Appellant was convicted of murder with malice of Lulius Crider, and given a penalty of twenty-five years in the State prison, and he appeals.
The appellant filed an affidavit that he was too poor to pay the cost of preparing a statement of facts, and requested the trial court to order the court reporter to prepare such a statement. This the trial court did, but due to the fact that appellant had been moved from the Llano County jail to the Travis County jail soon after the trial was concluded, and where he was continuously confined, and due to the further fact that appellant's attorneys, who were appointed by the court to conduct the trial, did not expect to appeal this cause, this affidavit was not called to the trial judge's attention until about nine days prior to the expiration of the ninety days allowed by law for the filing of such statement, at which time the judge entered his order directing the reporter to make up a statement of facts. Immediately after the entering of such order of the trial judge the court reporter began the preparation of such statement and completed and filed the same on the 9th day after the expiration of such ninety days, the statement consisting of 135 typewritten pages in a narrative form. This statement, agreed to by all parties, and approved by the court, is present in the record. Under the peculiar circumstances of this case, we do not think appellant should be deprived of a statement of facts because of the late filing thereof, and we will consider the same.
There are no bills of exceptions in the record, and the facts briefly show the following:
Appellant and the deceased, Julius Crider, had married sisters, the daughters of Virgil Casper, constable of the Llano precinct and night watchman, appellant's wife being dead at the time of the killing. There had been some previous disagreements between the appellant and the deceased but no serious trouble, *Page 128 although appellant proved some threats upon the part of deceased to kill appellant. On the night before the killing appellant and deceased met in the back yard where deceased was living, and doubtless had some words, and appellant seems to have been struck by deceased with a piece of 2 x 4 scantling. Appellant complained to the officers that night, and attempted to borrow a pistol. The next morning, being Sunday, appellant was in a barber shop, next to a meat market, in the town of North Llano, and the deceased drove up in a car to this market, going therein and purchasing some meat; as he came out of the door appellant appeared from out the nearby barber shop and shot at deceased, striking him on the body, who crouched down and said: "Don't do that." Appellant shot again and struck deceased near the heart, causing his early death.
The trial court charged the jury on murder, both with and without malice, self-defense, threats, and also admonished the jury not to take into consideration nor mention appellant's failure to take the witness stand in his own behalf. We find no objections nor exceptions taken to the court's charge.
We do find an allegation in the motion for a new trial relative to misconduct of the jury, and testimony relative thereto. The jurors evidently did discuss the fact that there was a void or interim in the testimony of the witnesses relative to what took place between appellant and deceased immediately after deceased came out of the market and before the firing of the first shot. It seemed to be their contention, borne out by the record, that no witness had described the position of these two men just prior to such shooting, and the jury were not enlightened as to such facts. The jurors said in their testimony that under such a situation they decided to reduce the severity of the penalty they awarded him.
It is evidenced by the facts that this homicide took place in the daytime on a public street in the town of north Llano, and there were other persons present besides appellant who could have probably seen the whole transaction and given the jury their version thereof had they been called to the witness stand. Under these circumstances we do not think a mention of the failure to enlighten the jury as to what took place just before the shooting necessarily referred to appellant's failure to testify, there being witnesses other than appellant who could have been used therefor. See Art. 710, Vernon's Ann. Texas C. C. P. We do not think the careful trial court abused his discretion in failing *Page 129 to grant a new trial on the ground of misconduct of the jury.
We are also of the opinion that the facts are sufficient to show an unlawful killing with malice.
We perceive that the trial court failed to apply the indeterminate sentence law in the judgment herein, and same is therefore amended to provide for appellant's confinement in the State penitentiary for not less than two years nor more than twenty-five years, and as thus amended, the judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING.