Volume 154 — Texas Criminal Reports

<bold>1. — Evidence — Admission of Appellant — Possession of Beer</bold> <bold>— Effect.</bold> Appellant's complaint as to the sufficiency of the search warrant and of the finding of the beer by the officers was rendered untenable by appellant's admission that he possessed the beer. <bold>2. — Charge — No Exceptions — No Charges Requested — Errors</bold> <bold>Not Considered.</bold> Where there are no exceptions to the court's charge, and no requested charges, alleged errors in the charge cannot be considered. <bold>3. — Beer — Ownership — Possession.</bold> Ownership of beer is not necessary to constitute possession.<page_number>Page 149</page_number> <bold>4. — Beer — Possession — Dry Area — Not Unlawful.</bold> The mere possession of beer in a dry area is not unlawful. <bold>5. — Beer — Possession for Sale — Dry Area — Unlawful.</bold> It is only the possession of beer for the purpose of sale that constitutes an unlawful act. <bold>6. — Beer — Possession for Sale — Dry Area — Amount —</bold> <bold>Immaterial.</bold> The possession of one bottle of beer for the purpose of sale in a dry area is as much a violation of the law as is the possession of a case or more. <bold>7. — Beer — Possession — Dry Area — Not for Sale — Amount</bold> <bold>Immaterial.</bold> Possession of beer in a dry area, regardless of the amount, is not unlawful so long as it is not possessed for the purpose of sale. <bold>8. — Beer — Possession for Sale — Dry Area — Prima Facie</bold> <bold>Rule.</bold> The statute makes the possession of more than twenty-four 12-ounce bottles or cans of beer in a dry area prima facie evidence of possession for the purpose of sale. <bold>9. — Prima Facie Rule — Possession for Sale — Establishes</bold> <bold>Without Proof.</bold> The prima facie rule, as to the possession of intoxicating liquor, furnishes the state a rule of evidence by which it may show that the liquor was possessed for the purpose of sale without the necessity of establishing such fact by proof. <bold>10. — Verdict — Defined.</bold> A verdict is the written declaration of a jury of their decision of the issues submitted to them. <bold>11. — Verdict — Sufficient — Finding Ascertained.</bold> If from the verdict the jury's finding can be reasonably ascertained, the verdict is sufficient. <bold>12. — Verdict — Intent of Jury — How Ascertained.</bold> The intent of the jury and its meaning must be ascertained from the verdict, the charge, and the pleadings. <bold>13. — Verdict — Insufficient — Possession of Beer for Sale</bold> <bold>— Dry Area.</bold> A verdict which said, "We the jury find the defendant Guilty with the possession of more beer than the law allows and assess his fine of $100.00 and cost," did not find appellant guilty of possessing beer for the purpose of sale in a dry area, and is insufficient.

<bold>Evidence — Insufficient — Presumption — Not Raised.</bold> The evidence is insufficient to support a conviction for possessing whisky for the purpose of sale in a dry area, where there was no evidence that appellant possessed such whisky for the purpose of sale, and the amount of whisky he possessed was less than the amount required to raise the presumption that he possessed such whisky for the purpose of sale.

<bold>1. — Evidence — Circumstances — When Sufficient.</bold> The circumstances proven must exclude every other reasonable hypothesis except the guilt of the defendant. <bold>2. — Evidence — Circumstantial — Insufficient.</bold> The evidence (circumstantial) is insufficient to establish the guilt of appellant.

<bold>1. — Charge — Punishment — Court's View — Error.</bold> Where court's charge, in prosecution for sale of whisky in a dry area, was calculated to lead the jury to believe that the imprisonment, if any, should be for a "term of months," error was constituted, as the jury might conclude that such language was a suggestion of the court's view of the punishment. <bold>2. — Trial Judge — Remarks — Indicating Opinion —</bold> <bold>Prohibited.</bold> The trial judge is prohibited by statute from, at any stage of the proceedings previous to the return of the verdict, making any remark calculated to convey to the jury his opinion of the case. <bold>3. — Punishment — Selling Whisky — Dry Area — No Minimum —</bold> <bold>Jail Term.</bold> The punishment for the offense of selling whisky in a dry area has no minimum jail term.

