impossibility for said axe to have inflicted said wound, said testimony would have greatly weakened the state's case, and would have tended strongly to show that the defendant was innocent. Various objections were urged to this by the state, which objections were sustained and the testimony excluded. The judge states that this bill is signed with the qualification that the statement of facts is referred to, and further that the witness could give a description of the wounds and axe and let the jury pass on the matter. We are inclined to the opinion that this testimony was admissible under the circumstances stated. See Betts v. State, 60 Tex. Cr. R. 634, 133 S. W. 251; Waite v. State, 13 Tex. App. 169; Banks v. State, 13 Tex. App. 182; Kirk v. State, 37 S. W. 440. It seems to be practically the well-settled rule that experts may be permitted to testify that certain instruments may or could have inflicted wounds when those wounds were the subject of investigation. The wound may have been inflicted by this axe, and as the state was seeking to prove this and relying upon it, the reverse of the proposition ought to be that defendant could prove that it was not and could not have been done by the axe. This was described by the witness as being an ordinary poll axe, and the wound was described as It dict. As to whether or not the failure of defendant to testify was referred to he said: "I never heard it mentioned in connection with the deliberation of the jury, that is, in connection with the verdict; the only time I heard it mentioned was last night, but last night I heard some one make the assertion that if they were being tried for killing their wife they would have taken the stand in their own defense;" that is, if they were charged with or being tried for killing their wife they would take the stand in their defense. This was at night after their retirement in the evening about 3:30 o'clock before returning the verdict the following morning about 9 or 9:30 o'clock. He says: "I don't remember just how many mentioned this-just how many times I heard it but possibly just the one time, just by the one man, and I don't know who that was now. I don't know that I heard but one person say that if they were being tried, charged with killing his wife, he would take the stand in his defense, but probably some one else commented on it." He further says that after the jury retired they took what he called a secret ballot, and that resulted in a unanimous vote of guilty. This reference to the failure of defendant to testify occurred after that but before the verdict was reached. It was also mentioned, he says, in this connection, that when the remark was made some one said, "We could not consider that because the court charged us not to do so." When they took the first ballot as to the penalty 9 men stood for 5 years, and the other 3 men were for above 5 years. being much smaller that the length of the poll of the axe and of smooth appearance. seems from this testimony also that the poll of this particular axe was ragged and jagged on the edges. We are of opinion that under these circumstances this testimony should have gone to the jury to be weighed by them. 5 years, and the others above 5 years. Then The state's whole case seems to have revolved around and depended upon the fact that deceased was killed by the use of this axe. There was also in this connection a serious contention by the state that there was blood found upon the axe, and by the defendant that the substance seen upon the axe was not blood. We are of opinion that the doctor under this bill of exceptions should have been permitted to testify to these facts. [2] There is another bill of exceptions reserved to the action of the court overruling certain matters set out in the motion for new trial, among others, misconduct of the jury in referring to the failure of appellant to testify during the trial. We are of opinion that this contention should have been sustained. See Mizell v. State, 197 S. W. 300, and cases cited in that opinion; Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624; Fine v. State, 45 Tex. Cr. R. 290, 77 S. W. 806; Buessing v. State, 43 Tex. Or. R. 85, 63 S. W. 318; Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251; Tate v. State, 38 Tex. Cr. R. 265, 42 S. W. 595. The facts in this connection show by the Juror Stallings that he was a member of the jury, and that the jury retired about 3:30 He also testified that this did not influence his verdict. One, at least, of the jurors was for 25 years. Grigsby, another juror, testified in reference to their secret ballot of guilt and that they stood 9 to 3, 9 in favor of he says: "While I was in the jury room I heard some one make the remark that if they had been charged with killing his wife he believed that he would go on the stand and testify in his remember who it was that made this remark; I don't own behalf, or something like that. don't know whether I knew who it was at the time or not, but we didn't have any discussion about that." He says some one spoke up and said, "We must not consider that." He did not recall who it was made the remark. There was no one else in the jury room except the 12 jurors. Wallace, another juror, testified that: Some one made the remark that if they were charged with killing their wife he would have gotten on the stand, or that they could not have kept him off of