
    COMPTON v. STATE.
    (No. 9107.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied Dec. 22, 1926.
    On Request to File Second Motion for Rehearing Jan. 5, 1927.)
    1. Homicide @=>142(6) — Under indictment alleging that accused killed deceased in F. county, proof that death occurred in L. county held not variance.
    Where indictment charged defendant killed deceased in F. county, proof that victim died two days thereafter in L. county held not variance, in view of Code Cr. Proe. 1925, arts. 195, 210.
    2. Criminal law @=>1111(3) — Refusal to retire jury for introductory proof as to defendant’s statement held not error, in view of qualification of exceptions.
    Complaint of court’s action in refusing to retire jury to permit introductory proof as to defendant’s statement held not to show error, in view of qualification of bill of exceptions that evidence showed statutory requirements were complied with before statement was introduced.
    
      3. Criminal law ©=> 1171 (3) — Argument of special prosecutor as to witness committing perjury held not reversible.
    In murder prosecution, statement of special prosecutor that he was not willing to throw bouquets at witness who committed perjury held counsel’s conclusion and not so inflammatory as to warrant reversal.
    On Motion for Rehearing.
    4. Indictment and information ©=32(4) — Statutes making homicide indictable and triable in county of assault or of death held not invalid as denial of right to demand nature and cause of accusation (Code Cr. Proc. 1925, arts. 195,-210; Const, art. I, § 10).
    Code Or. Proc. 1925, art. 195, providing for prosecutions of homicide in county of injury, or where death occurs, and article 210, permitting indictment to allege commission of offense in county of prosecution of indictment therefor, held not to contravene Const, art. 1, § 10, guaranteeing accused right to demand nature and cause of accusation.
    5. Constitutional law ©=3259 — Statutes making homicide indictable and triable in oounty’of assault or death held not invalid (Const. U. S. Amends. 5, 6, 14, § I; Code Cr. Proc. 1925, arts. 195, 210).
    Code Cr. Proc. 1925, art. 195, providing defendant may be prosecuted in county where injury was received or where death occurs, and article 210, permitting allegation in indictment that offense was committed in county of prosecution, held not invalid within Const. U. S. Amends. 5, 6, 14, § 1.
    6. Criminal law ©=3167 — Defendant could.plead conviction of manslaughter in F. county in bar of another prosecution for same offense in L. county where victim died.
    Where fatal blow was struck in F. county' and victim died in L. county two days thereafter, defendant could plead judgment rendered on' indictment in IP. county in bar to prosecution for same offense in L. county.
    7. Criminal law ©=>295 — One pleading former acquittal or conviction may prove facts showing identity of offense.
    One pleading former acquittal or conviction may allege or prove facts which show identity of offense, although it may not appear on face of indictment nor from recitals in judgment.
    On Request to File Second Motion for Rehearing.
    8. Criminal law ©=>1133 — Request for rehearing on matters omitted from prior hearings held too late.
    Request for second motion for rehearing, presenting matters omitted from both original and supplemental motions, comes too late to merit attention.
    9. Criminal law ©=>830 — Special charges on self-defense held not sufficiently specific to direot court’s attention to right to charge on threats apart from general charge.
    In murder prosecution, where court charged that any threats made by deceased would be considered, special charges on self-defense requested by defendant held not sufficiently specific to direct court’s attention that defendant was ' entitled to charge on threats, apart from general charge.
    Commissioners’ Decision.
    Appeal .from District Court, Hale County, R. C. Joiner, Judge.
    A. B. Compton was convicted of manslaughter, and he appeals.
    Affirmed.
    M. J. Baird, of Plainview, Austin C. Hatch-ell, of Dallas, and Oxford & Oxford, of Plain-view, for appellant.
    Chas. Clements, Dist. Atty., and Williams & Martin, all of Plainview, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is four years in the penitentiary.