<bold>Counsel — Refusal — Warranted.</bold> In a felony case less than capital, the court was warranted in refusing to appoint counsel for accused who was shown, by the record, to be a man forty-six years of age, of ordinary intelligence, that he had a fair trial, and there was no question of his guilt.

<bold>Complaint — Unsworn To — Void.</bold> A complaint, unsworn to, or which does not show the authority of the person before whom the complaint was subscribed, is void. Intoxicating Liquor.

<bold>1. — Continuance — No Question Raised — Absent Statement of</bold> <bold>Facts.</bold> No question is presented in regard to a continuance, in the absence of a statement of facts. <bold>2. — Punishment — Jury's Province.</bold> Punishment is a matter exclusively within the province of the jury, and unless there is an error of law or insufficient evidence the case will be affirmed. <bold>3. — Evidence — Sufficient.</bold> The evidence was sufficient to warrant the conviction and the punishment.

<bold>1. — Complaint — Practicing Cosmetology — Insufficient.</bold> A complaint that one practiced cosmetology, but which does not name the person practiced upon nor the acts performed, is insufficient. <bold>2. — Complaint — Failure to Allege Acts — Insufficient.</bold> A complaint for unlawfully practicing cosmetology, which does not give notice to the accused of the acts charged against him, is insufficient.<page_number>Page 272</page_number>

<bold>Evidence — Conviction and Penalty — Justified.</bold> The evidence is sufficient to justify the conviction for assault with intent to rape and the penalty assessed.

<bold>1. — Judgment — Lack of Certainty — Void.</bold> A judgment against appellant, accused of assault with intent to rape, which assesses the punishment at confinement in the penitentiary for a period of "2 to 10 years" is void for want of certainty.<page_number>Page 274</page_number> <bold>2. — Jury Waiver — Written Consent — State's Attorney —</bold> <bold>Prerequisite.</bold> The filing of the written consent of the attorney for the state to the waiver of a jury is a prerequisite to a trial without a jury in a felony case.

<bold>Information — Fatally Defective.</bold> An information which does not allege that the offense was committed before the information was filed is fatally defective.

<bold>1. — Bill of Exceptions — Argument — Deficient.</bold> A bill of exceptions, complaining of argument, is deficient when it does not show that such argument was reasonably pertinent to any issue in the case. <bold>2. — Argument — Based on Testimony — Permissible.</bold> Argument of county attorney, correctly reciting uncontroverted testimony, is not erroneous. <bold>3. — Punishment — Prescribed By Law.</bold> The punishment being prescribed by law the court has no authority to to change it. <center> ON MOTION FOR REHEARING.</center><bold>4. — Judgment — Punishment — Failure to Specify — Void.</bold> A judgment which does not comply with the statute by specifying the punishment assessed is void and no judgment at all. <bold>5. — Judgment — Power to Reform — Not Power to Enter.</bold> The power to reform a judgment does not carry with it the power to enter a judgment. <bold>6. — Judgment — Entry — Trial Court Only.</bold> Only the trial court can enter a judgment.

<bold>1. — Jury — Peremptory Challenges — Joint Trials.</bold> Defendants, tried jointly are each entitled, in the selection of the jury, to five peremptory challenges. <bold>2. — Prior Convictions — Enhancement of Punishment —</bold> <bold>Restricted to Allegations.</bold> Only the prior convictions, pleaded, or alleged in the indictment, were available to the state for the purpose of enhancing the punishment, and any other convictions should have been limited in the court's charge to the credibility of the appellant as a witness. <bold>3. — Charge — Habitual Criminal — Previous Offenses — Not</bold> <bold>Alleged — Erroneous.</bold> The court's charge was erroneous where it authorized the jury to find appellant guilty as an habitual criminal upon a finding that he committed the offenses charged and had been three times previously convicted of a felony, one or all of which were not alleged in the indictment.<page_number>Page 308</page_number> <bold>4. — Verdict — May Be Corrected — By Court — Not Rendered.</bold> The trial court has the power to correct an informal verdict with the consent of the jury, but on a plea of not guilty cannot render a verdict or any part thereof. <bold>5. — Jury Finding — Essential — To Judgment.</bold> The finding of the jury as to appellant's former convictions was essential to the validity of a judgment assessing a life term against him. <bold>6. — Verdict — Court Cannot Add To.</bold> The court was without authority to add to the verdict a finding that appellant had been three times convicted of a felony. ~<bold>7. — Legal Rights — Court's Duty — To Protect.</bold> Appellant's legal rights should have been protected on the trial either by the judge or by an attorney appointed by him. <bold>8. — New Trial — Hearing of Motion — Errors Pointed Out —</bold> <bold>Should Be Granted.</bold> Appellant's motion for a new trial should have been granted, where it appeared, on the hearing, that appellant had an attorney who was absent from the trial without fault of appellant, and where the errors complained of were pointed out at such hearing. <bold>9. — Convict — Trial According To Law — Entitled To.</bold> The fact that appellant is a convict, serving sentence on many convictions, does not militate against his right to have a trial according to law and to have a jury pass on his guilt or innocence as well as whether or not he has been convicted of prior offenses.