the stand, or something like that; "one of the jurors made that remark, and some one just replied that we could talk on that subject, about her evidence or anynot bring her in that way; that we couldn't thing that way; that we couldn't talk about that." These three jurors seemed to have been for a verdict of 5 years. The verdict returned was for 6 years. Under the cases cited this was such an allusion to and comment on the failure of the defendant to testify as to require a reversal consideration by the jury could hardly be questioned. These references to the fact that appellant did not testify served to emphasize the manner in which those who made the statement considered her failure to testify. This carries with it the fact that the jurors making such remark had in their mind the idea that appellant was derelict in not taking the stand under the circumstances and testifying, and it evidently made such an impression as caused the use of such language. Only 3 jurors testified; the maining 9 were present, but were not used. The district attorney wanted the record to show their presence; it does so show, but they were not placed upon the stand. The testimony was not questioned. This constituted the evidence in regard to the matter be fore the court. re The judgment will be reversed, and the cause remanded. SMITH v. STATE. (No. 4610.) A bill not stating the time elapsing between prosecutrix' statement and the time when the rape was committed, but simply urging that it was not admissible as original testimony, not being a part of the res gestæ, and not made in the presence of defendant, was insufficient, as it did not exclude the idea that the statement was sufficiently close to bring it within the res gestæ rule. 9. CRIMINAL LAW 1144(10)-RULINGS OF TRIAL COURT-PRESUMPTION. It will be presumed on appeal that the rul ings of the trial court are correct, where not (Court of Criminal Appeals of Texas. Oct. 17, shown in some way to be incorrect. 1917. On Motion for Rehearing, 2. CRIMINAL LAW 1091(4)-BILLS OF EXCEPTIONS-SUFFICIENCY. Bills of exception to evidence to present matters for review should show the answer to the questions and the connecting facts. 3. CRIMINAL LAW 1091(8)-BILLS OF EX CEPTIONS-SUFFICIENCY. A bill reciting that while the county attorney was making his closing argument he used the following language, “Martha Forney, defendant's witness was within call of the courthouse, and defendant did not have her summoned or used as a witness in the other trial of this case," to which argument defendant called the court's attention, and requested it to give a special charge in writing to the effect that they could not consider for any purpose the argument, and urging as an objection that the argument called the attention of the jury to a previous trial, and that no testimony had been introduced showing said witness had not been summoned, etc., was deficient, as the grounds of objection are not statements of fact, but simply grounds of objection. 4. CRIMINAL LAW 720(1) — ARGUMENT OF COUNSEL As the county attorney brought out testimony on cross-examination of defendant's witnesses that this was the first time they had testified in the case, the argument had a basis in the facts. On Motion for Rehearing. 1091(3)-BILLS OF Ex 1091(5)-BILL OF EX 10. CRIMINAL LAW CEPTIONS-SUFFICIENCY. A bill complaining of exclusion of question should have stated what was the expected answer. 11. CRIMINAL LAW 1091(3)-BILL OF EX CEPTIONS-SUFFICIENCY. A bill reciting that the state asked a witness, "What did you do?" and that the court remarked if it was something about an examination, it would be admissible, is too indefinite; it not showing what the matter related to, or how the question came to be asked. Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge. Walker Smith was convicted of rape, and appeals. Affirmed. Arthur A. Seale and S. M. Adams, both of Nacogdoches, and J. A. Spears, of Cushing, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of rape, and awarded seven years' confinement in the penitentiary. This is the second appeal; the first being found reported in 188 S. W. 983. [1] There are two counts specified in the indictment, one alleging rape committed by force, and the second count charges rape upon a girl under 15 years of age. Appellant made application to require the state to elect upon which count it would proceed with the trial. This was refused by the court, and under the authorities we think the action of the court was correct. See volume 1 Branch's Ann. P. C. § 444. It is not necessary to require the state to elect where the indictment charges in various counts the same offense to meet any possible contingency that might arise under the facts. 