The offense is an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of one year.
Appellant was engaged in the dairy business. H. R. Jones, the injured party, was employed to milk and feed his dairy cows. On the day in question each one had taken a few drinks of whisky. Late in the afternoon while Jones was milking, appellant came to the corral and expressed the opinion that the milking machine was running too fast. Jones became irritated at appellant's statement and remarked that he would quit. While Jones was pulling his rubber boots off and putting on his shoes, appellant shot him in the right hip with a pistol.
Appellant pleaded self-defense and testified at the trial that Jones made an attempt to strike him with an ax, but this was denied by Jones. Thus an issue of fact was raised which the jury decided adversely to him.
Bills of Exception Nos. 1, 2 and 3 relate to the same matter and may be disposed of together. These bills reflect that appellant proved by a number of witnesses that his general reputation for truth and veracity, as well as a law-abiding citizen, was good. The District Attorney, on cross-examination of each *Page 262 of said witnesses, inquired of him if he had not heard that in April, 1943, about three months subsequent to the commission of the offense charged, he (appellant) was at the American Cafe in Ysleta, Texas, and there threatened to kill Bill Patterson, to which each witness replied in the negative. Appellant objected to the inquiry upon various grounds not necessary to state here.
Appellant at the proper time had filed a plea for a suspension of sentence in the event of his conviction. When the question of a suspension of sentence becomes an issue, the character of the accused at the time of his trial is a matter which the jury is to determine, not alone from his character prior to the time of the alleged offense but subsequent thereto up to the time of his trial. In support of the opinion here expressed, we refer to Mason v. State, 90 Tex.Crim. R.;236 S.W. 93; Moore v. State, 161 S.W.2d 83; Hart v. State,141 S.W.2d 648.
Appellant, in his brief as well as in his oral argument to this court, asserts that there was no basis for the asking of the question inasmuch as there was not any evidence adduced upon the trial that appellant threatened to kill Bill Patterson at the cafe; that the question was asked merely for the purpose of prejudicing him before the jury trying the case. Had his bill of exception shown that there was not any basis for the question and that it was asked for the purpose of prejudicing the jury against him, then a different question would have been presented, but his bill fails to show such to be the case and we would not be justified in assuming that the District Attorney had no information of such an occurrence. "A bill of exception should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error." Branch's Ann. Tex. P. C., p. 131, sec. 207, and authorities there cited. Consequently, appellant's bill of exception fails to reflect any error with respect to the question complained of.
All other matters complained of have been carefully considered by us but, in our opinion, they fail to reflect any error.
No error appearing in the record, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 263
ON MOTION FOR REHEARING.