<bold>1. — Jury — Peremptory Challenges — Joint Trials.</bold> Defendants, tried jointly, are each entitled, in the selection of the jury, to five peremptory challenges. <bold>2. — Prior Convictions — Enhancement of Punishment —</bold> <bold>Restricted to Allegations.</bold> Only the prior convictions, pleaded, or alleged in the indictment, were available to the state for the purpose of enhancing the punishment, and any other convictions should have been limited in the court's charge to the credibility of the appellant as a witness. <bold>3. — Charge — Habitual Criminal — previous Offenses — Not</bold> <bold>Alleged — Erroneous.</bold> The court's charge was erroneous where it authorized the jury to find appellant guilty as an habitual criminal upon a finding that he committed the offense charged and had been three times previously convicted of a felony, one or all of which were not alleged in the indictment. <bold>4. — Verdict — May Be Corrected — By Court — Not Rendered.</bold> The trial court has the power to correct an informal verdict with the consent of the jury, but on a plea of not guilty cannot render a verdict or any part thereof. <bold>5. — Jury Finding — Essential — To Judgment.</bold> The finding of the jury as to appellant's former convictions was essential to the validity of a judgment assessing a life term against him. <bold>6. — Verdict — Court Cannot Add To.</bold> The court was without authority to add to the verdict a finding that appellant had been three times convicted of a felony. <bold>7. — Legal Rights — Court's Duty — To Protect.</bold> Appellant's legal rights should have been protected on the trial either by the judge or by an attorney appointed by him. <bold>8. — New Trial — Hearing of Motion — Errors Pointed Out —</bold> <bold>Should Be Granted.</bold> Appellant's motion for a new trial should have been granted, where it<page_number>Page 314</page_number> appeared, on the hearing, that appellant had an attorney who was absent from the trial without fault of appellant, and where the errors complained of were pointed out at such hearing. <bold>9. — Convict — Trial According To Law — Entitled To.</bold> The fact that appellant is a convict, serving sentence on many convictions, does not militate against his right to have a trial according to law and to have a jury pass on his guilt or innocence as well as whether or not he has been convicted of prior offenses.

<bold>1. — Indictment — Sufficient — Substitute Word.</bold> Where a word not in the statute is substituted for one that is, the indictment is sufficient if the word, thus substituted, is equivalent to the word used in the statute, or is of a more extensive signification than the statutory word and includes it. <bold>2. — Evidence — Prima Facie Case — Established.</bold> Testimony of chemist that meat examined, and shown to have been sold by appellant, contained sulphite in a substantial quantity, established a prima facie case for the state. <bold>3. — Bill of Exceptions — Evidence Excluded — Hearsay — Not</bold> <bold>Error.</bold> Where the bill of exceptions shows that the testimony excluded was hearsay error is not shown because the excluded testimony was not admissible. <center> ON MOTION FOR REHEARING.</center><bold>4. — Sulphite — Added — Meat.</bold> If meat contains sulphite, then sulphite has been added to the meat. <bold>5. — Sulphite — Meat Containing — Selling — Proof of</bold> <bold>Knowledge — Unnecessary.</bold> Under the express provisions of Art. 719 P. C., it was not necessary for the state to prove that the act of selling food to which sulphite has been added was knowingly done.<page_number>Page 317</page_number> <bold>6. — Sulphite — Lack of Knowledge — Defense.</bold> Lack of knowledge that meat sold contained sulphite is a defense and when raised by the evidence should be submitted to the jury.