5. CRIMINAL LAW CEPTION-SUFFICIENCY. A bill reciting that while defendant was being cross-examined the state was permitted to ask and prove by him who was keeping house for him, to which defendant objected because [2] There are quite a number of bills of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes there and said something to the defendant. Objection was urged to this because it was not part of the res gesta. Just what the error was is not shown by this bill, nor is it exception, we think, that do not require discussion. They are so indefinite as not to present revisable matters. By way of illustration bill No. 1 recites that the state, over appellant's objection, was permitted to ask pros-shown anything was said between the parecutrix the following question: "Did it hurt you or not?" And defendant objected for the reason that same was leading, which objection the court overruled, and appellant reserved his bill of exceptions. There is no answer given. In order that bills of exception present matters for review, the bill should show the answer and connecting facts that this court may be able to determine whether there was error or not. The following bill of exceptions says the court erred in permitting the same witness to be asked the following question: "Did his private parts go into you-penetrate your privates or not?" There is no answer given to this question. Appellant asked this question of the same witness: "Don't you know that if you had said a word, or had holloed, that some one would have heard you?" This is all the bill shows. No answer is given, and no expected answer. The same may be said about practically all of these bills of excep tion. ties, or what Mally Green said to the defendant, or whether she said anything. Another bill recites the state asked the same witness, Mally Green, "What did you do," and appellant objected to that; it being contended that appellant was not present. There was no answer given, nor any of the facts showing that anything could have been injurious by reason of asking this question. [3] Another bill recites that while the county attorney was making his closing argument he used the following language: "Martha Forney, defendant's witness, was within call of the courthouse, and the defendant did not have her summoned, or used as a witness in the other trial of this case." To which argument defendant called the court's attention, and requested the court to give a special, charge in writing to the effect that they could not consider for any purpose the argument of the county attorney wherein he stated that Martha Forney, defendant's witness, was within call of the courthouse, and defendant did not have her summoned or used as a witness on the other trial of this Going down the list we find bill No. 7 recites that while the defendant was on crossexamination by the state he was asked who case. The objection urged was that the arwas keeping house for him. To this defend-gument called the attention of the jury to a ant objected because it was prejudicial and seeking to get before the jury that some oth. er negro woman, and not his wife, was living with him. These are but grounds of objection, and do not state the answer or the expected answer. Grounds of objection cannot be held to state facts. Bill No. 8 recites that the state was permitted to ask and prove by Fannie Durst that Golly Booker, the alleged injured party, came to where she (Fannie Durst) was working, and told her that the defendant, Walker Smith, had done something to her, and had intercourse with her, throwing her upon the bed, getting on top of her, etc. The objection was that this was not original testimony, and could not be used against the defendant, that it was not part of the res gestæ, not in the presence and hearing of the defendant, and was prejudicial. These are but grounds of objection. The length of time between the supposed act of getting on top of her and having intercourse with her, and the time of the statement, is not shown. It may have been immediately so as to constitute part of the res gestæ, but the bill of exceptions is silent upon this question, except as stated in the ground of objection, which does not take the place of the facts. Another bill recites that while the state's witness Cloudy was testifying the prosecution was permitted to ask if he saw defendant at Mally Green's house, and at another house in that vicinity, just before the witness previous trial, and that no testimony had been introduced showing said witness had not been summoned as a witness on the other trial, was outside of the record, and that unsworn statements of counsel for the state before the jury, on material facts adverse to a defendant or his witness which are not put and prejudicial to the rights of a defendant in evidence during the trial, are improper asmuch as these grounds of objection are before the jury. We are of opinion that innot statements of fact, but simply grounds of objection, that the bill is deficient. witness, Martha Forney, the state brought [4] On cross-examination of appellant's out testimony, without objection by appel lant: "That this is the first time I have testified in this case. I lived here when it was tried before, but I never testified then. I do not know how far it is from my house to the courthouse." ney made in his argument. On cross-examiThis was the reference the county attornation of the witness Cloudy appellant also brought out evidence relating to the former trial. We are of opinion that the county attorney's argument had a basis in the facts. Referring to the testimony of the witness Martha Forney, as found in the statement of facts, it is discovered she lived in the town of Nacogdoches, and but a few steps from where this rape is said to have occurred, and she narrates some of the testimony that occurred between the parties in which defendant took part. She further testified. "This is the first time I have testified in this case. I lived here when it was tried before, but I never testified then. I don't know how far it is from my house