not hear; that when he reached the kitchen | appellant, it declined to permit the same deceased attacked him, and he cut him to question to be propounded further for the save his life. He offered proof by one of the purpose of disqualification. The question, witnesses that deceased received part of the in substance, was an inquiry whether, money which was earned by the women in if the court instructed them that insulting the house, and also claims that his special remarks made by deceased to the wife of charge, to the effect that the jury could not appellant might reduce the grade of the of consider the character or reputation of the fense from murder to manslaughter, and it house in which the homicide took place, or appeared from the evidence that the homithe parties therein, as in any manner abridg- cide took place while the appellant and his ing the defendant's right of self-defense, but wife were living in a house of prostitution, that his right to defend against an unlawful they would try the appellant just like they attack would be the same as any other place would try any other man who was not livunder the circumstances. The harm of re- ing in a house of prostitution. The question fusing this charge, appellant insists, was emas propounded was hypothetical, a characphasized by the fact that in selecting the ter of question which it seems the court has jury a number of them were disqualified by discretion to refuse to permit in examining stating that, if it should develop that appel- jurors on their voir dire. Thompson on lant was living in a house of prostitution, it Trials, §§ 101–104, vol. 1, p. 114; Railway v. would influence them. After excusing sev- Terrell, 69 Tex. 650, 7 S. W. 670. The maneral jurors on this ground the court declined ner of examining jurors, even for the purto permit the same question to be asked furpose of peremptory challenge, is necessarily ther. We think this question would have one in which the trial court has some latibeen a proper one not for a disqualification, tude in the exercise of discretion. Cyc. vol. but as basis for a peremptory challenge. 24, p. 328. The question propounded might The bill, however, does not raise the ques- have been modified so as to elicit the infortion as to error in permitting the question, mation which appellant desired with referbut refers to it only as emphasizing the neence to the mental attitude of the jurors with cessity for the special charge mentioned. reference to the trial of appellant; and, if it The court's charge does not in any way qual- had been so modified, and the purpose of it ify appellant's right of self-defense, and is had been for the use of appellant in exercisnot complained of as doing so. Under these circumstances we do not think the court would have been entitled to the information. ing his peremptory challenges, we think he committed error in refusing the special The scope of inquiry for the purpose of obcharge, nor in rejecting the testimony mentioned. The record indicates that deceased taining information from jurors as a basis for peremptory challenge is quite broad. was interested in the house. That fact, how- This inquiry as shown by the bill, however,

ever, it seems would not bear on the issue of

self-defense, and a verdict of manslaughter
was rendered, though the facts immediately
attending the homicide as detailed by the
state's witness showed an unprovoked as-
sault by appeilant. The environments and
relation of the parties must have induced the
jury to find the lower grade of unlawful
homicide. The verdict excludes the idea of
any prejudice on the part of the jurors.
The judgment of the lower court is af-
firmed.

On Motion for Rehearing.

[7] The original opinion deals with all questions that are raised in the motion for rehearing except that involved in appellant's eleventh bill of exception. This bill relates to the question asked in selecting the jury, which was in substance like one discussed in the original opinion. We have reviewed the record in the light of the motion for rehearing, and are unable to reach a conclusion different from that therein expressed.

The eleventh bill of exception, in substance, complains that after the court, at appellant's request, had beld disqualified a number of jurors who answered in an affirmative manner a question propounded by

1. CRIMINAL LAW 1090(7)—APPEAL-QUESTIONS REVIEWABLE.

In a prosecution for murder, the refusal of a continuance will not be reviewed in the absence of a bill of exceptions.

APPEAL

2. CRIMINAL LAW 1090(13)
QUESTIONS REVIEWABLE.
In a prosecution for murder, a statement by
the assistant prosecuting attorney commenting
on the failure of defendant to deny that he sign-

For other cases see same toric and KEY-NUMBER in all Key-Numbered Digests and Indexes

ed the confession will not be reviewed in the ab- 3. CRIMINAL LAW 1093-APPEAL AND ERsence of a bill of exceptions.

Appeal from District Court, Morris County; J. A. Ward, Judge.

Abbie Lewis was convicted of murder, and he appeals. Affirmed.