The indictment charged that the appellant killed the deceased in Floyd county, Tex., on or about the 4th day of October, 1922, by striking him with an axe. The record discloses that the difficulty occurred in Floyd county and that the lick was struck in said county but that the deceased- died in Lubbock county two days after he was struck, and that the lick struck by the appellant was the cause of the death of the deceased. Under this state of facts, appellant very earnestly contends in a very able brief that, as it is essential'in a prosecution for homicide to allege the place of. the death that this allegation must be proved as laid, and tEat in view of the fact that the indictment charged that the death occurred in Floyd county, proof that the injured party actually died in Lubbock county is not sufficient and does not correspond with the allegations contained in the indictment. Appellant’s counsel has evidently devoted a great deal of time and thought to the preparation of his brief on this question, and it evidences great research and ability on his part. We are convinced, however, that counsel has overlooked the application of article 210, 1925 Revision of the C. C. P., in connection with article 195 of said Code. Chapter 2, beginning at page 30 of the 1925 Revision of the C. C. P., embraces article 195 and article 210.

Article 195, supra, provides:

“If a person receive an injury in one county and dies in another by reason of such injury, the offender may be prosecuted in the county where the injury was received or where the death occurred.”

Article 210 of chapter 2, supra, provides:

“In all cases mentioned in this chapter, the indictment or information, or any proceeding in the case, may allege that the offense was committed in the county where the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove that by reason of the facts in the ease, the county where such prosecution is carried on has jurisdiction.”

We think the clear language of article 210, quoted above, is conclusive to the effect that the trial court was not in error in refusing to bold that there was a variance between the allegation in the indictment and the proof offered on the trial.

By bill of exceptions No. 7, complaint is made at the court’s action in refusing to retire the jury and permit the appellant to introduce proof showing that the voluntary statement made by the appellant at the examining trial was inadmissible. This bill of exception is approved with the qualification that the “evidence showed a legal examining trial with statutory requisites complied with before the statement was introduced.” Under this qualification of the trial court, we think this hill of exception does not show error.

Appellant complains at the argument of the special prosecutor in the case. The bill shows that counsel made the following remarks in his argument to the jury:

“I don’t usually like'to jump on witnesses, but as long as they get upon the stand and commit perjury, like Allen MeReynolds has done, I am not going to throw any bouquets at them.”

The bill shows that the defendant objected to these remarks and requested the court to instruct the jury not to consider them, to which request and objection the state’s at-, tomey replied, “Yes, sir; I accused him of perjury; X sure did; and its not reversible error.” The bill shows that appellant’s counsel again objected and requested the court to charge the jury not to consider same, which the court declined to do. We think that the argument set out above was a statement of a conclusion reached by state’s counsel, and that it was not of such an inflammatory nature as to warrant a reversal of the case. The witness MeReynolds may have told the truth, but we do not believe that his testimony carries with it such convincing and inherent evidence of verity as to make it reversible error for .the state’s counsel to- reach the opposite conclusion and to state such conclusion to the jury.

We have carefully considered the other complaints raised by appellant in his bills of exception and believe that none of them present error. So believing, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, .1.

We have examined with interest appellant’s motion for rehearing, his argument thereon, and the authorities cited in support of his contention.

Chief reliance seems to be upon Ball et al. v. United States, 140 U. S. 118, 11 S. Ct. 761, 35 L. Ed. 377, and Brockway v. State, 192 Ind. 656, 138 N. E. 88, 26 A. L. R. 1338. In the jurisdictions where these cases arose there was a statute corresponding to our article 195, C. C. P. 1925 (quoted in the original opinion), but if does not appear from those decisions that there was also a statute corresponding to our article 210, C. C. P. (also quoted in the original opinion). It may be that our lawmakers inserted article 210 in the Code to prevent the very question discussed in the cases referred to from arising. In addition to articles of our C. C. P. already mentioned, others may be noted! Subdivision 5, art. 396, C. C. P. 1925, requires the indictment to show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented. Article 400, C. C. P. 1925, provides that:

“When the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the I county where the same is prosecuted, or in any . county or place where the offense was actually committed.”

Effect has been given these various articles many times. Numerous cases may be found collated in the notes under said articles as found in Vernon’s Ann. C. C. P. of Texas 1925. Article 190, C. C. P. 1925, is as follows:

“An offense committed on the boundary of any two counties, or within four hundred yards thereof, may be prosecuted and punished in either county.”

