
    GOMEZ v. STATE.
    (No. 3250.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.
    On Motion for Rehearing, Nov. 11, 1914.)
    1. Criminal Law (§ 101) — Venue—Locality or O SITENSE — CREATION OF NEW COUNTY.
    Where after an indictment was returned a new county was created which included the scene of the crime, the indictment was properly transferred to such new county.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig'. §§ 199-205; Dec. Dig. § 101.]
    2. Ceiminal Law (§ 126) — Venue—Change or Court’s Own Motion.
    Under Code Cr. Proc. 1911, art. 626, providing that whenever in .any case of felony the presiding judge sháll be satisfied that a trial, fair and impartial to accused and the state, ean-not be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own or an adjoining district, where an indictment found before the creation of a new county, including the scene of the crime, was transferred to such new county, the trial judge was authorized, when the district court of such new county convened to change the venue to another county, if in his opinion the facts connected with the offense had gained such wide notoriety that a fair and impartial trial could not be had.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 243; Dee. Dig. § 126.]
    
      3. Crimin-ai. Law (§ 1099) — Appeal— Statement of Pacts — Necessity of Approval by Trial Judge.
    A statement of facts never presented to the trial judge for approval, or at least not approved by him, cannot be considered on appeal in a criminal case.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Criminal Law (§ 363) — Evidence—Res Gestas — Events Preceding Crime.
    On a trial for homicide, a witness was properly permitted to detail the events leading up to the tragedy; this being res geste of the transaction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    5. Homicide (§ 175) — Evidence — Admissibility.
    On a trial for homicide, evidence that deceased was in perfect health, and that she died in 14 hours after being shot in the abdomen by accused, was clearly admissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 375-378; Dec. Dig. § 175.]
    6. Criminal Law (§ 1169) — Appeal—Harmless Error — Admission of Evidence.
    On a trial for homicide, where it was accused’s contention that he was intoxicated and that deceased was shot accidentally, and a witness testified that deceased was in perfect health, and that she died in 14 hours after being shot in the abdomen by accused, her further testimony that deceased’s death was caused by the shot was harmless.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. §, 1169.]
    7. Witnesses (§ 286) — Impeachment—Redirect Examination.
    Where on cross-examination of a witness who had testified to material facts for the state, it was sought to discredit him by showing that he had testified at the examining trial, and that he had been induced by another to testify as he did on the trial, it was not error to permit him to state on redirect examination that his testimony at the trial was the truth; this not “bolstering up” his testimony, as this statement would add no strength to his testimony if discredited by the cross-examination.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 930, 994 — 999; Dec. Dig. § 286.]
    8. Criminal Law (§§ 366, 368) — Evidence-Res Gestae — Declarations Following Homicide.
    Statements made by deceased and by another person a few minutes after the shooting, and evidently amounting to the event speaking, were properly admitted as res geste of the transaction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 812, 814, 815, 819-821; Dec. Dig. §§ 366, 368.]
    9. Jury (§ 50) — Qualifications of Jurors —‘ ‘ Householder. ’ ’
    A single man, living with his parents though paying board or renting a room from the occupant of a house, is not a “householder” so as to be a qualified juror.
    [Ed. Note. — For other eases, See Jury, Cent. Dig. § 256; Dec. Dig. § 50.
    
    For other definitions, see Words'and Phrases, First and Second Series, Householder.]
    10. Criminal Law (§ 1166%) — Appeal — Harmless Error — Challenges to Jurors.
    There .was no error in overruling a challenge to a juror for cause where accused peremptorily challenged the juror and no objectionable juror was forced on him.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    11. Criminal Law (§ 721%) — Argument of Prosecuting Attorney — Reference to Failure to Call Witness.
    Where accused’s wife, who was present at a homicide and in attendance on court at the trial, was not called by accused as a witness, it was permissible for the district attorney in his argument to refer to accused’s failure to call her, as the state could not introduce her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    12. Criminal Law (§ 1144) — Appeal—Presumptions in Support of Judgment.
    Where no exceptions were taken to the charge before it was read to the jury and there is no statement of facts, it must be presumed that the judge fully presented all the issues made by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771,2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    13. Homicide (§ 354) — Punishment—Death Penalty.
    The infliction of the death penalty for homicide is authorized under the existing law.
    [Ed. Note. — For- other cases, see Homicide, Cent. Dig. § 731; Dee. Dig. § 354.]
    On Motion for Rehearing.
    14. Criminal Law (§ 1099) — Appeal — Statement of Facts — Failure to Obtain Approval.
    Where in a case tried in May accused relied on the court stenographer to. present the statement of facts to the district judge for approval, but thz-ough an oversight the statement was filed without being presented for approval, and no effort to cure this defect was made until October when the district judge wrote the Court of Criminal Appeals., stating that he would have approved it, the judgment could not be reversed because accused was deprived of a statement of facts, as it was the duty of his attorney to place the statement of facts in.the hands of the trial judge, with a request that he either approve it or prepare and file a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    15. Homicide (§ 250) — Evidence — Weight and Sufficiency.
    On a trial for homicide, in which accused claimed that he was intoxicated and that deceased was shot accidentally, evidence held sufficient to support a conviction for murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Federico Gomez was convicted of murder, • and he appeals.
    Affirmed.
    John C. North, of Falfurrias, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at death.