BOR-BILLS OF EXCEPTION.

tion reciting that a witness was asked if it was In a prosecution for incest, a bill of excepnot the practice for children to adopt the name of their stepfather, and that he would have answered in the negative, was too indefinite for consideration.

E. B. Hendricks, Asst. Atty. Gen., for the 4. CRIMINAL LAW 1093-APPEAL AND ERState.

ROR-BILLS OF EXCEPTION.

In a prosecution for incest, a bill of exception that a witness had testified that her daugh

not be found was insufficient as being too indefinite.

On Motion for Rehearing. 5. INCEST 16 - INSTRUCTIONS RELATIONSHIP OF PARTIES.

DAVIDSON, P. J. Appellant was convict-ter disappeared in a certain county and could ed of murder; his punishment being assessed at 50 years' confinement in the penitentiary. [1] He failed to reserve exceptions to the charge of the court in any particular. Error is alleged on the part of the court in refusing to continue the case. It is sufficient answer to this to state that a bill of exceptions was not reserved, therefore that matter is not reviewable.

[2] Error is also alleged because the court permitted the state to offer in evidence a written instrument purporting to be the confession of appellant in writing made to one of the counsel for the state who was assisting the district attorney in prosecuting defendant, and in stating, in this connection, to the jury:

"Defendant signed this confession; he is sitting here now; if he did not sign it, why didn't he get on the witness stand and testify that he did not sign it?"

In a prosecution for incest it was error to evidence that the relationship was half-niece, submit the relationship of niece; there being in view of statute defining the crime which makes a distinction between niece and halfniece.

Appeal from District Court, Titus County; J. A. Ward, Judge.

Henry Griffin was convicted of incest, and he appeals. Reversed and remanded.

I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. [1] Incest was charg ed, the basis of which was that appellant This is a ground of the motion for new and the girl with whom the incestuous intrial, and is not verified by a bill of excep- tercourse is charged to have occurred were tions. In order to bring matters of this sort uncle and niece. The court charged the jury in review on appeal they may be properly that, if they believed this relationship existverified, otherwise they cannot be reviewed. ed, it would be sufficient within the statute The grounds of the motion do not allege the of incest to prohibit carnal knowledge befact that appellant did not take the witness tween parties. This is a matter of law unstand. The purported confession is not set der the statute, and the court was not in erout as a part of the grounds of the motion ror in thus instructing the jury. The court for new trial. did not assume nor charge the jury that the We would presume, in the absence of exceptions properly verified, that facts existed. He simply charged the jury there was no error in admitting the confes-that, if the facts did exist, as a matter of law this would bring the parties within the statutory inhibition.

sion, nor in the remarks of counsel in connection with it.

The judgment will be affirmed.

PRENDERGAST, J., absent.

GRIFFIN v. STATE. (No. 4733.)

[2] There are some bills of exception which are too indefinite for consideration. Bill No. 1, for instance, recites that the court permitted the witness G. W. Childress to testify that defendant has always been called Joe Griffin's son.

"I have known him ever since he was a year or two old, and he was then wearing the name (Court of Criminal Appeals of Texas. Dec. 5, of Griffin, and he was always known as Joe 1917. On Motion for Rehearing, Griffin's son."

March 20, 1918.)

How this arose or how it came about in 1. CRIMINAL LAW 761(6)-INSTRUCTIONS- the trial of the case is not stated. It may ASSUMPTION AS TO FACTS.

have been entirely admissible. It was evidence from a family relation who knew all the facts. Childress was related to these parties, as shown by the facts, and had

In a prosecution for incest, a charge that if the jury believed that the parties were uncle and niece they would be within the statute was not erroneous, since the judge did not assume or charge the jury as to the existence of facts. 2. CRIMINAL LAW 1093-APPEAL AND ER-known them practically all their lives, and BOR-BILLS OF EXCEPTION.

In a prosecution for incest, a bill of exception reciting that the court permitted a witness to testify that defendant had always been called a certain person's son was insufficient as being too indefinite.

testified as did other witnesses to facts which showed the relationship between the parties as charged in the indictment.