This statute has been given application even where a river was the dividing line between the counties. Hackney v. State (Tex. Cr. App.) 74 S. W. 555. Where an offense was committed in an unorganized county and indictment returned in the county to which the unorganized county was attached for judicial purposes (it being alleged in tile indictment that the crime was committed in the county where the indictment was presented), it has been held that article 210, supra, did not apply, because there was no statute providing for “laying the venue of an offense committed in an unorganized county in the county to which it may be attached for judicial purposes.” Chivarrio v. State, 15 Tex. App. 330. The implication cannot be escaped from the announcement in said case that if there had been such a statutory provision it would have been proper to allege that the offense occurred in the county where the prosecution was instituted. The holding in Chivarrio’s Case has no application here.

We have not been able to perceive wherein the various articles of the statute referred to, and especially article 210, are in contravention of section 10, art. 1, Constitution of Texas, guaranteeing that an accused “shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.” Neither do we agree with appellant’s contention that said statutes are contrary to the Fifth, Sixth, and Fourteenth (section 1) Amendments of the Constitution of the United States.’

Appellant takes the position that he would he unable to plead a judgment rendered on the present indictment in bar of another prosecution for the same offense in Lubbock county should one lie there instituted. This is wholly untenable. One pleading former acquittal or conviction in this state may allege and prove the facts which show the identity of the offense although this may not appear upon the face of the indictment nor from the recitals in the judgment. The evidence shows that death occurred in Lubbock county and resulted from the injury inflicted in Floyd county. Under the facts a quotation from- the opinion in Spencer v. Commonwealth, 194 Ky. 699, 240 S. W. 750, seems appropriate.

“It would be absurd to say that one indicted for the crime of murder by feloniously shooting -another in one county, and the death followed in another, that such indictment would not apprise him of the crime for which he was to be tried, from the fact that it charged him with the -acts and consequences necessary to make the complete offense as having all occurred in the county where the crime became complete. Further, there could be no question but that 'such trial would be a complete bar to another trial for the same crime, since 'all the elements of the -crime were proven upon the trial.”

Counsel for appellant have made an exhaustive investigation of the subject and present their views in a forceful manner, but we have been unable to agree to the soundness of their position. The motion for rehearing is overruled.

On Request to File Second Motion for Rehearing.

On April 1, 1926, appellant filed a motion for rehearing consisting of 21 pages, in which the only question raised was the one discussed in the opinion on rehearing. On April 28, 1926, he filed a supplemental motion and argument, which also related to this single point. On May 26, 1926, a supplemental argument was filed which .discussed certain alleged errors in the charge upon self-defense and the refusal of special charges upon the same subject. This argument is based wholly upon a matter not mentioned or referred to in either the motion or supplemental motion. It was not attached to either of the motions and was overlooked at the time the opinion on rehearing was considered, but even had our attention been directed to it the propriety of its consideration is doubtful, because the matters to which it relates were not mentioned in the motions referred to. Appellant now asks leave to file a second motion for rehearing presenting the matters omitted from both the original and supplemental motions. We think it comes too late to merit attention. However, being solicitous that no injustice be done appellant, we have investigated the question presented and believe the exceptions urged to the charge on self-defense entirely too general to call the trial court’s attention to the particular point now urged, which is that appellant was entitled to a charge on “threats” not intermingled with a general charge on self-defense. Appellant urges that if his exceptions were too general his special requested charges were sufficient to have called the court’s attention to the point. We have examined them and are not in accord with his contention. The court already having undertaken to charge upon the subject of self-defense, in which the jury was told that any threats made by deceased could be considered, the special charges (even when taken in connection with the indefinite exceptions to the charge given) were not specific enough to direct the court’s attention to the point now urged as error. Boaz v. State, 89 Tex. Cr. R. 524, 231 S. W. 790; Parker v. State, 98 Tex. Cr. R. 209, 261 S. W. 782; Bell v. State, 99 Tex. Cr. R. 61, 268 S. W. 168.

Appellant’s request to file second motion is denied. 
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