<bold>1. — Bill of Exceptions — Qualification — Accepted —</bold> <bold>Binding.</bold> The court's qualification of appellant's bill of exceptions as to purported argument of the district attorney, when accepted by appellant, became binding on him. <bold>2. — Witness — Opinion — Expert — Qualified.</bold> An undertaker who examined the body of the deceased, and was a graduate of an embalming school with experience covering several years in handling dead bodies, many of which had been subjected to extreme violence, was qualified to give his opinion as to the cause of the death of the deceased.

<bold>1. — Evidence — Sufficient.</bold> The evidence is sufficient to sustain the conviction for drunken driving. <bold>2. — Evidence — Conduct — Manner — Admissible.</bold> Testimony of officer that he had accused to walk, and that he could tell by his walk that accused was drunk, was not inadmissible on the ground that accused was compelled to produce evidence against himself. <bold>3. — Evidence — Admissible — Drunken Driving.</bold> Testimony of witness that he saw a blue Mercury car driven recklessly, and that it hit a truck and tore off a door and stop in front of a funeral home, but that he did not know whether accused was driving the Mercury or not, was admissible when it had been shown that the officer stopped accused in such a car at the place testified to by the witness.

<bold>1. — Verdict — Properly Received.</bold> A verdict of the jury, which was arrived at after court had recessed for the day and the judge had gone home, and such verdict was handed by the foreman to the county attorney who delivered it to the judge the next morning, who read it to the jury and then polled the jury asking each juror if it was his verdict, was properly received and entered. <bold>2. — Continuance — For Impeaching Testimony — Properly</bold> <bold>Refused.</bold> A continuance, based on testimony sought to be secured and which would be available only to impeach a witness who is to testify, should ordinarily be refused.

<bold>Indeterminate Sentence — Statutory Requirements.</bold> The indeterminate sentence law specifically provides that the sentence recite the minimum punishment fixed by the statute and the maximum punishment assessed by the court or jury.

<bold>1. — Habitual Offender — Statute Construed.</bold> To constitute one an habitual offender, Art. 63 P. C. requires only that the accused shall have been convicted three times of a felony less than capital. The nature or character of the previous felony charges is not material. <bold>2. — Prior Convictions — Averments — Particularity.</bold> It is not necessary in charging prior convictions for the purpose of enhancing the punishment that they be averred with the same particularity as is required in charging the commission of the offense. <bold>3. — Indictment — Prior Convictions — Allegations</bold> <bold>Sufficient.</bold> Where, for the purpose of enhancing the punishment, the indictment alleged, in substance, that appellant was on the 26th day of November, 1945, convicted, in Cause No. 11599, in the district court of Williamson County, of the "felony of felony theft," the allegations were sufficient.

<bold>1. — Premises — Description — Sufficient.</bold> A description of the premises to be searched, written in the affidavit and in the search warrant as "a certain private dwelling, located in Lamar County, Texas, described as a tourist cabin, the same being No. 27 at Lamar Courts in the City of Paris, Lamar County, Texas," is sufficient. <bold>2. — Evidence — Res Gestae — Statement Admissible.</bold> Statement by appellant, as he entered the cabin where the whisky was located, to the effect that he claimed the whisky, was a part of the res gestae and admissible in evidence. <center> ON MOTION FOR REHEARING.</center><bold>3. — Evidence — Res Gestae — Arrest Immaterial.</bold> If testimony is admissible as a part of the res gestae, it is immaterial whether the accused was under arrest or not.

<bold>1. — Offenses — Whether of Like Character — Question of Law.</bold> Whether possessing liquor for the purpose of sale in a dry area is a like offense or an offense of the same character as the offense of selling beer during prohibited hours on Sunday was a question of law for the court. <bold>2. — Offenses — Unlike Character.</bold> Possessing liquor for the purpose of sale in a dry area is not an offense of like character as selling beer on Sunday during prohibited or restricted hours. <bold>3. — Offenses — Not Same or Like — Not Used for Enhancement</bold> <bold>of Punishment.</bold> A previous conviction for possessing liquor for the purpose of sale in a dry area could not be used to enhance the punishment on conviction for selling beer in a wet area during restricted hours because not of the same or like character. <bold>4. — Evidence — Moral Turpitude — Not Involved — Not Used</bold> <bold>for Impeachment.</bold> Proof of conviction for possessing liquor in a dry area for the purpose of sale cannot be used for impeachment purposes as it does not involve moral turpitude.<page_number>Page 393</page_number> <bold>5. — Same Offense — Defined.</bold> The words "the same offense" as used in Art. 61 P. C. means an offense of like character.

