 Tex. Cr. R. 108, 188 S. W. 1000. We are of opinion that this case does not 'support his contention. Martin was indicted on the 23d of May, 1916, was arrested the same day, and gave bond. A copy of the indictment was not served upon him. When the case was called for trial six days later, appellant filed a motion stating that he had not been served with a copy of the indictment, and requested that the officers be required to deliver him a certified copy, and that he then be granted two days in which to plead to the indictment. Had appellant been in jail at the time of the return of the indictment, his motion would have been well taken, or had he been at large, and not under bond, at the time of the return of the Indictment, his motion would have been well taken; but in this case appellant was under bond at the time of the return of the indictment, and had been under bond for about a month. It seems from the bill of exceptions he voluntarily entered into bond, without being actually in custody under the indictment.

Under the statute there are two phases of this question of service of the indictment. One is where it was requisite when insisted upon by the accused before he can be placed upon trial, but in such instance he must either be in custody at the time of the return of the indictment, or if at large at the time of the return of the indictment and not under bond, then thfe service is required by the statute to be served upon him, and upon this he can insist unless he in some manner waives such service. Venn v. State, 218 S. W. 1060, recently decided. The other phase to the statute is that, where the party is under bond at the time of the return of the indictment, he may demand a copy, and it would be error to refuse it; but in such case it is not obligatory upon the clerk to issue or the sheriff to serve such copy, unless a request has been made for such copy. The statute seems to draw a distinction between where the party is under bond at the time of the return of the indictment and where such is not the case. This statute is in harmony with the Bill of Rights, which provides that the accused is entitled to have a copy of the pleadings bringing an accusation against him. In this particular case we find no error in the ruling of the court. Appellant was under bond at the time of the return of the indictment, and had not been in jail since executing his first bond. He had a right to demand a copy at any time, and here upon his demand he was at once served with a copy. This was in accordance with the law as we understand it. See Revill v. State, 218 S. W. 1044, decided at the present term of the court.

A bill of exceptions was reserved with reference to some matters brought out from the assaulted party, Stepp, while testifying for the state. This was over the objection of the defendant. The bill of exceptions is quite lengthy, the substance of which is that Stepp was permitted to testify to the wounds inflicted upon his head and the character of the wounds. Two of the wounds, one behind the right ear and one on top of the head, were inflicted, according to Stepp’s testimony, by the defendant with a blunt instrument. The second wound knocked him senseless. He described these wounds, and also that there was a third wound that was inflicted upon him without his knowledge; that is, while he was unconscious. The objection seems to be based upon the general proposition that these were but conclusions and opinions of the witness, and in support of this we are cited to Conde v. State, 33 Tex. Cr. R. 10, 24 S. W. 415. We do not understand that case to be in point or support the proposition. The witness in the Conde Case testified that he saw the body of deceased, and that it was bloody and had a cloth of some character over the face, where the wounds were supposed to have been inflicted. Under those circumstances that witness could not state that the wounds were inflicted by a gunshot. It was but a conclusion, for he did not see the wounds. Had he seen the wounds, the proposition would have been different. It does not take an expert to describe a wound. The testimony elicited, as we understand this bill of exceptions, from Stepp, w.as that he was struck these blows, and they inflicted wounds upon his head. Any witness could have testified, who had seen the wounds, to the fact that they were wounds, and could have described them. There are other cases cited, besides the Conde Case, but they are to the same effect.

Another bill of exceptions was reserved to- testimony in regard to a previous trouble between the assaulted party, Stepp, and defendant, occurring something like 24 or more hours before this difficulty. This occurred, at a station called Gunter. The occurrence and some of the details of what occurred between defendant and Stepp were given. . This is not an extraneous matter, or an extraneous offense, as here applicable. This testimony was introduced to show the relation between the parties and the feeling of appellant toward Stepp. Evidence that shows motive or malice may not be regarded as extraneous in cases of this sort. This was the inducing cause, urged why appellant made the assault the following night upon Stepp. We are of opinion this testimony was admissible to'show malice and motive.

