he carried the stick with him until he fell; that Pel and Wayne Herring followed their brother (the deceased), Pel still carrying the hoe. against his life. This, perhaps, is a sufficient statement of the case to review the questions presented. 1. The first question for review is that, There is evidence, also, on the part of after six of the jurors had been impaneled the defense, that the deceased got the stick and sworn, they were permitted to separate. at the barn; that it was the stick describ- In this connection it is shown that this seped above, and had been used on a cow and aration was by agreement of appellant. so fastened as to prevent her from suck- Without going into a statement in respect ing herself. It is further testified for the to these matters, it may be stated that the defense that after deceased picked up the jury separated with the consent of the apstick he never threw it down any more until pellant, and that he further agreed that after he was shot, and that he dropped it they might separate, unaccompanied by an when he fell after being shot. The wife of officer. The facts further show that this the deceased and sister of appellant tes- was done rather at the request of the court; tified: That she was in her house in the that is, the appellant was asked, in the presroom with her mother-in-law, and that she ence of the six jurors, if he was willing for looked out of the window and saw the them to separate and go home without being smoke of the pistol. That at this point in charge of an officer. Appellant agreed she saw her father and brother and her hus- to this, but turned to his counsel and reband. That about the time the firing ceas-marked, "That does not look right." His ed she saw her husband running towards counsel said, "What else can you do?" their residence with a large stick in his There seems to be no contradiction as to hand. That she did not wait to see deceas- the manner of separation and what occured fall, but turned to her mother-in-law, red at the time. This was error. Article and said, "They are having a racket out there." That thereupon her mother-in-law went out of the building on the opposite side from where the shooting occurred, saying that she would go and bring her boys to the house. Mrs. J. M. Gant (mother of appellant) testified that she heard the shots from her house, which was in sight of the lot; that she heard the report of the pistol, and saw the smoke and Lige Herring retreating, but as there were some obstacles in her way she could not see anything but the upper part of his body, nor could she see what he had in his hand. There is considerable testimony pro and con as to whether the deceased had the stick in his hand at the time he was shot or not; the state's theory being that the stick was placed near the body after he fell. The testimony for the defense shows that he had the stick in his hand at the time that he was shot, as well as prior thereto, and retained possession of it until he fell. All the testimony shows that the stick was right at the body, in a few inches of appellant's right hand, and that a hoe was found a few feet from the body of the deceased. There is testimony, also, from witnesses to the effect that the deceased had threatened to take the life of appellant and his (deceased's) father-in-law. The jury returned a verdict of murder in the second degree, giving appellant 30 years' confinement in the pentitentiary. There is evidence tending to show murder, manslaughter, and selfdefense; appellant's contention being, which be sustained by his evidence, that he shot in defense of his life by reason of the threatened attack upon him by the deceased with the stick above described, reinforced by his two brothers, Pel and Harle Herring, one of whom had a hoe approaching him in a 680, Code Cr. Proc. 1895, is as follows: "The court may adjourn persons summoned as jurors in a capital case to any day of the term; but, when jurors have been sworn in a case, those who have been so sworn shall be kept together and not permitted to separate until a verdict has been rendered, or the jury finally discharged, unless by permission of the court, with the consent of the state and the defendant, and in charge of an officer." Also article 725 of Code Cr. Proc. 1895, thus reads: "After the jury has been sworn and impaneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the state, and the defendant, and in charge of an officer." In McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 496, it was held that while, by express provision of article 22 of the Code of Criminal Procedure of 1895 a defendant in a criminal case may waive any right secured him by the law, except the right of trial by jury in a felony case, still he cannot agree to the separation of the jury in such case without the jury being in charge of an officer. He cannot, by his waiver, do that which the statute emphatically prohibits. It has also been held, construing this statute, that, when the separation of the jury occurs by the consent of the accused, every juror shall be under the protection and control of an officer, so that no communication may be had with any person in any way touching the cause on trial. Brown v. State, 38 Tex. 482; Porter v. State, 1 Tex. App. 394; Grissom v. State, 4 Tex. App. 374; English v. State, 28 Tex. App. 500, 13 S. W. 775; Wright v. State, 17 Tex. App. 152; Robinson v. State, 30 Tex. App. 459, 17 S. W. 1082; Early v. Neal v. State, 50 Tex. Cr. R. 583, 99 S. W. | sary to further review the Cole Case. It is 1012. 