<bold>1. — Evidence — Sufficient.</bold> The evidence is sufficient to sustain the conviction for assault with intent to murder. <bold>2. — New Trial — Overruling Motion — No Bills of Exception.</bold> In the absence of bills of exception in the record, the appellate court cannot consider alleged error in overruling appellant's motion for a new trial. <center> ON MOTION FOR REHEARING.</center><bold>3. — Laws — Legislative Province — Courts Cannot Change.</bold> The legislature makes the laws known as The Code of Criminal Procedure, and the courts have no authority to change them.

<bold>Jurisdiction — Court of Criminal Appeals — Not Obtained —</bold> <bold>Appeal Bond — Filed — During Term.</bold> The court of criminal appeals does not obtain jurisdiction where an appeal bond is resorted to before the adjournment of the term of the court at which the judgment of conviction was rendered.<page_number>Page 451</page_number>

<bold>1. — Indictment — Allegations — Unnecessary Matters —</bold> <bold>Surplusage.</bold> Unnecessary matters alleged in the indictment which are not descriptive of the offense can be treated as surplusage. <bold>2. — Offense — Location of Place.</bold> The words "128 West Sixth Street, City of Plainview," is descriptive of the location of the Hilton Hotel alleged to be located there and not of an offense committed on the premises of the hotel. <bold>3. — Complaint — Evidence — No Variance.</bold> Where the complaint alleged that the offense was committed on the premises of the Hilton Hotel, 128 West Sixth Street, City of Plainview, Hale County, and the proof showed the commission of the offense at the Hilton Hotel, Plainview, Hale County, it was unnecessary to prove that the Hilton Hotel was located at 128 West Sixth Street, Plainview, Hale County.

<bold>1. — Evidence — Circumstantial — Sufficient.</bold> The evidence, although circumstantial, is sufficient to sustain the verdict. <bold>2. — Error — Certified By Court — Case Reversed.</bold> Where court certified by his qualification of appellant's bill of exception, relative to his motion for a continuance, that "defendant was denied a fair and impartial trial," the judgment will be reversed.<page_number>Page 484</page_number> <bold>3. — Bill of Exceptions — Qualified — Exception to</bold> <bold>Qualification — Effect.</bold> Where appellant excepted to the court's qualification of his bill, and the court did not thereafter file his own bill, the bill must be considered as approved.

<bold>Habeas Corpus — Judgment — Corrected — Prior to Application</bold> <bold>— Denied.</bold> Where it appears that an erroneous judgment entered upon a proper verdict had been corrected prior to the presentation of an application for a writ of habeas corpus, the writ will be denied.

<bold>1. — Commutation Time — Must Be Earned.</bold> Commutation time for good conduct must be earned by the convict by his good conduct, industry, and obedience, and the provisions of the statute must be complied with in order to obtain the benefits accorded thereby. <bold>2. — Commutation Statute — Construed.</bold> The commutation statute is construed to mean that benefits extended thereby are to prisoners actually confined in the penitentiary of this state and not to prisoners in constructive custody but actually confined in the federal penitentiary.

<bold>1. — Counsel — Lack of — Unsupported.</bold> Where record shows that relator "appeared in person, his counsel also being present, and both parties announced ready for trial," contention that relator was tried without counsel is unsupported by facts. <bold>2. — Judgment — Punishment — Definite.</bold> Where the judgment assessed relator's punishment, in each case, at a term of twelve years in the state penitentiary, it was not void for indefiniteness as to punishment.

<bold>1. — Jurisdiction — Judgment — Record Must Show.</bold> Unless the record contains a copy of the judgment, the court of criminal appeals is without jurisdiction. <center> ON MOTION FOR REHEARING.</center><bold>2. — Evidence — Dry Status — Insufficient.</bold> Where the minutes of the commissioners' court, showing the county to be dry, were not introduced in evidence, there was no proof of the dry status of the area.