Another bill of exceptions recites that, while the witness Barr was on cross-examination by the state, he was permitted to testify that he had been charged with and convicted of a felony in McLennan county, and that that felony was assault with intent to murder. Thereupon defendant took the witness, and upon redirect examination proved by him that this was in the year 1907, and that he was convicted of assault to murder and allotted 10 years in the penitentiary. I-Ie was then asked by defendant if he had been pardoned. Upon the state’s objection, the answer was not permitted; the objection being that, if be bad been pardoned, tbe pardon would be the best evidence. The appellant was then permitted to further ex-amino the witness, and prove by him he did not remember how long he had been out of the penitentiary, but said, “About 4 years.” The witness, however, was permitted to and did testify. Appellant’s contention is that this was too remote; that it had been more than 7 years since witness’ conviction. There is no evidence in regard to his course of conduct after he had been released from the penitentiary, presumably under the pardon. We are of opinion there was no error in the ruling of the court in regard to this matter. His term of service in the penitentiary should not be regarded in the time occurring between the conviction and the time of his testifying. It may be presumed that the state. began this cross-examination of the witness to ascertain whether or not he had been pardoned, with a view of disqualifying him as a witness, had he been in the penitentiary. The court decided this matter against the state, and the witness testified. In order to disqualify or render incompetent the witness, it was necessary to produce the pardon. This not being done, he was permitted to testify, and here the matter ended.

Another bill of exceptions recites that the state was permitted to prove by appellant that on account of the difficulty at Gunter with Stepp he was discharged from the railway service, and that this discharge occurred in connection with that trouble. While the act of the discharge by the railroad would not be, perhaps, admissible as acts of a third party, it was introducible in this case to show that on account of this discharge appellant had conceived malice towards Stepp, and that the difficulty with him was the occasion of such discharge. Whether it was the act of the railroad or not, defendant and Stepp were so mingled up with it, and the discharge so connected with the difficulty, that if appellant conceived malice towards Stepp it may have been a cause for his attack upon him. The jury could so regard it. This matter was so connected with it that it was admissible, not as an act of the railroad people, but as a basis why he felt ill will toward Stepp as being the cause of the discharge.

There is another bill of exceptions, but .it is so long and complicated that we are unable to understand exactly what part of the testimony set out in it was objected to and what was not. Much of the testimony was admissible, if not all of it. This court would not be called upon to take a lengthy bill of exceptions, and cull from it such matters as might not be introducible, when much of the testimony so narrated is admissible. The bill is so indefinite that we are unable to understand fully what was the purpose of the bill and to which part of the testimony objection was really urged; therefore it is not further discussed.

Finding no material error in the record, if error at all, we are of opinion the judgment should be affirmed; and it is accordingly so ordered.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. The motion for rehearing brings in review only the sufficiency of'the evidence to support the conviction. The punishment was $500 and 120 days in jail. On account of the punishment, and the insistence of appellant that the evidence is not sufficient, we have given this case a careful revision from the viewpoint now presented by appellant.

The question presented with reference to want of sufficient evidence is the identity of the attacking party. The assault occurred at night, somewhere between 12:15 and 12:45. Appellant introduced evidence of an alibi. This was sufficient, had the jury believed it, to have authorized an acquittal. It is not the purpose of this opinion to review the testimony bearing upon alibi. The conviction depends upon the sufficiency of the testimony to identify appellant as the attacking party. If this is sufficient, this court would not feel justified in reversing. Where there are two fact theories, one which justified the verdict, and the other upon which the jury could have acquitted, it is the exclusive duty of the jury to decide. In view of that rule, and under the contention of appellant, some of the pertinent testimony will be collated.

There had been trouble between appellant and the assaulted party at a little station called Gunter on the train en route from Ft. Worth to Sherman. Both men were railroad employes. Appellant was not an employs on that particular train, but the assaulted party, Stepp, was. Quoting from Stepp’s testimony, after narrating the trouble, he says:

“We.came on to Sherman, and I do not know whether the defendant came on that train. I did not see him any more. We got to Sherman about 7:30 a. m. on the morning of the 10th of July, and I did not see the defendant during that day. It was along about 12:30 on the morning of the 17th when I next saw him, as near as I remember, and that was just before he struck me in the back of the head. That was at the roundhouse in Sherman, Grayson county, Tex. I was oiling the engine around, preparing the engine for the trip. I had oiled the right side, and came around on the left side of the engine — that is, the fireman side of the engine — to oil that side, and I was oiling the eccentric there, and I heard some little noise behind me. I didn’t know what it was, but, anyway I looked back over my shoulder like, and kind of turned my shoulder a little bit, and he struck me over the right ear. He didn’t get a very good lick from that, but enough to kind of stun me, to knock me out of balance. And the next lick I got was on top of the head with some kind of blunt instrument. I couldn’t see what it was exactly; looked more like a brake club or coupling pin. That is the last thing X remember of that night. In oiling the engine, we have an oil can in the right hand, if the, man is right-handed, and a big torch in the left hand for light. I am right-handed, and at that time I had the oil can in my right hand and the torch in my left hand. 'The torch is made of tin, • and so big around at the bottom, and kind of funnel-shaped. It is about 12 inches around at the bottom, and about 4 inches at the top, with a spout for a wick that contains oil — coal oil — to make a light. The torch has a handle to hold to-, and makes a light about the size of a man’s head; makes a very good light, if you have got oil in it. I had a good light, a very good torch, at that time; a man could see how to read orders by that torch any time at night. At the time I turned around and saw the defendant on my left, I had the torch, and it gave me light enough to see the defendant, and there was also an arc light there, too, that also gives light. The defendant was dressed — the best I remember, he had on a black hat, and had on a kind of blue overalls, it looked like, if I am not mistaken, his working clothes. The first lick that he struck me was over the right ear; there is a scar there, and there is one on top of my head, too; you.can feel it, besides that one in my forehead. The first blow back of my head was more of a glancing lick than a direct blow. I kind óf ducked my head. The first blow knocked me down partly, and staggered me. It was a very little while after that first blow until I was staggering that I was struck another blow on top of the head, and there is a very long scar up there, about six inches. * * * I couldn’t say that I was angry with the man after the trouble was over at Gunter, but I did not see the man any more until the morning of the 17th, about 12:30 o’clock, as near as I remember. I have no means at all of guessing the time of day as 12 o’clock; only we are called for 12:45, and 118 is due here at 12:15, and I was just talking to the engineer as he came in on the 118. I could not say whether 118 came in on time that night, or whether it was 5 or 10 minutes late. * * * I know that this is the man who struck me. I could not be mistaken about it.”

This witness stated he had not told anybody until the day before he was testifying as to who it was that struck, him. Up to that time he denied knowing who it was; that he first told Mr. Gafford that he knew appellant was the man who struck him. Further testifying he'states:

“At the time I heard the noise and looked around, the best I remember the party was about three feet from me — three or four feet, I couldn’t say the exact distance. I was facing north, and-he was south of me; as nearly due south as I could state. I. was oiling the engine, and was standing, you might say, erect. I was oiling the eccentric. I was not oiling any one thing when I heard this noise, but I was generally oiling the engine. I was actually emptying oil from my oil can on some part of the engine when I heard the noise. My lamp was in my left hand. I could not say how far the lamp was from the point of the engine that I was oiling; it was over two feet; it might have been closer; that is very hard to say, exactly the distance a hand would hold a lamp from the engine. As to how long it was after I glanced backward before the blow was struck, I will say that it was just immediately, I looked around, and the blow was struck. In other words, the act of glancing backward and the receipt of the blow on the right side of my head was about at the same instant, and as I saw the blow coming I ducked my head like that, and caught the blow right over the right arm. I seen him as I looked over my shoulder, and I ducked my head just about the same time, or just immediately afterwards. In other words, at the time I heard the disturbance, the blow was in motion, and was in the act of falling upon my head, but had not quite reached my head at that time, as I saw him. * * * At the time I saw the man who was making this blow, he had already begun the stroke, and I saw him just a moment before it hit. I saw the man who hit me, and the blow was in motion. That is the answer I gave you a while ago. I am not a bit in the world mistaken about that. The best I remember the man had on a black hat. He had on a black hat, a medium size hat; as to whether it was a derby, a stiff hat, or soft hat, I did not examine it, and I could not say whether it was stiff, soft, or what it was. It was not a straw hat.”

On the identification of the defendant this is, in the main, the evidence. There was no question of the fact that Stepp was assaulted by some one, and that his skull was fractured, and he was rendered unconscious until perhaps in October- — at least a considerable length of time. If this evidence is sufficient to identify appellant as the assaulting party, the judgment should be affirmed, so far as that question is concerned. The witness is positive as to the identity of the defendant. The jury believed Stepp’s testimony as to the identity of the appellant as the assaulting party. With this evidence in the record, we would not feel justified in saying the jury was not authorized to disbelieve appellant’s alibi. Appellant introduced evidence which, if believed by the jury, would have tended to show that he was at a different place. He claimed he was at the depot, something like three-quarters of a mile from the place of assault, at such time as he could not have been at the roundhouse and committed the assault. The time fixed is largely a matter of deduction, drawn from circumstances and incidents upon which the witnesses base their conclusion. This was all before the jury. We are of opinion that, as this ease is presented, we would not be justified in reversing on the question submitted and discussed.

The motion for rehearing will therefore be overruled. 
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