March 29, 1913, appellant shot and killed Santos Mora at the Randado ranch in what was then Brooks county. The Legislature subsequently created a new county, Jim Hogg, and the place where the killing took place was included in the territorial limits of that county. When that county was organized the district judge of Brooks county transferred the indictment to Jim Hogg county. Appellant complains of this action of the court, and says he should have been tried in Brooks county. Mr. Bishop says:

“By the common law crimes are local, to he prosecuted in the county of their commission; only in such county can the grand jury inquire into them. Even where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the state; the trial is in the new county.”

This is the correct rule, and one followed by our courts. Hernandez v. State, 19 Tex. App. 408; Weller v. State, 16 Tex. App. 200; Nelson v. State, 1 Tex. App. 45. The offense having been committed March 29th, the indictment returned May 27th, and the law creating Jim Hogg county July 1st, it was not only proper, but incumbent on the court, to transfer the ease to Jim Hogg county, as that county would have jurisdiction of the offense. And when the district court of Jim Hogg county convened, if in the opinion of the trial judge that the facts connected’ with the commission of the offense had gained such wide notoriety that a trial alike fair and impartial to the accused and the state could not be had in that county, he was authorized to change the venue to Webb county. Article 626 of Code of Criminal Procedure.

The death penalty having been assessed in this case, we cannot understand the negligence manifested in the preparation of this record. The statement of facts bears no evidence that it was ever presented to the trial judge for his approval—at least, in the record before us the statement of facts has not been approved by him—and is not verified in a way that would authorize us to consider it. Lawrence v. State, 7 Tex. App. 192; Bennett v. State, 16 Tex. App. 236; Johnson v. State, 29 Tex. 492; and note 1169 White’s Ann. Code of Criminal Procedure, and authorities there cited.

Mrs. Juana Chapa de Mora was permitted to detail the conversation she had and events that led up to the tragedy. This was res gestae of the transaction, and properly admitted in evidence.

Carmen Mora was permitted to testify that prior to the shooting her sister, Santos Mora was in perfect health, and that her sister died in 14 hours after being shot in the abdomen by appellant, and that her death was caused by this shot. The bill shows that all this testimony was objected to. Certainly all of it was admissible, unless it be that portion of it in which she stated her sister’s death was caused by this shot, and in our opinion, under the circumstances of this case, the court did not err in permitting the witness to testify to that fact.

Federico Gonzales had testified to material facts for the state, and the defendant, in cross-examination, had sought to discredit the witness by showing that he had testified at the examining trial, and attempted to show that he had been induced by another to testify as he had on this trial. On redirect examination he was permitted to say that what he had testified to on this trial was the truth. Appellant contends that was “bolstering up” the testimony of the witness. We hardly think the contention sound under the recitals of the bill, for if by the cross-examination of the witness the defendant had cast a cloud on the truth of the testimony of the witness, the witness stating it was the truth would add no strength to it.

The statements made by Santos Mora and Andres Salinas were admissible both as dying declarations and as res geste of the transaction. The statements were made only a few minutes after the shooting, and it is evident it was but the event speaking.

Neither McClelland, Vasquez, nor Spra-gue were qualified jurors, and the court did not err in so holding. They were neither freeholders nor householders within contemplation of the law. A single man who remains with his father and mother, even though he pays them board, does not, because of that fact become a householder. And neither is a single man a householder who merely rents a room from an occupant of the^ house

As to Mr. Eistetter, if the court erred in refusing to sustain appellant’s challenge for cause, he peremptorily challenged the jur- or, and as no objectionable juror was forced on appellant, this bill would present no error.