to the courthouse." We are of opinion that there is no error shown by this bill of exceptions. We are of opinion that the evidence is sufficient to justify the finding of the jury, but deem it unnecessary to state the facts. The judgment is affirmed. On Motion for Rehearing. Appellant, in his motion for rehearing, insists the court was wrong in not considering his bills of exception on the grounds stated in the original opinion. At the urgent insistence of appellant's counsel we have again looked over these bills and think we were correct. [5, 6] One of the bills about which he complains recites that: "The court permitted the state to ask and prove by the defendant on cross-examination, while he was on the stand, who was keeping house for him." Appellant objected because it was prejudicial, and served to get before the jury that some other negro woman than his wife was keeping house for him. There is nothing in the bill to indicate that he testified who was keeping house for him, whether it was his wife or some one else. We are unable to tell from this bill what the answer was, if any was given. We might fairly presume from this statement that somebody was keeping house for him. His contention that it was getting before the jury that some other woman than his wife was keeping house for him is purely a ground of objection. The bill does not so show. The bill must be specific enough to show in some manner and manifest to this court what it took to constitute the supposed erroneous ruling of the trial court. This court cannot presume that objections are statements of fact. [7] We are referred to the opinion on former appeal where it is stated that the court should not have permitteu the state to prove that appellant's wife had been sent to the penitentiary, and that appellant had lived with his wife only three days after being released from the penitentiary. Whether he had treated his wife rightfully or wrongfully is not an issue in this case. That question, however, is not presented on this appeal so far as this bill of exceptions is concerned. On the former appeal that was a legitimate deduction and conclusion by the court from the bill then under consideration. We can not refer to the statement of facts in order to supply such omissions in bills of exception. This seems to be the rule under practically all the authorities. [8, 9] The same may be said with reference to bill No. 8. It recites that the state, over appellant's objection, was permitted to ask and prove by state's witness, Fannie Durst, that Golly Booker, the alleged in jured party, came to where she (Fannie Durst) was working, and told her that the defendant, Walker Smith, had done something to her, and had intercourse with her, throwing her upon the bed and getting on top of her. The objections urged here were that it was not admissible as original testi mony, was not a part of the res gestæ, and not in the presence and hearing of the defendant. The time elapsing between the time that the prosecutrix made her statement to Fannie Durst and the time when the assault to rape was committed is not stated. It may have been immediately or sufficiently close and under such circumstances that brought it within the rule of res gestæ. The bill does not exclude this idea, and is silent upon that question. The objections stated, that it was not a part of the res gestæ, does not establish that objection as a fact. In order to determine that matter the time elapsing between the alleged rape and the conversation had between Fannie Durst and the prosecutrix should have been stated. It may have been admissible, but we cannot decide that question because the bill of exceptions is silent upon it. We indulge the presumption that the rulings of the trial court are correct, unless in some way shown to be erroneous. [10] The same may be said of bill No. 4. By that bill it is shown the following question was asked the prosecutrix: "Don't you know that if you had said a word, or had holloed, that some one would have heard you?" There was no answer given, and no exIn the motion for pected answer stated. rehearing it is conceded no answer was giv en, nor does it state what he expected to prove had witness been permitted to answer. We cannot supply this omission. The bill could have stated what was the expected answer. [11] Appellant also complains that the court erred in not considering bill No. 10 as being sufficient. It recites the state asked Mally Green the following question: "What did you do?" The appellant objected, and the court remarked if it was something about an examination it would be admissible. This is the bill. It is apparent it is too indefinite. It does not show or state what Mally Green did, and the court informed counsel that if it was something that related to an examination it would be admissible, but the bill does not show what the matter related to, nor how the question came to be asked, what the witness Mally Green did. These are the questions presented in the motion for rehearing, and because they are insisted upon in the rehearing, we have thought it proper to notice them. There is no reason shown why the former opinion of this court should be changed; therefore the motion for rehearing is overruled. HARKEY v. STATE. (No. 4658.) requires that it shall be an annual tax. This is, therefore, a limitation placed by the stat (Court of Criminal Appeals of