2. The misconduct of the jury is urged for reversal. During the trial the jurors were taken to an open air theater, and the evidence in regard to this matter rather pertinently shows that they were seated and mingled with the audience attending the theater, and that they were accessible to any person who may have desired to approach them. Without deciding whether this would be reversible error or not, we desire to say that this character of conduct should not be permitted in the trial of cases. There is rather a strong intimation in the record that visiting the theater by jurors had become sort of a custom and habit during the trial of cases. This ought not to be done. This character of conduct on the part of jurors has been criticised in quite a number of decisions. 3. When the wife of deceased, who was not authority here, and does not present the same question. The authorities are very clear, so far as we have been able to discover, that usually communications from the husband to the wife in the presence of others are not privileged. In support of this we might cite Gannon v. People, 127 Ill. 507, 21 N. E. 525, 11 Am. St. Rep. 147; Fay v. Guynon, 131 Mass. 31; Allison v. Barrow, 3 Cold. (Tenn.) 414, 91 Am. Dec. 291; State v. Gray, 55 Kan. 135, 39 Pac. 1050. It has also been held, so far as we have been able to examine the question, that a conversation between the husband and wife might be testified to by a concealed listener, the mere fact that they did so intend will not the sister of appellant was testifying, she was asked by appellant the following question: "Did you or not ever hear any threats made by the deceased, Lige Herring, your husband, in regard to his intention to kill Will Gant, the defendant, and his father, J. M. Gant?" Objection by the state was urged to this question, and the answer thereto, on the ground that any communication between the husband and wife could not be introduced in evidence, because the statute (article 774, Code Cr. Proc. 1895) prohibited it. The witness would have testified in the affirmative. Appellant contends this was not a privileged communication, such as is prohibited by the statute. We are referred to article 774 of the Code of Criminal Procedure of 1895 and Cole v. State, 51 Tex. Cr. R. 89, 101 S. W. 218. The statute referred to prohibits the introduction of confidential communications between husband and wife when either or both of them are used as witnesses. Cole's Case, referred to, does not support appellant's contention. An inspection of that case discloses that the matter testified by Mrs. Cole was in regard to communications and statements made by Mrs. Cole to her father in the presence of Cole. That case further discloses that there was a meeting between Hudson, deceased, father-in-law of Cole, and Cole and his wife, to talk over matters of trouble existing between Cole and his wife and Cole and his father-in-law, Hudson. During the conversation between the three, Mrs. Cole made statements of matters occurring between herself and her husband. On the wit-529, 530; Brown v. Wood, 121 Mass. 137; ness stand she was permitted to testify in regard to this conversation and statements made during the interview. It was held in that case that these matters were not within the statute. We have no such state of case here. The bill of exceptions discloses that. if the threats were made by the deceased against the father and brother of his wife, they were made when they were alone and Maynard v. Vinton, 59 Mich. 139, 26 N. W. 401, 60 Am. Rep. 276; Jacobs v. Hesler, 113 Mass. 157; Hitchcock v. Moore, 70 Mich. 112, 37 N. W. 914, 14 Am. St. Rep. 474; Smith v. Potter, 27 Vt. 304, 65 Am. Dec. 198; Brock v. Brock, 116 Pa. 109, 9 Atl. 486. 4. The state was permitted, over the objection of appellant, to prove by Mrs. Lettie Herring, mother of the deceased, that just as ing, en route to the barn where the tragedy The evidence of appellant is to the effect that occurred, he told her to hurry up supper, so they could make ice cream after supper. We are of opinion this testimony was inadmissible, under the authority of Brumley v. State, 21 Tex. App. 222, 17 S. W. 140, 57 Am. Rep. 612, Johnson v. State, 22 Tex. App. 206, 2 S. W. 609, and quite a lot of other decisions of this court. one of them was armed with a hoe, and that brother was threatening to cut off the head of appellant; that the other brother was reaching to the ground for some instrument to use, and was threatening the life of both appellant and his father. The theory of selfdefense, as well as manslaughter, was submitted only from the standpoint of aggression on the part of the deceased. We are of opinion that the evidence sufficiently brings the two brothers of the deceased in close enough proximity to require the court to submit the law applicable to manslaughter and self-defense from those standpoints. 