
    CAPLES v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1. Criminal Law (§ 596) — Continuance-Absent Witnesses.
    A eontinuanee will not be granted for absence of a witness whose testimony will only impeach the prosecuting witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1328 — 1330; D'ee. Dig. § 596.]
    2. Witnesses (§ 331%) — Impeachment — Drunkenness.
    In a prosecution for aggravated assault, where there was no evidence that the prosecuting witness was drunk at the time of the assault, evidence that, when he was drunk, he knew nothing until he became sober, was properly excluded.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 331%.]
    3. Assault and Battery (§ 90*) — Evidence.
    In a prosecution for aggravated assault, evidence that two or three days after it the prosecuting witness bore marks of the whipping ho had received was not too remote.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 135; Dec. Dig. § 90.]
    4. Assault and Battery (§ 83) — Evidence.
    . In a prosecution for an aggravated assault, consisting in the whipping of the prosecuting witness, testimony for the defense that a few months before other persons were heard to threaten to whip the prosecuting witness because he did not support his family is inadmissible, where they were not identified and shown to have been in a position where they could have committed the assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 128-134; Dec. Dig. § S3.]
    5. Assault and Battery (§ 83) — Evidence.
    In a prosecution for an aggravated assault, consisting in whipping the prosecuting witness, the exclusion of an almanac showing there was no moon on that night was proper, where he testified that he recognized the parties by the light of a match struck by one of them.
    [Ed. Note. — For other cases, see Assault and Battery, Cent Dig. §§ 128-134; Dee. Dig. § 83.]
    6. Criminal Law (§ 1168) — Appeal—Harmless Error.
    In a prosecution for aggravated assault, the admission of testimony that the prosecuting witness said in the absence of accused that he was sure of the parties, given after a predicate had been la'id for the impeachment of the prosecuting witness, but before the impeaching testimony, was merely premature, and was rendered proper by the subsequent introduction of the impeaching evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]
    7. Criminal Law (§ 814) — Trial—Instructions.
    Where accused admitted that he was in a position where he could have assaulted the prosecuting witness, a charge on alibi is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,-1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-19S5, 1987; Dec. Dig. § 814.]
    8. Assault and Battery (§ 96*) — Aggravated Assault — Evidence.
    In a prosecution for aggravated assault, evidence held not to raise the issue of simple assault, so that the court properly refused to submit that grade of offense.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    9. Assault and Battery (§ 54) — Aggravated Assault — What Constitutes.
    Under the statute declaring an assault becomes aggravated where the instrument inflicts disgrace, as an assault with a cowhide or whip, an assault with switches or sticks is aggravated; the statute including all assaults where whipping is administered.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54.]
    Appeal from Sabine County Court; T. R. Smith, Judge.
    Charlie Capíes was convicted of aggravated assault, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For ottier oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is a companion case to that of Curtis Craig (147 S. W. 251) and others now pending before tbis court (see Thornton v. State, 155 S. W. 270; Russell v. State, 155 S. W. 270; Click v. State, 155 S. W. 270), in which they are all charged with' making an aggravated assault on Joe Horton.

