Tex.)

which, under the decisions of this court, is not receivable. Branch's Ann. P. C. pp. 102, 103, §§ 168, 169, and cases cited. Appellant insists that the fact that the witness being a woman and in the habit of getting drunk would have tended to discredit her testimony beyond the point that it would have discredited by proof which was made that she was a prostitute. We think, as stated, It that the evidence was not admissible. would have been but cumulative of the fact testified to by the witness that she was in the habit of drinking intoxicating liquors.

[2] Complaint of the exhibition of the knife which was used in killing of deceased is made. It was not shown to be a deadly weapon per se, and was an element of evidence to be considered in determining the intent of the appellant, made so by statute. Article 1147, P. C. Appellant relies upon the cases in which it has been held erroneous to introduce the clothing of deceased in evidence. These cases will be found to reject such evidence only when it tends to prove no controverted fact, and to receive it when it does tend to make such proof. The knife in question, we think, comes within the latter rule, particularly under the statute mentioned and the authorities construing it. Vernon's P. C. p. 717. See, also, Branch's Ann. P. C. p. 1031, § 1855; Wharton's Cr. Ev. §

311, vol. 1.

[3] There is another bill complaining of the failure of the court to permit appellant to prove by the witness Miller that the deceased had the reputation, when under the influence of intoxicating liquor, of being a quarrelsome and dangerous man. This fact was proved by a number of witnesses, and, so far as we can discern from the record, is not a controverted issue. From the record it appears that the deceased bore the reputation of being a violent, dangerous, quarrelsome man, drunk or sober. Under the circum

stances the bill shows no harmful error.

disputed the fact that he was a quarrelsome, fighting man.

[4-6] The state asked some witnesses if appellant had not lived in adultery with his wife prior to their marriage. This was excluded, and the prosecuting attorney in arguing the case stated "they lived together as husband and wife before they were married." The bill shows that the court orally instructed the jury not to consider this remark, but refused written instructions to It appears, after this bill was that effect. allowed, the record in the court below was corrected so as to show that a special charge requesting the withdrawal of this remark, was given by the court to the jury, and by motion for certiorari, which was granted, the The undisputed record here was corrected. evidence was that appellant and his wife were living in a house of ill fame at the time of the homicide; that the wife had preceded her husband there, and there was evidence that he knew of the character of the premises and the reputation of the keeper of the house, Mrs. Miller, and that it was a house of prostitution. The record shows without objection that appellant's wife was living with Mrs. Miller at the time of his marriage. Attention to this is directed in the court's qualification to the bills under discussion. Appellant claimed that his wife had gone to the house of Mrs. Miller while he was away from home, and that he had gone there a month or six weeks before the homicide and persuaded her to go back with him to keeping house, but that, not having the money to make the necessary preparation at that time, they agreed to live together at Mrs. Miller's house in a room which they rented, and did live there during the time intervening up to the time of the homicide. There was evidence that during her stay there the wife of appellant pursued her avocation as a common prostitute with appellant's knowledge and consent. Brown, the deceased, was a cousin of appellant, and it appears was or had been living with Mrs. Miller and putting in a good portion of his time there. On the day of the homicide appellant went to the house, and in his wife's room found a man asleep on her bed. He (appellant) as claimed by the state's witness

He ordered the man out, and was having a wordy altercation with his wife when deceased went in the room to quiet the disturbance, as claimed by the state, and while in there he and appellant had words, deceased going into the kitchen of the house and Appellant appellant also going therein.

Another bill complains that appellant desired to ask several witnesses the general reputation of deceased in the neighborhood where he lived with reference to being of a quarrelsome and fighting disposition. The court qualifying the bill says that he offered to permit proof by the witnesses that deceases, was drunk, which was denied by him. ed had the reputation of a fighting and dangerous man. A number of witnesses testified that deceased was a quarrelsome, dangerous fighting man. Some of them qualified it by saying that he was such when he was under the influence of intoxicating liquor. Several of these witnesses testified to specific instances in which the deceased mani- claimed that when deceased came in the fested a fighting and quarrelsome disposi-room where he was that he cursed him, stattion. Appellant testified to a number of in- ing, "This is our house, and I am running stances himself. Proof was undisputed that it," and stating that if appellant's wife staydeceased had been drinking on the day of the ed there she had to hustle; that he (dehomicide. Some of the witnesses testified ceased) was broke and had to have money; that he was not drunk, but none testified to that as deceased went out he said something

not hear; that when he reached the kitchen | appellant, it declined to permit the same
deceased attacked him, and he cut him to
save his life. He offered proof by one of the
witnesses that deceased received part of the
money which was earned by the women in
the house, and also claims that his special
charge, to the effect that the jury could not
consider the character or reputation of the
house in which the homicide took place, or
the parties therein, as in any manner abridg-
ing the defendant's right of self-defense, but
that his right to defend against an unlawful
attack would be the same as any other place
under the circumstances. The harm of re-
fusing this charge, appellant insists, was em-
phasized by the fact that in selecting the
jury a number of them were disqualified by
stating that, if it should develop that appel-
lant was living in a house of prostitution, it
would influence them. After excusing sev-
eral jurors on this ground the court declined
to permit the same question to be asked fur-
ther. We think this question would have
been a proper one not for a disqualification,
but as basis for a peremptory challenge.
The bill, however, does not raise the ques-
tion as to error in permitting the question,
but refers to it only as emphasizing the ne-
cessity for the special charge mentioned.
The court's charge does not in any way qual-
ify appellant's right of self-defense, and is
not complained of as doing so. Under these
circumstances we do not think the court
committed error in refusing the special
charge, nor in rejecting the testimony men-
tioned. The record indicates that deceased
was interested in the house. That fact, how.
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 appellant. 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.

