
    ROBERTS v. STATE.
    (No. 8216.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1924.
    Appeal Reinstated Dec. 17, 1924.
    Rehearing Denied March 4, 1925.)
    1. Criminal law 087(1) — Appellate court without jurisdiction, where record fails to show notice of appeal.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 915, Court of Criminal Appeals is without jurisdiction, where record on appeal fails to show that notice of appeal was given and entered of record.
    On Motion to Reinstate Appeal.
    2. Indictment and information <&wkey;196(6)— Misnomer of accused cannot be first raised by motion in arrest.
    Defendant not suggesting misnomer when indictment was read to jury,and he was called on to plead could not take advantage thereof by motion in arrest of judgment, in view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 559-563.
    3. Criminal law &wkey;>829(l) — Charge covered by charge given properly refused.
    Refusal of special charge covered by charge given is not error.
    4. Criminal law <&wkey;366(l) — Statement of prosecuting witness to defendant at time of assault as to physical condition held admissible as res gesta.
    In prosecution for aggravated assault, prosecuting witness’ testimony that he told defendant at time of assault that he was “all stove up” and could not use shoulder, held admissible as res gestae, though indictment did not allege that he was decrepit person.
    5. Criminal law &wkey;>365(I) — Evidence of as-‘ sault by defendant’s brother at same time held admissible as res gestee.
    In prosecution for aggravated assault, evidence that defendant’s brother was with him at time and also assaulted prosecuting witness, held admissible as res gestee.
    6. Assault and battery <&wkey;83 — Testimony as to defendant’s ability to pay person assaulted held admissible.
    In prosecution for aggravated assault, provoked by prosecuting witness’ remarks in endeavor to collect debt, witness’ testimony that he paid sum of money to defendant shortly before conversation, in which prosecuting witness charged defendant with lying when defendant asserted that he did not have money to pay, held admissible.
    7. Assault and battery &wkey;>92 — Conviction of aggravated assault sustained.
    Evidence held sufficient to sustain conviction of aggravated assault.
    On Motion for Rehearing.
    8. Assault andi battery &wkey;>92 — Proof of injury held to sustain conviction of aggravated assault.
    In prosecution for aggravated assault, testimony of injured party as to confinement in bed and pain suffered and doctors’ testimony as to fracture of skull and low-grade meningitis, which could have resulted in death, insanity, or impairment of senses, held sufficient proof of serious bodily injury.
    9. Criminal law <&wkey;>1056(2) — Exception to charge necessary for review.
    Under Practice Act 1913 (Vernon’s Ann. Code Cr. Proc. art. 735 et seq.), one dissatisfied with court’s charge must present written exception to court below to obtain review.
    10. Criminal law <&wkey;363 — Statements of parties at time res gestae.
    What is said and done by parties to criminal transaction at time is ordinarily deemed res gestae.
    
      11. Criminal law &wkey;366(l)—Prosecuting witness’ testimony as to calling for help held admissible as res gestee. -
    In prosecution for aggravated assault, plaintiff's testimony as to calling to defendant’s companion for help while being beaten held res gestee.
    12. Assault and battery <&wkey;89—Prosecuting witness’ testimony defendant’s companion did nothing when called to for help held admissible.
    In prosecution for aggravated assault, prosecuting witness’ testimony that defendant’s companion at time did nothing when called to for help held admissible.
    13. Assault and battery <&wkey;89—Evidence of transactions connected with assault admissible.
    All transactions between defendant, prosecuting witness, and others, fairly leading up to and connected with assault charged, and affecting defendant’s acts and attitude in transaction, are admissible.
    14. Assault and hattery &wkey;>87—Evidence of defendant’s refusal to pay debt on demand, admissible.
    In prosecution for' aggravated assault, evidence that defendant had money to pay debt to prosecuting witness, but refused to do so and attacked latter when called on therefor, or fact that he had no money and was unable to pay in same situation, would be admissible.
    Appeal from McLennan County Court; Giles P.. Lester, Judge.
    Burt Roberts was convicted of aggravated assault, and appeals.
    Affirmed.
    Williams, Williams, McClellan & Lincoln, of Waco, for appellant.
    Walton D. Taylor, of Waco, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of McLennan county of aggravated assault, and his punishment fixed at a fine of $250 and 39 days in the county jail.

Our attention is called to the fact that the record fails to show that any notice of appeal was given and entered of record. It is held to be imperative by the decisions of the court under article 915 of our Code of Criminal Procedure that the record in this court on appeal show such notice to have been given and entered. Otherwise this court is without jurisdiction. Palmer v. State, 63 Tex. Cr. R. 614, 141. S. W. 109. See authorities collated under article 915, supra.

Being without jurisdiction to decide the questions raised or hear the matter further, the appeal is dismissed.

On Motion to Reinstate Appeal.

This case was dismissed at a former day of the term because the record contained no notice of appeal. By sufficient evidence on file in this court it is now shown that said order should have appeared in the record, and the judgment of dismissal is set aside and the case now considered on its merits.

Appellant was convicted of an aggravated assault on one Maynard. Briefly, the facts show that Maynard had paid a security debt for appellant, and that shortly before the alleged assault he had a conversation with appellant in an effort to induce him to repay the money paid out on said suretyship. Appellant told him 'that he did not have the money, and Maynard said that he knew that Fenter had paid to appellant $400 shortly before. Appellant repeated that he did not have the money to pay, and Maynard said that appellant was a damned liar, that he did not intend to pay it. Appellant made some remark about being at the place where they were, and that if Maynard was somewhere else he would not talk to him likfe that, whereupon Maynard said he would go anywhere. Appellant said that he would see Maynard later. According to the testimony, a few days later appellant, his brother, and some others waited at a certain place until Maynard came up, when an altercation and the alleged assault took place.