Horton testified: “I lived on July 30, 1911, on the Thornhill place, three or four miles southeast from the home of John McGown, at that time. John McGown, who was a very old man, is my brother-in-law. He married my sister. I went to John McGown’s house about dark on the 30th of July, 1911, to carry some buttermilk for him to drink. 1-Ie was sick at that time, and had been for two or three weeks, and I had been sitting up with him about every other night. When >1 reached the house that night, John Travis and Jim Bailey were sitting on the gallery. .Dr. Mann McGown, a son of John McGown, was in the house. Bud Smith came in a little later, and stayed a while and left. Tom Jack was also there for a while. Henderson McGown was also there that night. There were two or three women also there. I sat down by the 'bed, and was fanning old man McGown just after dark, when Joe Click, John Russell, Charlie Capíes, Hardy Thornton, and Curtis Craig came. Bud Smith came in and asked how Mr. McGown was, and said he would go home. He left, and I heard him singing on his way home. About 8:30 Hardy Thornton came to the door, and invited me out, and I went out with him into the yard. He got over the yard fence (there was no gate), and I followed him over the fence. Just as I got over the fence, Charlie Capíes and John Russell and Joe Click jumped up from behind the fence and grabbed me. Some one asked me if I had any money. Capíes and Thornton held me by the arms, and Click held me by the neck and choked me. They carried me about 200 yards down the road and searched me. The only thing I had was a pocketknife, and they took that. They then took a drink, and Click asked me if I wanted a drink, and I told him, ‘No,’ and Click said to me, ‘You God damned son of a bitch we’ve got something else besides whisky for you.’ They threatened to hang me, and said they would shoot me if I even grunted. They then took me immediately about a guar ter of a mile, and took me up to a tree near the road, and held my arms around the tree while they beat me with switches. Click was the first one to strike me. They all took turns at whipping me, and kept it up until I promised not to tell about it. They must have whipped me an hour and a half or two hours. They took my pants down, and raised my shirt, and whipped me on my naked skin. Curtis Craig was the one that took my pants down. Russell and Capíes were the ones that held me up to the tree. There were five of them. Curtis Craig, Hardy Thornton, John Russell, Joe Click, and Charlie Capíes. They talked abont - killing me. Capíes said, ‘Let’s kill him. Dead cocks don’t crow.’ While they were whipping me, John 'Russell struck a match, and looked at his watch, and said it was 11 o’clock. I think myself it was about that time. They kept me for about a half or three-quarters of an hour longer, and turned me loose. I went in direction of my home. I was pretty badly beaten up in the small of my back and on my thighs. I was laid up the next day. They used a beech limb and ironwood switches. The last lick I received was by Curtis Craig, who struck me with a dogwood limb or pole about 3% inches in diameter. It was a dead pole, and broke when he struck me with it. The place where I was whipped was about one-fourth of a mile from John McGown’s house. They whipped me in the woods near the road. The timber was not so very thick. It was about the same distance to the next nearest house. I did not see or hear any one on my way home. I went back to the place of the whipping on Tuesday morning after the whipping on Sunday night, and found some switches there. [Identifies switches.] I carried them to John McGown’s, and showed them to Jeff McGown and George McGown, and I then' brought them to Hemphill, and showed them to Deputy Sheriff R. H. Minton and the Justice Mr. Barker. I brought them here on Wednesday after I was whipped. I was whipped in Sabine county, Tex.”

Appellant testified that he and others went to Mr. McGown’s to wait on the sick, and that Joe Click carried a bottle of whisky along to give to the sick, but was informed that McGown did not need it, and then testified: “Joe Click then said well we might as well drink it up. We walked out in the yard, crossed the fence in front of the house, and walked down the road some 30 or 40 yards and sat down. Joe Horton, John Russell, Hardy Thornton, and Curtis Craig were along. When we sat down, Joe Click passed the bottle around, and we all took a drink. We sat there and talked a little bit, and all took another drink. When the whisky, about a half a quart of it, was gone, Joe Horton remarked that he had been sitting up and was about played out, and believed he would turn in. He started off towards home in the direction of Alex Dickersons. This was the same road taken by Bud Smith when he started home. I have been living at Bronson for about 10 years, and have known Joe Horton for about that length of time. I have never had any trouble with or hard feelings toward Joe Horton. Never had anything against him. I did not assault nor assist in doing so. None of the other defendants molested him in any way there that night. When he left us sitting by the roadside that night about 40 yards from Mc-Gown’s house, we sat there for a while and talked, then went to the house. Some of the boys went home shortly afterward, but Click and I stayed until about 11 or 12 o’clock waiting on McGown. When we left, we went straight home to Bronson and went to bed. I have no idea who it was that whipped Joe Horton that night, if he was whipped. He was not whipped by any of the people at MeGown’s so far as I know. I am sure he was not while I was there. The last I saw of him was when he started towards home about 40 yards from the house. He said he was going home.”

The first bill of exceptions complains that the court erred in overruling his application for a continuance on account of the absence of Steve Connor, whom he desired as a witness. In the first place we do not think the application shows proper diligence, and in the second place the testimony of the witness would only have a tendency to impeach the state’s witness Joe Horton, and it is the rule that a continuance will not be granted to secure impeaching testimony. Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866.