Appellant’s wife was in attendance on' court. The record shows she was present at the time of the homicide, but she was not called as a witness by appellant. The state could not introduce her, and the bill shows that in his argument the district attorney referred to the fact that she had not been introduced as a witness. This was permissible, and the bill presents no error.

No exceptions were taken to the charge of the court before it was read to the jury, and in the absence of a statement of facts we must presume that it fully presents all the issues made by the evidence had on the trial. The contention that there is now no law authorizing the infliction of the death penalty cannot be sustained.

The judgment is affirmed.

On Motion for Rehearing.

The statement of facts was not presented to the trial judge for his signature, nor signed by him. The attorney of appellant has filed an affidavit stating that he relied on the court stenographer to present' it to the district judge for his approval. The court stenographer has filed an affidavit in which he states he intended to do so, but it was filed by oversight, without being presented to tlie judge for his approval. Judge Mullally writes to the court and says:

“It was never my intention not to approve the statement of facts, and it must have been filed inadvertently without my approval, and without it being presented to me. Had I seen it, I would have approved it, as it was agreed to by Mr. North and the district attorney.”

This case was tried last May, and no effort made to cure this defect in the record until we received the letter of Judge Mullally dated October 30th. We are not authorized to reverse the case because appellant has been deprived of a statement of facts. His attorney must be diligent, and his diligence does not end until the statement of facts is placed in the hands of the trial judge, with request either to approve it, or if he will not do so, to prepare and file a statement of facts. This requisite of the law was not complied with, but appellant’s counsel relied on the promise of the stenographer reporting the ease to do so for him, and through oversight the stenographer failed to keep his promise to appellant’s counsel.

But the death penalty being assessed, although the statement of facts did not bear the approval of the trial judge, we have read it. Appellant married Pilar Mora, they separated, and she returned to her father’s house, who lived on the Randado ranch. Appellant, after his wife’s return to her father’s home, also went to this ranch and stayed around there several days. One morning he went to this house when only the women folks were present, and forced an entrance. After conversing with them awhile, he shot at his wife and her mother. Santos Mora, the deceased, standing near appellant, caught him as he fired these two shots and undertook to shove him out of the house. As she did so he' turned the pistol on her and shot her in the abdomen, inflicting the wound that caused her death. Another girl, Carmen Mora, fled the house, calling for help, and he fired two shot at this fleeing girl. This is the state’s case, and amply supports the verdict rendered by the jury.

Appellant’s contention is: That he went to the Randado ranch about six days before the shooting, and that he was drunk while ther.e. That he got the intoxicants from Juan Mora, the mother. That he sent two children of Damiana Villarreal to the house after the beer and mezcal. Neither one of these children were introduced as witnesses, and neither does the record disclose that any process had ever been issued for them. He says on the morning of the tragedy he decided to go after the mezcal himself, and went to the house for this purpose, and did purchase two glasses of mezcal from Mrs. Mora, and claims not to recollect very Well what took place subsequently to taking these two drinks. That he wanted more mezcal, and they would not let him have it, and he pulled his pistol, and it was accidentally fired. The deceased caught hold of him and he fell, when in the scuffle the pistol was fired three more times, unintentionally and accidentally. He offered no testimony except his own that he had secured any intoxicants from Mrs. Mora, and this the state’s evidence would authorize a finding that it was not true. The court in his charge presented defendant’s theory of the case, and instructed them:

“Among the defenses in this ease the defendant raises the issue of an accidental killing, and on this issue you are instructed that if the defendant did not intend to shoot Santos Mora, or to kill her, and if he and she were struggling with the pistol, and if it was discharged while they were so struggling without an intent on the part of the defendant that it should be discharged, and the shot entered Santos Mora and caused her death, then the defendant is not guilty of the offense charged, and if you have a reasonable doubt as to this issue, you must give the defendant the benefit of the doubt and acquit him.”

So if we consider the evidence, this case should be affirmed. There is nothing in the record suggesting that the shot fired was intended for another. The state’s case is that appellant deliberately turned the pistol on the girl and shot her in the abdomen. His theory is that he fell and the pistol was fired unintentionally.

The motion for rehearing is overruled.  