Appellant’s first bill of exceptions complains of the refusal of his motion in arrest of judgment based on the proposition that his name is Burk Roberts, and that he was charged as Burt Roberts, and that the record was devoid of proof that he was ever known or called Burt Roberts. If appellant was not charged by his correct name he should have suggested that fact when the indictment was read to the jury and he was called on to plead. Failing to then do so, he could not thereafter seek to take advantage of- such misnomer, if any. Articles 559-563, Vernon’s O. O. B., and authorities collated.

The refusal of special charge No. 3 was not erroneous in view of the giving of a special charge covering the same subject-matter, and the further fact that the evidence showed that an injury to Maynard caused by a falling ladder was upon a different part of his body from' that inflicted by appellant.

As part of the res gestee of the transaction Maynard testified that, wffien he met appellant and the others claimed by the state to be acting with him at the time of the alleged assault, he told appellant he was “all stove up,’’ that he could not use his right shoulder as a ladder had fallen on it. It was objected to this that there was no allegation in the indictment that Maynard was a decrepit person. We see no impropriety in permitting the state to introduce what was said and done by the parties at the time.

In the development of its ease the state showed that appellant’s brother was with him at the time of the alleged assault and himself made an assault on Maynard. This seems' entirely permissible as part of the res geste of the transaction, and the bill of exceptions complaining thereof is without merit. This same proposition applies to the bill of exceptions, complaining that Maynard was permitted to testify to the fact that when assaulted he called for help and none of the bystanders aided him. The bystanders were of appellant’s party, were with him, and apparently waited with him some time for Maynard to come up, and when he appeared they were around him at the time appellant was alleged to have committed the assault.

That the alleged assault grew out of feeling on the part of appellant against Maynard because the latter had endeavored to collect from him money paid on a security debt seems beyond question,’ and we do not think it was error for the court to permit Mr. Renter to testify that a short time before the conversation had by Maynard with appellant he had paid to the latter $400.

The evidence shows that Maynard’s skull was fractured and that lie suffered a low-grade meningitis as the result of the injuries inflicted by the alleged assault. It was not error to refuse a special charge telling the jury that they could not convict appellant 'of an aggravated assault. An examination of the various exceptions reserved to the charge of the court and of the special charges presented and considered by us shows that the exceptions to the charge were identical with the special charges asked, none of which it seems to us to be called, for by the facts, save those which' were given, and the. giving of which obviated the necessity for others requested.

Appellant makes complaint in his brief of certain errors in the charge of the court which were not excepted to at the time, and insists that for them the case should be reversed. We regret we cannot consider the errors mentioned. The purpose of the law, requiring exceptions to the charge before it is read to the jury, was to enable the court to then correct his charge in any particulars wherein same might be erroneous, and, if the matters complained of in the brief had been excepted to and at the proper time called to the court’s attention, he doubtless would have corrected same.

We deem the facts in evidence sufficient to justify the conclusion reached by the jury, and the judgment will be affirmed.

On Motion for Rehearing.

Appellant makes his motion for rehearing without the original papers before him, which probably accounts for his assertion that he is deprived of a statement of facts. There appears in the transcript in this case a statement of facts signed and approved by the judge of the trial court, in his certificate appearing the statement that, because of the inability of the attorneys to agree on a statement of facts, he now prepares and presents this.

We regret our inability to agree that proof of serious bodily injury, this being the ground of aggravation, is not shown. The matter is discussed to some extent in the original opinion. Maynard, the injured party, said he was in bed for more than a week after the injury, in consequence thereof, and for 30 days suffered pain in his head where he was kicked and beaten. As stated in the opinion, two doctors testified that there was a fracture of the skull and a low-grade meningitis which could have resulted in death, insanity, or impairment of the senses.

We find nothing in the case to cause us to vary the established rules, of this court since the Practice Act of 1913 (article 735 et seq., Vernon’s Ann. Code Cr. Proc. 1916), which requires one who is dissatisfied with the court's charge to take his exception thereto and present same in writing to the court below.

What is said and done by parties to a criminal transaction at the time is ordinarily deemed res gestae, and that Maynard, while he was being beaten by appellant and his brother, called to Harper for help would clearly come within the rule of res geste. Shumate v. State, 38 Tex. Cr. R. 280, 42 S. W., 600.

Appellant renews his complaint of the action of the court below in letting Maynard testify that, when he called 'to Harper for help, the latter did nothing. The qualification of the court below to the bill of exceptions presenting this complaint, and also the statement of facts, raises the issue seriously as to the acting together of appellant, his brother, and Harper. It is shown from the above that Harper, appellant, and his brother waited at a certain place for a good while until Maynard came along; that, when appellant and his brother got off their wagons and advanced toward Maynard, Harper did likewise; that, while appellant and his brother were attacking Maynard, Harper stood within a few feet and made no effort to interfere or to assist Maynard, or prevent appellant and his brother from beating and kicking him, as was done, according to the state witnesses. . If the state had offered to prove, in this condition of the record, that Harper made some statement to appellant, aiding and encouraging and inciting him to further attack and injure Maynard, this would have been admissible.. We have no doubt of the admissibility of the fact that, when called on to help Maynard, he refused.

All of the transactions between appellant, Maynard, and others, fairly leading up to and connected with the assault and affecting appellant’s acts and attitude in the transaction, would be admissible. If one had plenty of money with which to pay a security debt, and refused to do so when called on, but instead attacked and fought the party Who called on him to pay such debt, these facts would seem admissible, as would the fact that he had no money and was unable to pay in the same situation.

Believing the case was properly disposed of on the original presentation, the motion for rehearing will be overruled. 
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