This conviction was for aggravated assault. When the case was called for trial, before announcing ready, defendant filed a motion stating that he had not been served with a copy of the indictment, and asked that he be so served, and requested that he be granted two days after such service before being required to plead to the indictment. The indictment charged him with assault to murder. The bill further recites that the motion was presented to the court on the 9th of December, 1919, and that he was served with a copy of said indictment at five minutes after 11:00 o'clock the same morning. Appellant was arrested under warrant issued from the justice court on the 16th day of July, 1919, and was confined in jail until the 11th of August, 1919, at which date he was released upon bond. The indictment was filed on the 12th day of September, 1919. Upon being notified of that fact he made his appearance bond shortly afterward without further being actually imprisoned. Since making these bonds he has been at liberty, and was at the time that he presented his motion.
Appellant contends that he was entitled under this statement to have a copy of the indictment served upon him and two days thereafter in which to prepare for his defense. In support of this he cites us to Martin v. State, 80 Tex.Crim. Rep.. We are of opinion that this case does not support his contention. Martin was indicted on the 23rd of May, 1916, was arrested the same day, and gave bond. A copy of the indictment was not served upon him. When the case was called for trial six days later appellant filed a motion stating that he had not been served with a copy of the indictment, and requested that the officers be required to deliver him a certifed copy, and that he then be granted two days in which *Page 514 to plead to the indictment. Had appellant been in jail at the time of the return of the indictment his motion would have been well taken, or had he been at large and not under bond at the time of the return of the indictment, his motion would have been well taken; but in this case appellant was under bond at the time of the return of the indictment and had been under bond for about a month. It seems from the bill of exceptions he voluntarily entered into bond without being actually in custody under the indictment. Under the statute there are two phases of this question of service of the indictment. One is where it was requisite when insisted upon by the accused before he can be placed upon trial, but in such instance he must either be in custody at the time of the return of the indictment, or if at large at the time of the return of the indictment and not under bond then the service is required by the statute to be served upon him, and upon this he can insist unless he in some manner waives such service. Venn v. State, recently decided. The other phase to the statute is that where the party is under bond at the time of the return of the indictment he may demand a copy, and it would be error to refuse it, but in such case it is not obligatory upon the clerk to issue or the sheriff to serve such copy unless a request has been made for such copy. The statute seems to draw a distinction between where the party is under bond at the time of the return of the indictment and where such is not the case. This statute is in harmony with the Bill of Rights, which provides that the accused is entitled to have a copy of the pleadings bringing an accusation against him. In this particular case we find no error in the ruling of the court. Appellant was under bond at the time of the return of the indictment, and had not been in jail since executing his first bond. He had a right to demand a copy at any time, and here upon his demand he was at once served with a copy. This was in accordance with the law as we understand it. See Revill v. State, 87 Tex.Crim. Rep., decided at the present term of the court.
A bill of exceptions was reserved with reference to some matters brought out from the assaulted party Stepp while testifying for the State. This was over the objection of the defendant. The bill of exceptions is quite lengthy, the substance of which is that Stepp was permitted to testify to the wounds inflicted upon his head and the character of the wounds. Two of the wounds, one behind the right ear and one on top of the head, were inflicted, according to Stepp's testimony, by the defendant with a blunt instrument. The second wound knocked him senseless. He described these wounds, and also thought there was a third wound that was inflicted upon him without his knowledge, that is, while he was unconscious. The objection seems to be based upon the general proposition that these were but conclusions and opinions of the witness, and in support of this we are cited to Conde v. State, 33 Tex.Crim. Rep.. We *Page 515 do not understand that case to be in point or support of the proposition. The witness in the Conde case testified that he saw the body of deceased and that it was bloody and had a cloth of some character over the face where the wounds were supposed to have been inflicted. Under those circumstances that witness could not state that the wounds were inflicted by a gun shot. It was but a conclusion, for he did not see the wounds. Had he seen the wounds the proposition would have been different. It does not take an expert to describe a wound. The testimony elicited, as we understand this bill of exceptions, from Stepp was that he was struck these blows and they inflicted wounds upon his head. Any witness could have testified who had seen the wounds to the fact that they were wounds and could have described them. There are other cases cited besides the Conde case, but they are to the same effect.
Another bill of exceptions was reserved to testimony in regard to a previous trouble between the assaulted party Stepp and defendant occurring something like twenty-four hours or more before this difficulty. This occurred at a station called Gunter. The occurrence and some of the details of what occurred between defendant and Stepp were given. This is not an extraneous matter or an extraneous offense as here applicable. This testimony was introduced to show the relation between the parties and the feeling of appellant toward Stepp. Evidence that shows motive or malice may not be regarded as extraneous in cases of this sort. This was the inducing cause urged why appellant made the assault the following night upon Stepp. We are of opinion this testimony was admissible to show malice and motive.
Another bill of exceptions recites that while the witness Barr was on cross-examination by the State he was permitted to testify that he had been charged with and convicted of a felony in McLennan County, and that that felony was assault with intent to murder. Thereupon defendant took the witness and upon re-direct proved by him that this was in the year 1907, and that he was convicted of assault to murder and allotted ten years in the penitentiary. He was then asked by defendant if he had been pardoned. Upon the State's objection the answer was not permitted, the objection being that if he had been pardoned that the pardon would be the best evidence. The appellant was then permitted to further examine the witness and prove by him he did not remember how long he had been out of the penitentiary, but said about four years. The witness, however, was permitted to and did testify. Appellant's contention is that this was too remote, that it had been more than seven years since witness' conviction. There is no evidence in regard to his course of conduct after he had been released from the penitentiary presumably under the pardon. We are of opinion there was no error in the ruling of the court in regard to this matter. His term of service in the penitentiary should not be regarded in the time *Page 516 occurring between the conviction and the time of his testifying. It may be presumed that the State began this cross-examination of the witness to ascertain whether or not he had been pardoned with a view of disqualifying him as a witness had he been in the penitentiary. The court decided this matter against the State and the witness testified. In order to disqualify or render incompetent the witness it was necessary to produce the pardon. This not being done, he was permitted to testify, and here the matter ended.
Another bill of exceptions recites that the State was permitted to prove by appellant that on account of the difficulty at Gunter with Stepp he was discharged from the railway service, and that this discharge occurred in connection with that trouble. While the act of the discharge by the railroad would not be perhaps admissible as acts of a third party, it was introducible in this case to show that on account of this discharge appellant had conceived malice towards Stepp and that the difficulty with him was the occasion of such discharge. Whether it was the act of the railroad or not, defendant and Stepp were so mingled up with it and the discharge so connected with the difficulty, that if appellant conceived malice towards Stepp it may have been a cause for his attack upon him. The jury could so regard it. This matter was so connected with it that it was admissible not as an act of the railroad people but as a basis why he felt ill-will toward Stepp as being the cause of the discharge.
There is another bill of exceptions but it is so long and complicated that we are unable to understand exactly what part of the testimony set out in it was objected to and what was not. Much of the testimony was admissible, if not all of it. This court would not be called upon to take a lengthy bill of exceptions and cull from it such matters as might not be introducible when much of the testimony so narrated is admissible. The bill is so indefinite that we are unable to understand fully what was the purpose of the bill and to which part of the testimony objection was really urged; therefore, it is not further discussed.
Finding no material error in the record, if error at all, we are of opinion the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
ON REHEARING. June 23, 1920.