<bold>1. — Evidence — Fact — Belief — Does Not Establish.</bold> Testimony that a witness believes a fact is true is not sufficient to establish such fact. <bold>2. — Allegation — Must Be Proven.</bold> Where the state alleges the highway upon which the transportation of liquor was had, it is not necessary to make proof of such allegation. <bold>3. — Own Consumption — Others — Not Included.</bold> The phrase "own consumption," as used in the liquor laws, will not be construed to mean "as an accommodation to others."

<bold>1. — Statute — Repealed — Penalty Not Substituted — Effect.</bold> The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute. <bold>2. — Statute — Repealed — Penalty Substituted — Effect.</bold> When by the provisions of a repealing statute a new penalty is substituted for an offense punishable under the law repealed, such repealing statute shall not exempt from punishment a person who offended against the repealed law while it was in force, but in such case the rule prescribed in Art. 13 (P. C.) shall govern. <bold>3. — Offense — Definition Changed — Effect.</bold> If an offense be defined by one law and by a subsequent law the definition of the offense is changed, no such change shall take effect as to offenses already committed; but one accused of violating the first law shall be tried under that law. (Art. 16 P. C.) <bold>4. — Meat — Certain Animals — Sale for Food — Unlawful.</bold> It is unlawful to sell for food for human consumption meat from the carcass of horses, dogs, mules, donkeys, cats or other animals not normally used for human food. <bold>5. — Charge — Circumstantial Evidence — Not Required.</bold> A charge on circumstantial evidence is not required when there is direct evidence of the offense. <center> ON APPELLANT'S MOTION FOR REHEARING.<page_number>Page 550</page_number></center><bold>6. — Variance — Allegations — Proof.</bold> Where the indictment alleged that the meat was sold for human consumption, and the proof showed it was bought and sold for the purpose of a laboratory examination, there was a variance.

<bold>1. — Evidence — Drinking Wine — Too Remote.</bold> The fact that witness had drunk wine some four or five hours before the time of the tragedy was inadmissible as being too remote to affect the credibility of the witness. <bold>2. — Evidence — Cross-Examination — Drunkenness —</bold> <bold>Admissible — When.</bold> Where appellant had requested a suspended sentence and had testified that he had paid several fines for drunkenness, the state should have the privilege of cross-examining appellant and his character witnesses regarding specific acts of drunkenness, as touching appellant's reputation for being peaceable and law-abiding. <bold>3. — Drunkenness — Moral Turpitude — Not Involved.</bold> Previous drunkenness is not an offense involving moral turpitude and ordinarily is not material in so far as a request for a suspended sentence is concerned. <bold>4. — Charge — Retrieving Stolen Property — Not Required.</bold> Where there was no evidence that appellant in approaching deceased was trying to retrieve stolen property, and the court gave an unlimited charge on self-defense, court was not required to charge on the right to go armed and seek to retrieve stolen property. <bold>5. — Charge — Retrieving Stolen Property — Not Authorized.</bold> Where the evidence did not raise the purpose and intent on part of appellant to recover stolen property, the court was not required to charge on the right to go armed and seek to retrieve stolen property. <bold>6. — Sentence — Indeterminate Sentence — Omitted —</bold> <bold>Reformed.</bold> Where the sentence fails to embody the indeterminate sentence law, it will be reformed on appeal to embody such clause.

<bold>1. — Evidence — Complained of — Admissible.</bold> Bills of exception, complaining of question and answer when witness was asked "for what purpose" he came to Floyd County, and he replied that the sheriff of that county had asked him to try to catch some bootleggers, show no error. <bold>2. — Evidence — Res Gestae — Admissible.</bold> Where liquor inspector testified he told appellant he wanted to get "another pint of whisky," such testimony was not objectionable as showing another and different offense but was admissible as a part of the res gestae.

<bold>1. — Article 63 P. C. — Construed.</bold> In order to enhance the punishment under Art. 63 P. C. (the habitual criminal act), a felony conviction in another jurisdiction must be for an offense denounced as a felony by the laws of Texas. <bold>2. — Statute — Interpretation — Legislature — Failing to</bold> <bold>Change Law — Effect.</bold> Where the court has expressed its interpretation of a statute, and the legislature with notice of such view does not see fit to change the law, it can well be concluded that the legislature endorses the construction and interpretation of the court.

<bold>1. — Evidence — No Significance — Not Reversible Error.</bold> Question and answer having no significance one way or the other do not constitute reversible error. <bold>2. — Evidence — Res Gestae — Admissible.</bold> Evidence of officer that he received a radio call to go to the scene of the killing; that he arrived there in about three minutes and found deceased lying by a truck and appellant standing in the street; that appellant ran over to him and said "I done it. I killed him.". . . I told him I would kill him and I did" and when the officer inquired "Killed who?" she told him who it was, was admissible as a res gestae statement of the transaction. <bold>3. — Evidence — Exclusion — Later Admitted — Not Error.</bold> Exclusion of testimony later given by the same witness and others is not reversible error. <bold>4. — Bill of Exceptions — Question — No Answer — No Error.</bold> Where bill of exceptions shows upon its face that no answer was made to the question, error is not shown. <bold>5. — Evidence — Hearsay — Uncommunicated Threat —</bold> <bold>Inadmissible.</bold> Exclusion of testimony of witness to the effect that witness had told accused while in jail "if you hadn't killed him, he would have killed you," was correct. <bold>6. — Self-Defense — Jury Question.</bold> Appellant's claim of self-defense was for the jury's determination.

<bold>1. — Evidence — Fact Issue — For Trial Court.</bold> Where there was a conflict as to whether relator was in demanding state or in another on the date of the alleged offense, the disputed fact issue was for the trial court. <center> ON MOTION FOR REHEARING.</center><bold>2. — Bail — Order Fixing — Not Final Disposition.</bold> Order admitting relator to bail and ordering his release from custody on furnishing such bail was not a final disposition of the case.

<bold>1. — Evidence — Sufficient.</bold> The facts shown are sufficient to sustain the conviction. <bold>2. — Intent — Specific — Not Shown.</bold> The specific intent to kill is an essential element of the offense of assault with intent to murder, which intent may be inferred when the instrument used in committing the assault is a deadly weapon, or if the weapon is not deadly the intent may be shown from the surrounding facts and circumstances. <center> ON MOTION FOR REHEARING.</center><bold>3. — Intent to Kill — Finding Supported.</bold> The testimony of the attending physician as to the seriousness of the wound and that it was sufficient to produce death supports the jury's finding of an intent to kill.

<bold>1. — Variance — Allegation — Proof.</bold> Where appellant's confession, introduced and relied on by the state, showed the intent in breaking and entering the house was burglary, and the indictment alleged the intent to commit rape, there was a fatal variance.<page_number>Page 625</page_number> <bold>2. — Intent — Burglary — Must Exist — Entry.</bold> The intent to commit the felony or crime of theft, essentially necessary to constitute the crime of burglary, must exist at the time of entry. <bold>3. — Intent — Formed After Entry.</bold> If the intent to commit the crime of rape was formed after the entry by appellant, the crime of burglary is not shown.

<bold>Indictment — Sufficient.</bold> In a prosecution for robbery with firearms, the allegation in the indictment as to the ownership of the property taken and its appropriation by the taker "the same being the property of the said Noel Holiman, with the intent to deprive the said Noel Holiman of the same, and to appropriate the same to his own use and benefit," is sufficient as the phrase "appropriate the same to his own use and benefit," must be construed to mean the taker (appellant) and not the injured party.

<bold>1. — Statement of Facts — Filed — Trial Court.</bold> The statement of facts, in order to be considered, must be filed in the trial court. <bold>2. — Bills of Exception — Not Considered — Without Statement</bold> <bold>of Facts.</bold> In the absence of a statement of facts, the bills of exception appearing in the record cannot be considered. <center> ON MOTION FOR REHEARING.</center><bold>3. — Evidence — Admissible — Question by the Court.</bold> Question asked by the court, but which appellant refused to answer, concerning whether appellant had on a previous occasion been granted a continuance because of the absence of a certain witness whom appellant claimed was driving the car at the time the officers claimed appellant was driving it, was admissible for whatever it was worth. <bold>4. — Argument — Objection Sustained — No Error Shown.</bold> Objection to argument which was sustained by the court, where no written charge was requested, does not present reversible error. <bold>5. — Reversal — Not Demanded — By Every Error.</bold> It is not every conceivable error that demands a reversal of a case. <bold>6. — Bill of Exceptions — Deficient — When.</bold> Where bill of exceptions fails to show that the argument complained of was not based on the facts in evidence it is deficient.