question to be propounded further for the
purpose of disqualification. The question,
in substance, was an inquiry whether,
if the court instructed them that insulting
remarks made by deceased to the wife of
appellant might reduce the grade of the of-
fense from murder to manslaughter, and it
appeared from the evidence that the homi-
cide took place while the appellant and his
wife were living in a house of prostitution,
they would try the appellant just like they
would try any other man who was not liv-
ing in a house of prostitution. The question
as propounded was hypothetical, a charac-
ter of question which it seems the court has
discretion to refuse to permit in examining
jurors on their voir dire. Thompson on
Trials, §§ 101-104, vol. 1, p. 114; Railway v.
Terrell, 69 Tex. 650, 7 S. W. 670. The man-
ner of examining jurors, even for the pur-
pose of peremptory challenge, is necessarily
one in which the trial court has some lati-
tude in the exercise of discretion. Cyc. vol.
24, p. 328. The question propounded might
have been modified so as to elicit the infor-
mation which appellant desired with refer-
ence to the mental attitude of the jurors with
had been so modified, and the purpose of it
reference to the trial of appellant; and, if it
had been for the use of appellant in exercis-
ing his peremptory challenges, we think he
would have been entitled to the information.
The scope of inquiry for the purpose of ob-
taining information from jurors as a basis
for peremptory challenge is quite broad.
This inquiry as shown by the bill, however,
was not made for that purpose, but as a ba-

sis for disqualification of the jurors. The
question was addressed to the attitude of
the jurors with reference to according the
appellant the benefit of the statute with ref-
erence to insulting remarks to a female rela-
tive in deciding whether the homicide was
The verdict of
murder or manslaughter.
manslaughter would seem to indicate that ap-
pellant was not harmed by the action of the
court complained of in this bill.

The motion for rehearing is overruled.
PRENDERGAST, J., absent.

[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 (Court of Criminal Appeals of Texas.

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

LEWIS v. STATE. (No. 4951.)

20, 1918.)

March

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

In a prosecution for murder, the refusal of
a continuance will not be reviewed in the ab-
sence of a bill of exceptions.
2. CRIMINAL LAW 1090(13)
QUESTIONS REVIEWABLE.

APPEAL

In a prosecution for murder, a statement by the assistant prosecuting attorney commenting on the failure of defendant to deny that he sign

ཤ

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.

ROR-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.

DAVIDSON, P. J. Appellant was convicted 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?"

ROR-BILLS OF EXCEPTION.

In a prosecution for incest, a bill of exception that a witness had testified that her daughter disappeared in a certain county and could not be found was insufficient as being too indefinite.

On Motion for Rehearing. 5. INCEST 16 - INSTRUCTIONS-RELATIONSHIP OF PARTIES. In a prosecution for incest it was error to submit the relationship of niece; there being in view of statute defining the crime which evidence that the relationship was half-niece, 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. We would presume, in the did not assume nor charge the jury that 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 sion, nor in the remarks of counsel in conlaw this would bring the parties within the nection with it. statutory inhibition.

The judgment will be affirmed.

PRENDERGAST, J., absent.

[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 Dec. 5, of Griffin, and he was always known as Joe Griffin's son."

GRIFFIN v. STATE. (No. 4733.) (Court of Criminal Appeals of Texas. 1917. On Motion for Rehearing, March 20, 1918.)

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

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

ROR-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.

[5] The indictment charges incest between appellant and his niece. There is evidence to show that she was the daughter of his half-sister, making her only his half-niece instead of full-blood. The contention is now that the court erred in submitting the relationship of the parties under the allegations of the indictment. Upon inspection of the statute, in view of the evidence, we are of opinion that appellant is correct, and that the affirmance should be set aside. The statute 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.

PATTERSON v. STATE. (No. 4948.) (Court of Criminal Appeals of Texas. March 20, 1918.)

1. JUDGES

47(1) — DISQUALIFICATION COUNSEL FOR STATE ASSISTANT COUNTY ATTORNEY.

the duties prescribed by Pen. Code 1911, arts. The assistant county attorney who, under 426-428, assisted the grand jury in investigation of the case, and wrote the indictment re turned, which was superseded by another found Cr. Proc. 1911, art. 617, disqualifying a judge by the succeeding grand jury, is, within Code to sit in a case where he has been counsel for the state.

2. JUDGES 56-DISQUALIFICATION-EFFECT ON ORDER-CHANGE OF VENUE.

An order changing the venue made on the judge's own motion under Code Cr. Proc. 1911, § 626, being made by a judge disqualified to sit in the case, is void; judicial discretion being involved. 3. WITNESSES 274(2) CHARACTER WITNESSES-CROSS-EXAMINATION.

Witnesses for the state who have testified to their knowledge of the good reputation of deceased as to peace may, to test their knowl examination 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.

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

for murder, and his punishment assessed at confinement in the state penitentiary for 20 years.

MORROW, J. Appellant's conviction was

The homicide took place in Tarrant county in November. The grand jury returned into the district court of the Sixty-Seventh judicial district a bill of indictment charging appellant with murder. At that time the Hon. Geo. E. Hosey was assistant county attorney, and pursuant to his duties as such assisted the grand jury in investigation of the case and wrote the indictment returned. At the succeeding term of court, on December 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

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:

where he has been of counsel for the the disqualification of the trial judge was state or the accused."