7. The charge in regard to threats was rather vague and indefinite. Upon another trial it will be well enough, in submitting this phase of the law, to give a clear and pertinent statement of it to the jury. 8. Error is also urged against the charge in that portion of it in which the court instructed the jury that appellant's right of self-defense would be in no way compromised or abridged by the fact that he armed himself with a pistol and went to the barn to demand an explanation in regard to his mail, or any other lawful purpose. It is contended that this charge is too restrictive, and places appellant's right to go to the barn upon too narrow a plane and upon a false basis. Unquestionably appellant had the right to go to the barn to attend to his stock, or for any other purpose he saw proper, except, in this case, to bring on a difficulty with the deceas 5. Quite a number of exceptions are reserved to the charge of the court, some of which, we are of opinion, are well taken. In regard to the charge on manslaughter, the court presented it in a general way, to the effect that any state or condition of circumstances which would render the mind incapable of cool reflection, if followed by sudden passion, would reduce it to manslaughter. Then follows a closer application of the law, in which the court singled out the one fact of the deceased inviting appellant out of the barn to fight, and appellant going out, or qualifyingly accepting the challenge. It is contended that the court, by selecting this one isolated circumstance in the case, submitted the issue of manslaughter upon false theories, or, at least, a misleading idea. We are of opinion that this contention is correct. An inspection of the record shows that this was a very seriously controverted question, and it is further shown that the deceased went out of the gate to get his hat, retaining the large stick, and, when appellant went to the gate to shut it, deceased approached it in a threatening manner, with the purpose in view of striking appellant with the bludgeon, and that appel-ed, and in fact it would make no difference lant ordered him to stop two or three times, what his purpose was in going to the barn, and retreated; that the two brothers of de- unless he did some act, or uttered some word, ceased were approaching-one armed with a or did something, that provoked the difficulty hoe, and the other was reaching to the ground with the deceased, or that he thereby intendas if to get a rock or some instrument. Ap-ed to provoke a difficulty with him. The mere pellant's testimony further goes to eliminate fact that he went to the barn with an unlawany question of challenge or acceptance of | ful purpose would not make him guilty, unchallenge. Where a court undertakes to se- less that purpose was accompanied by some lect and cull facts from the record, and specifically point them put in a charge, and submit them as a basis for manslaughter, as in this case, sufficient of the facts should be stated, so as to present fully and fairly the issue of manslaughter from any standpoint made by the facts or deducible from the testimony. The evidence discloses that there might be several matters of fact presenting the issue of manslaughter, besides the single one of the appellant going out in accordance with the invitation of the deceased to fight bim. act or word that brought about the difficulty or induced the deceased to engage in a difficulty. Unlawful intent is not sufficient, unless accompanied by some act or word which provoked the difficulty. For the errors indicated, the judgment is reversed, and the cause is remanded. FLOWERS v. STATE. (Court of Criminal Appeals of Texas. Feb. 24, CRIMINAL LAW (§ 1090*)-APPEAL-INSUFFI- Where the motion for new trial complains of the insufficiency of the evidence, and there is facts in the record, nothing therein authorizes neither a bill of exceptions nor a statement of a review. 6. It is also urged that the charge is wrong in not submitting the issue of manslaughter and self-defense both from the standpoint of three assailants, or, at least, more assailants than the deceased. We are of opinion that this contention of appellant is correct. All the evidence shows that two of the brothers of the deceased were approaching the scene of the difficulty at the time of the homicide. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1090.