The offense is assault with intent to murder; the punishment confinement in the penitentiary for four years.
The recognizance recites that appellant "stands charged with the offense of assault with intent to murder," but fails to show that appellant has been convicted. It is necessary that the recognizance or appeal bond show that appellant has been convicted. Article 817 Cow. C. P.; Wilmering v. State,272 S.W. 463. Appellant being enlarged under a defective recognizance, this court is without jurisdiction. Rhea v. State,275 S.W. 1021.
The appeal is dismissed.
Dismissed.
The record has been corrected so as to show a proper recognizance and the appeal is therefore reinstated and the case will be considered on its merits.
Appellant and the assaulted party were brothers-in-law between whom there existed an enmity. The appellant introduced communicated threats purported to have been made by the assaulted party against him previous to the difficulty. Thereupon the State introduced *Page 118 several witnesses who testified to the assaulted party's good reputation as a quiet, peaceful and inoffensive man. Objection was made to this testimony for the reason, as we understand it, that Art. 1258 of the Penal Code applies to murder cases and not to assault to murder cases. Part of this article reads: "In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased." It is claimed that since the assaulted party was living and not "deceased," the article would not apply. This exact question was before this Court in the case of Smith v. State, 55 Tex.Crim. Rep., in which the Court said:
"We think after all the statute is but declaratory of the general rule and to limit it to cases of actual death of the person assaulted would be to nullify its salutary provisions." See also Bingham v. State, 6 Tex.Crim. App. 169.
The case of Jupe v. State, 217 S.W. 1041, relied on by appellant, is clearly distinguishable from the instant case and merely announces the well known rule that "the good reputation of the prosecutor is not admissible in evidence as an original proposition." Of course where no attack had been made on the character of the assaulted party and no threats had been introduced, this would be true.
It was shown by bill of exception that after appellant had shot prosecuting witness he went to his home, a distance of something like a half mile, and there met his brother and said: "Come here" and took me in the north room, and he said, "I have had trouble with Levi," and I said, "You have again," and he said, "Yes, I have shot at him," and I said, "How did you come to do that?" Whereupon, appellant related all of the details of the trouble, which was excluded by the Court. It is claimed this was res gestae. The facts of each case must guide this Court in determining whether a statement was in fact res gestae. There is no fixed rule in Texas to which we can look for guidance. It may be stated generally that where the statement of a defendant is disconnected from the main transaction and appears to be a statement or relation of how it occurred, there being a break or let-down in the continuity of the transaction and the statement lacks the character of instinctiveness, it is not admissible as part of the res gestae. Pharr v. State, 10 Tex.Crim. App. 485. Branch's P. C., Sec. 84. The statement on its face lacks that instinctive and spontaneous character which is held to be an indispensable prerequisite to its admissibility and in our opinion the Court was correct in excluding same. *Page 119
By a physician appellant offered to prove that he was at the time of the trial suffering from tuberculosis and could not live long in the penitentiary, if sent there. We are unaware of any authority which makes the presence of a disease of itself a defense to a crime. There might be issues in the trial that would make this testimony admissible but none of them appear to be present in the instant case.
Complaint is made of the argument of the County Attorney but same has not been preserved by bill of exception and nothing is therefore presented for review.
Finding no error in the record, the judgment is affirmed.
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.
ON MOTION FOR REHEARING.