[3] Another bill recites that this same witness Childress was asked by appellant on

cross-examination if it was not a practice for children to adopt the name of their stepfather. Witness would have answered in the negative had he been permitted to answer, but the state objected and the court sustained the objection and a reply was not elicited. What was the object and purpose of this, or what effect it would have, is not stated, except the general proposition that it was in rebuttal to witnesses' testimony that defendant had gone by the name of Griffin. Had the witness answered it would have been in the negative, and could not have been of any advantage, so far as the bill shows, to appellant.

[4] The witness Etta Childress testified that her daughter disappeared in Red River county from her home and that she could not find her. The objection was that defendant was not charged with the crime in Red River, and was not charged with abduction. This is the bill, and it is too indefinite. As the bill presents itself, there is nothing upon which this court can base a conclusion. The facts would indicate, if we refer to the testimony, that the girl named as the incestuous paramour of appellant was sent from Red River county to Titus county by defendant, and he followed her and had incestuous intercourse with her in Titus county. It is unnecessary to discuss those matters further. The evidence is ample to show not only the

relationship, but clearly demonstrates the fact that they cohabited and held themselves out as husband and wife in Titus county. The judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. Appellant has filed a motion for rehearing.

Witnesses for the state who have testified to their knowledge of the good reputation of deceased as to peace may, to test their knowlexamination as to having heard or known of edge and credibility, be asked on their crossdeceased having killed a man, shot another, and being engaged in a number of fights.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

N. C. Patterson was convicted of murder, and appeals. Reversed.

Martin, of Weatherford, and A. L. Moore Simpson & Estes, of Ft. Worth, Preston and Charles T. Prewett, both of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Appellant's conviction was for murder, and his punishment assessed at confinement in the state penitentiary for 20 years.

[5] The indictment charges incest between The homicide took place in Tarrant counappellant and his niece. There is evidence The grand jury returned to show that she was the daughter of his ty in November. half-sister, making her only his half-niece in- into the district court of the Sixty-Seventh stead of full-blood. The contention is now judicial district a bill of indictment chargthat the court erred in submitting the rela-ing appellant with murder. At that time the tionship of the parties under the allegations Hon. Geo. E. Hosey was assistant county atof the indictment. Upon inspection of the torney, and pursuant to his duties as such statute, in view of the evidence, we are of assisted the grand jury in investigation of opinion that appellant is correct, and that the case and wrote the indictment returned. the affirmance should be set aside. The stat-At the succeeding term of court, on Decemute provides that where a party marries his niece or half-niece he would be guilty of incest, or where he should carnally know his niece or half-niece. Inasmuch as the Legislature saw proper to make these distinctions, we are of opinion that the charge of the court should have adhered to the statute and submitted to the jury the relationship of half uncle and half niece. It is unnecessary to discuss the other questions in the case.

The motion for rehearing is granted, the affirmance set aside, and the judgment is reversed and the cause remanded.

PRENDERGAST, J., absent.

ber 4, 1916, the court organized a grand jury which was composed of the same, or substantially the same, men that composed the grand jury for the November term, and which returned the indictment mentioned, and appellant was reindicted for the same offense, and about 10 days later the first indictment After the organizafound was dismissed.

tion of the criminal district court of Tarrant county the cause was transferred to that court, and Hon. Geo. E. Hosey became judge

thereof.

[1] Appellant makes the point that his connection with the case as assistant county attorney operated as a disqualification of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Judge Hosey to sit in the case. The Consti-, of Cock v. State, 8 Tex. App. 666, is used the tution (article 5, § 11) provides, among other following expression with reference to a disthings, as follows: qualified judge:

"No judge * * ** shall sit in any case The only question then arising touching where he has been of counsel for the the disqualification of the trial judge was state or the accused."

[2] The trial judge having announced his intention to change the venue of the case upon his own motion, the county attorney having suggested the propriety thereof on 662, a quo warranto proceeding, the facts the ground of previous trials, the appellant opposed the action of the court upon vari- were: That in a contemplated election upon ous grounds set out in writing. The court the question of incorporation of a town the heard evidence upon this opposition, disregarded it, and ordered the venue changed, appellant excepting.