*] Appeal from Criminal District Court, Dallas County; W. W. Nelms, Judge. He reserved a bill of exceptions which recites that the court erred in admitting the Anthony Flowers was convicted of bur- evidence of T. A. Meddings and Will Boll glary, and he appeals. Affirmed. in rebuttal, which was for the purpose of F. J. McCord, Asst. Atty. Gen., for the contradicting the evidence of defendant's State. BROOKS, J. Appellant was convicted for burglary, and his punishment assessed at two years' confinement in the state penitentiary. We find neither bill of exceptions nor statement of the facts in the record. The motion for new trial complains of the insufficiency of the evidence. This being the shape of the record, there is nothing in the same that authorizes a review. The judgment is accordingly affirmed. CONLEY v. STATE. witnesses. The reasons urged are that these witnesses were in a place where they could see and hear the proceedings and evidence of defendant's witnesses when they testified; that the door of the witness room was wide open, and Meddings had his head in the door; that the witness Boll passed through the courtroom several times, unaccompanied by an officer, during the examination of the defendant and his witnesses, although the Irule had been invoked. The court approved the bill, with this qualification: That the above witnesses stated they did not hear any of the testimony of defendant's witnesses. The enforcement of the rule, if in fact it was invoked in this case, is to some (Court of Criminal Appeals of Texas. Feb. 24, extent discretionary with the trial court, and 1909.) 1. CRIMINAL LAW (§ 665*)-RECEPTION OF EVIDENCE-EXCLUSION OF WITNESSES-VIOLATION OF RULE. That witnesses who had violated the rule were permitted to testify in rebuttal and contradict evidence of defendant's witnesses was not an abuse of discretion or ground for reversal, where the witnesses stated that they did not hear any of the testimony of defendant's witnesses. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1549-15662; Dec. Dig. § 665.*] 2. INFANTS (§ 69*) - PUNISHMENT AGE. PLACE in order to require a reversal for its breach some injury must be shown. As this bill presents the matter, we are of opinion that no injury is shown, or such as would require a reversal. In the motion for new trial it is urged that the court should have given a charge in regard to the age of defendant, to the effect that if the jury should find that, at the time of the commission of the crime alleged, the defendant was under the age of 16, his punishment should be in the reformatory, and not in the penitentiary. The mother of appellant testified at the time of the trial he was nearly 17 years old, that his birthday was the 26th of March, and that he was 16 years of age the March previous to the time she was testifying. The trial was had on 3. CRIMINAL LAW (§ 1035*)-APPEAL-RESER- the 18th of November, after appellant was VATION OF GROUNDS-OBJECTIONS-COMPE- 16 on the 26th of the previous March. Under TENCY OF JUROR-NEW TRIAL. The place of punishment of a minor delinquent is determined by his age at the time of the trial, and not when the crime was committed. [Ed. Note.-For other cases, see Infants, Dec. Dig. § 69.*] Where no challenge was made to a juror, and no exception reserved on the ground that he was disqualified by having served for more than 20 days during the preceding 6 months, the question could not be raised by a statement in the motion for a new trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2636; Dec. Dig. § 1035.*] 4. BURGLARY (§ 41*)-EVIDENCE. In a prosecution for burglary, evidence held to sustain a conviction. [Ed. Note. For other cases, see Burglary, Dec. Dig. § 41.*] this testimony the court did not err in failing to charge in regard to appellant's age, with a view of assessing his punishment in the reformatory. Punishment in the reformatory is governed by the age of the indicted party at the time of the trial. Finnigan served as a juror in the case. As one of the grounds of the motion for new trial, appellant urges that this juror was disqualified by reason of the fact that he had served for more than 20 days during the preceding 6 months. There was no challenge Appeal from Criminal District Court, Dal- to this juror, and no exception reserved. las County; W. W. Nelms, Judge. Will Conley, alias Double Joint, was convicted of burglary, and he appeals. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State. The whole matter is based simply on a statement in the motion for new trial. The question cannot be raised for revision in this manner. It is urged, also, that the evidence is insufficient. The state made out a very strong DAVIDSON, P. J. Appellant was convict- case. The witnesses Meddings and Boll ed of burglary; his punishment being as- found defendant in the alleged burglarized sessed at two years' confinement in the pen-house with others. The window had been itentiary. raised; the iron bars having been prized apart, so that their entry could be accom-lowing. She denied seeing a man get up out plished. When detected they ran out of the weeds close to the house as she went through another window and were shot at; one of them being struck by a bullet from Meddings' pistol. The judgment is affirmed. LOID v. STATE. over the fence. No one holloed at her to stop, except appellant. Nobody had been in her room that night, except appellant. Mrs. Hallbrook testified that she knew appellant and prosecutrix, Lizzie King; that Miss King came to her house at night about 1 o'clock, being the 12th of July, the same night indicated by the testimony of prosecu (Court of Criminal Appeals of Texas. Feb. 24, trix; that she knew it was about 1 o'clock 1909.) 1. ASSAULT AND BATTERY (§ 96*)—AggraVATED ASSAULT-INSTRUCTIONS. Where, in a prosecution for an assault, prosecutrix testified that defendant did not place his hand on her at any time, an instruction that if an adult male attempts to indecently handle and fondle a female against her will, and in such attempt pursues her, and in her flight to escape she is injured, and such injury is caused by the acts of the male, etc., he is guilty of an aggravated assault, was erroneous. [Ed. Note.-For other cases, see Assault and Battery, Dec. Dig. § 96.*] at night because of the fact she was giving medicine to some one who was sick in her house; that she heard appellant and Miss King talking on the gallery, but did not understand what appellant said, but heard Miss King tell appellant she would not go back to his house. Appellant carried Miss King's shoes to her the next morning about daylight. The two residences were about 200 yards apart. Appellant's wife says that prosecutrix was staying at her house during the 2. ASSAULT AND BATTERY ( 92*)-AGGRAVA-summer, in June and July; that she was TED ASSAULT EVIDENCE. Evidence held insufficient to sustain a conviction of aggravated assault on a female. [Ed. Note. For other cases, see Assault and Battery, Cent. Dig. § 137; Dec. Dig. § 92.*] Appeal from Van Zandt County Court; Jno. S. Spinks, Judge. Bill Loid was convicted of aggravated assault, and he appeals. Reversed and remanded. confined about the 1st of June, and prosecutrix came to wait on her during her sickant and herself heard some one go into proseness; that on the night of July 12th defendcutrix's room; that appellant went in there, and heard some one go out at the window of prosecutrix's room; that witness got up and went to the hall door, and saw prosecutrix go out of the window; that appellant came back in the hall and went to the back T. R. Yantis, for appellant. F. J. McCord, door; that she saw prosecutrix crawl over Asst. Atty. Gen., for the State. the fence into a "patch," and after she had gone a little distance down in "the patch" she saw a man rise up in the weeds close to the yard fence and beckon to prosecutrix to stop; that she looked around, but kept going; that the party in the weeds went off going in the direction of Mrs. Hallbrook's residence. She says her husband did not get off the gallery, and did not follow prosecutrix; that subsequently during the night, a little before day, she told appellant to take Lizzie King's shoes to her, and tell her to come and get her clothes; that she did not want her about her place any more. Appellant's testimony is practically the same as that testified by his wife, going a little more into detail. DAVIDSON, P. J. Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $50 and 30 days' confinement in the county jail. The evidence, in brief, discloses that ap-in the same direction as did prosecutrix, both pellant's wife had been sick and confined to her bed for about a month at the time of the alleged assault; that on the night of the 12th of July appellant went to the bed of Lizzie King, who had been waiting upon his wife in the capacity of nurse, and asked her to "give him some." He made this request twice. The girl declined to accede, got out of bed, went through a window, crossed a fence, and started in the direction of Mrs. Hallbrook's; appellant, following her, insisting on her returning to his house. Prosecutrix ran against a loose barbed wire, and cut her leg. Appellant followed her on to Mrs. Hallbrook's residence, and again requested her to return to his residence with him, which she declined. She says appellant was walking fast after her, and she was walking fast to keep away from him. On crossexamination she stated appellant did not put his hands on her at all-only made the request above indicated; that she went out of the window, got over the fence, and went down through a "patch," with defendant fol The court charged the jury the usual definitions of assault and assault and battery, and further instructed them that any indecent fondling or familiarity of the person of a female by an adult male against her will is an assault, and any attempt to indecently handle the person of a female by an adult male, against her will, when such attempted handling or familiarity is coupled with an ability to so handle, is an assault. He further instructed the jury that if an adult male attempts to indecently handle or fondle the person of a female against her will, and in |