The appellant offered to prove .¡by Prank Ellison that when the prosecuting witness was drunk he became crazy, and did not know anything until he became sober. There is no testimony that the witness Horton was drunk on the night he received the whipping; consequently the court did not err in excluding the testimony.

The state proved by the witness Jeff McGown: “I examined the body of Joe Horton on Tuesday, August 1, 1911. There were some bruises on his back and hips. The skin was broken on his left hip and thigh and back. There were some blue marks on him, too. I went with Joe Horton down back of the field near an old road, and examined the place where Joe Horton said he was whipped. I saw tracks and some switches there. Witness identifies switches in court as the same he saw on the ground where Horton was alleged to have been whipped, and where he saw the tree and tracks Joe took the switches away with him. I saw where a bunch limb had been cut from a tree Joe Horton told me that the defendants had whipped him. He said that all five of them, including this defendant, had whipped him at the place where he showed me the switches, and said the switches he showed me were the ones they used to whip him.”

It was also proved by Mr. Barker: “I am justice of the peace of precinct No. 1, Sabine county, Tex. I saw Joe Horton, and examined him about the 2d of August, 1911. I found his hips and thighs badly bruised and the skin was broken. There were considerable welts on his body. The bruises were blue and puffed up.”

After this testimony had been admitted, the defendant moved to exclude it on the ground “that defendant was not present at the time of the examination, and it was made at a time too remote from the alleged assault.” The record shows that the prosecuting witness was whipped on the night of the, 30th of July, and these examinations took place in two and three days thereafter, and the time was not too remote, and the testimony as to the condition of his body was properly admitted in evidence.

The appellant offered to prove “that during the spring or early summer of 1911 he heard some parties at Le Merl talk about whipping Joe Horton because he would not work and support his family,” but the witness would have stated he could not recall who these persons were. The court did not err in excluding the testimony. To have rendered the testimony material and admissible, he must have identified the persons in some way, and placed them in position where they could have made the assault.

There was no error in excluding the almanac, as it would have proven no material fact, and would not have tended to impeach the witness Horton. He had not tes-tilled that the moon was shining at the time he was whipped, but, if he had, the testimony as to the hour he was whipped was not fixed so definitely as the almanac would have shown that the moon was down at this time. Horton testified that a match was struck, and he saw the parties plainly.

The state also proved by Jeff McGown that at the time Horton went with him to the place where he was whipped and showed him the switches, etc., Horton told him who did the whipping, and named appellant as one of the persons. This was objected to on the ground that it was hearsay, that appellant was not present, and appellant bad not sought to impeach Horton. It is true at the time this witness testified appellant had only laid predicates to impeach Horton, and perhaps the testimony was prematurely offered and admitted, but as appellant did, after having laid the predicates, follow this up by introducing the impeaching testimony, the testimony then became admissible, and the fact that it was prematurely offered would present no grounds for reversal.

The court did not err in refusing the charge presenting the issue of alibi. There was no evidence showing that at the time the whipping was alleged to have taken place that appellant was at another and different place. He in his testimony admits that he was with Horton at the place where Horton says they took hold of him and carried him to the place where he was whipped, and Horton positively identifies him as one of the men who did the whipping. Appellant denied, it is true, whipping Horton, but this issue was sufficiently presented in the charge of the court.

By reading the testimony hereinbefore copied, it will be seen the issue of simple assault was not raised by the testimony, and the court did not err in not submitting that grade of the offense to the jury. Appellant complains that the court erred in applying the law as to who are principals in the commission- of an offense, not that there is any error in such charge, but that such charge is not called for by the evidence. The evidence of Joe Horton herein copied shows the court did not err in that respect.

The court instructed the jury that “an assault becomes aggravated when the instrument or means used is such as inflicts disgrace upon the person assaulted as an assault or battery with a whip or cowhide; that it is not necessary that the instrument used should be a whip or cowhide, but any instrument that would inflict disgrace, such as a stick and switches, would be an aggravated assault.” Appellant complains of this paragraph of the charge on the ground “that the statute specifically names the instruments which would inflict disgrace, a whip or cowhide, and does not include a stick and switches.” The statute reads: “When the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a cowhide or whip.” It is thus se’en this clause is broad enough to embrace any instrument with which a whipping may be administered, if done under circumstances which would inflict disgrace.

The judgment is affirmed.  