Texas. Oct. 31, ute itself as to the manner of levying the 1917.) LICENSES 42(3)-OCCUPATION TAX-PENALTY FOR FAILURE TO PAY-INFORMATION. Under Rev. St. art. 7355, § 36, providing that there shall be collected from each owner or keeper of every kinetoscope and cinematograph or similar machine or instrument used for profit an annual occupation tax of $25, an information charging defendant with the occupation of keeping a kinetoscope and cinematograph, and a similar machine and instrument used for profit, which show the lifelike motion of persons and animals, the said occupation being taxed by law without first obtaining licenses therefor, and the taxes then and there due by him to the state upon said occupation amounting to $50, and the tax then and there due the county from said occupation amounting to $25, the said taxes due the county having been theretofore duly levied by the commissioners' court of said county, was insufficient, there being no attempt to charge as required by the statute the annual tax, or an allegation to show that more than one annual tax was due. Appeal from Rains County Court; W. E. Rabb, Judge. L. H. Harkey was convicted of the occupation of keeping a kinetoscope and cinematograph without first obtaining a license therefor, and appeals. Reversed and remanded. B. A. Carter and W. F. Shipp, both of Emory, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. The complaint and information charge appellant with the occupation of keeping a kinetoscope and cinematograph, and a similar machine and instrument used for profit, which show the lifelike motions of persons and animals, the said occupation being taxed by law, without first obtaining license therefor, and the taxes then and there due by him to the state upon said occupation amounted to $50, and the taxes then and there due the county upon said occupation amounted to $25, the said taxes due the county having been theretofore duly levied by the commissioners' court of said county. The information follows the complaint. This is alleged in the information, and the complaint as well, as having occurred on the 2d day of September, 1916. Article 7355, § 36, of the Revised Civil Statutes levies on the alleged business an annual tax of $25. The commissioners' court was authorized to levy half the amount of the annual tax. In order that the commissioners' court may collect they must, at the time stated in the statute, levy each year occupation taxes equal to one-half of that levied by the state, which is $12.50 in this particular instance. There is no evidence that the commissioners' court of Rains county ever provided for the collection of such occupation tax. The statute above cited requires the payment of an annual tax of $25 each year. The statute limits the amount to be paid, and tax, and the length of time authorized by such levy for following the occupation. It will be noticed the information charges that on the 2d day of September, 1916, appellant was following such occupation without having paid the tax, which was alleged to be $50. The statute, as before stated, levies $25, not $50 as charged. There was no attempt in the information to charge as required by the statute the annual tax; nor does the information undertake to charge that he has been running for more than one year, requiring more than $25. Where the statute provides the manner and means, the pleadings must follow these definitions and requirements. The punishment provided in the Penal Code for a violation of the statute would be not less than the amount of the tax, nor more than double that amount. The information charges it was $50. The amount of the tax is not that set out in the statute, but double that amount. The punishment awarded by the jury was $75. Whether this included the amount of taxes levied by the commissioners' court would hardly be surmised on account of the fact that no evidence was introduced showing the county had ever levied a tax. The information therefore does not charge a violation of the statute, and if the party had been pursuing suitable allegations should be made to show the business for more than one year, then there was more than one annual tax due. The information therefore, we think, is invalid, and the conviction is wrong. sheriff, who is also tax collector, testified that appellant paid the tax from the 1st of May, 1916, to the 1st of May, 1917; therefore the year 1916 could not have been included, or ought not to have been included, in the information and complaint. The As the matter is presented, the judgment will be reversed, and the cause remanded. FERNANDEZ v. STATE. (No. 4671.) (Court of Criminal Appeals of Texas. Nov. 7, 1917.) 1. CRIMINAL LAW 11662 (8) - REVIEW CHALLENGE FOR CAUSE AFTER EXHAUSTION OF PEREMPTORY CHALLENGES. If a cause for challenge is well taken, and defendant, having exhausted his peremptory challenges, is forced to take the talesman as a juror, he is entitled to reversal; for peremptory challenges are given to be exercised by defendant independent of challenges for cause. 2. JURY 108 – CAUSE FOR CHALLENGE STATEMENT OF JUROR-PUNISHMENT. Where a talesman, when tested as to his qualifications to sit as a juror in a prosecution for violating the local option law, stated positively that he would not under any circum stances accord accused the benefit of the sus pended sentence law, the statement constituted a cause for challenge. |