do not think the application showed sufficient diligence as to witness. Allen. On the presentation of the motion for new trial the court heard evidence which in substance showed that the officers had gone to the parties named to them by appellant and his attorney as being able to locate said witness, and that they had been unable to find her, and ascertained that she was out of the city. The motion for new trial was heard by the court more than two weeks after the date of trial, and no affidavit of said witness was attached to said motion. The testimony of the absent witness Williams is not shown by the application to have been material. It would only have become material as contradictory of the testimony of Mrs. Ruth Martin, a State witness, but an examination of the evidence given by Mrs. Martin discloses that she testified in substance to the same matters attributed to the witness Williams. We are of opinion no error is shown in the overruling of said application.

By his bill of exceptions No. 13 appellant complains of evidence of a conversation between Ruth Martin and prosecutrix. We will not discuss said bill at length, but are of opinion that same is not so drawn as to present error, it not being shown that appellant was not present at the time of said conversation.

The appellant's theory of the case was that the complaint was filed against him by prosecutrix, and his conviction sought as a predicate for a proposed damage suit against him by her. Ruth Martin testified for the State and said that she went out to see prosecutrix shortly after the occurrence, on behalf of appellant. She was asked by State's counsel to tell what she said to prosecutrix on the occasion of her visit to the latter and her reply, said statements being set out in bill of exceptions No. 14 as follows: "A. That he was going to sue her for blackmailing. She said, 'Let him sue, for we don't care, we didn't go into this thing for money,' and she was going to carry it through to the very last." This was objected to for that it was not res gestae, not in the presence and hearing of the accused, and could have served. no other purpose than to prejudice the case. Substantially the same matter and the same objections are presented in bill of exceptions No. 10, wherein the same facts were stated by prosecutrix when on the witness stand. Nothing in the record makes this hearsay statement and conversation admissible. Manifestly Ruth Martin went to see prosecutrix purporting to aid appellant, and the record is susceptible of the construction that he wanted her to go, or that he sent her, but we find no where any instruction from him as to what she should do or say. The statement of the prosecutrix just quoted was a direct denial by her, at a time when no such charge had been made, of the motive assigned by the defense as the moving cause of the prosecution; and was a strong refutation, if true and admissible, of appellant's theory. We cannot, therefore, hold that such hearsay statement was. not hurtful. Appellant's objection should have been sustained to the conversation in such instance.

The matter objected to and set forth in bills of exception Nos. 3 and 4 would also be inadmissible if transpiring out of the presence and hearing of the accused. Said bills are approved without explanation or qualification by the trial court. Bill of exceptions No. 3 sets out objections to a conversation had between prosecutrix and two of her female companions about a half hour after the time of the occurrence charged. Bills of exceptions No. 4 relates to statements made by prosecutrix several hours after said alleged cccurrence. Manifestly it would not be competent as a matter of original evidence, unless res gestate, to approve or behalf of the State that at various times after the alleged assault prosecutrix warned her friends against appellant and told them that he had hugged and kissed her.

After the alleged assault prosecutrix returned to appellant's place of business accompanied by one Whitman, who was introduced on the trial as a witness for the State. In his direct examination Mr. Whitman was asked by the State what his purpose was in going to said place of business, to which he answered, "To give Mr. Crispi a beating." Appellant's objection to this should have been sustained. The purpose of said witness in such visit shed no light on any issue herein and only reflected the complaint of prosecutrix, and the feeling. aroused in the breast of Whitman thereby. The testimony should not have been allowed.

In cases of aggravated assault based on assaults of indecent character by an adult male person on a female, it is not erroneous to give in charge to the jury the presumption of intent to injure deducible from injury set out in Art. 1009, Vernon's P. C., the substance of which was presented in a charge given at the instance of the State. Tubbs v. State, 50 Texas Crim. Rep., 143.

Appellant positively denied kissing prosecutrix as claimed by her. There is nothing in her testimo y remotely suggesting that the kiss was with her consent, or that it was not without such consent, in which condition of the record it was not erroneous for the court to refuse appellant's special charges Nos. 2, 3 and 5, which sought to have the jury told that if appellant kissed prosecutrix with no intent to injure her feelings, and believing same would not be objectionable to her, they should acquit. No need existed to charge upon a theory unsupported by the evidence.

Appellant asked special charge No. 1 to the effect that if the jury believed that appellant only placed his hands on the shoulder of prosecutrix for the purpose of getting by her, or moving her from his way so he could get by, and did nothing else to her, and that in what he so did there was no intent to injure, he should be acquitted. We find upon examination that no exception was taken to the charge of the court as given for failure to incorporate therein such defensive theory, which exception should have been taken as a predicate for the requested charge in a misdemeanor case. The court no where presented affirmatively the theory of the accused as made by his.

testimony and as presented by said special.charge. Had proper exception been taken, this would have been reversible error, as the duty of the court is to present affirmatively the theory of the appellant if supported by any evidence. Menach v. State, 97 S. W. Rep., 503; Porterfield v. State, 141 S. W. Rep., 968.

For the errors mentioned the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.

FRANCISCO ESPALIN V. THE STATE.

No. 6420. Decided November 23, 1921.

Rehearing denied January 25, 1922.

1.—Accomplice-Murder-Justifiable Homicide-Statutes Construed-Theft.

Where, upon trial of murder as an accomplice, the facts showed that the deceased was shot and killed as he got over a fence into a melon patch of defendant, the contention that defendant and his principal were justifiable in the killing, under Article 1105, P. C., which provides that homicide is justifiable when the person killed is committing a theft, is untenable, because said Article was changed by Article 1234, P. C., which specifically declares that if any person shall take or carry away from the farm, orchard, etc., and fruit, melons, etc., he shall be guilty of a misdemeanor.

2.-Same-Rule Stated-Legislative Intent-Classification of Offenses.

When the Legislature selects certain acts, though theretofore, or otherwise made penal under an existing statute, and by specific designations makes such acts punishable by a different penalty from that theretofore applicable, and essentially changes the ingredients of the new offense, such specified acts are removed from the list, or classification of crimes to which they formerly belonged, and must thereafter be in that class in which they are placed by such new Act. Following Busey v. State, 87 Texas Crim. Rep.,

23.

3. Same-Statute Construed-Legislative Intent-Theft-Classification.

The language of Article 1234, supra, omits the well-recognized elements of theft, and would seem to plainly indicate that the Legislature intended to remove the act therein named from the domain or classification of theft.

4. Same Statutes Construed-Justifiable Homicide-Taking Melons From Field.

The conclusion of this court is that one who kills another while the latter is engaged in an act comprehended by the terms of Article 1234, supra, could not as a matter of law claim such act to be justifiable homicide; but this in no wise affects one's rights to act in the defense of property, as given under Article 1107, P. C. Distinguishing Grant v. Haas, 75 S. W. Rep., 345; Slack v. State, 67 Texas Crim. Rep., 460; and Davis v. State, 81 Texas Crim. Rep.

450.

5. Same-Requested Charge-Segregated Melons-Theft.

Where, upon trial of murder, the evidence did not show that the deceased and his companions knew there were any melons in the patch pulled or 90 T. C.-40

piled up in the field, there was no error in refusing the requested charge that if deceased entered the premises in question on the night of the homicide to steal melons already severed from the vines, etc., to acquit the defendant. 6. Same-Requested Charge-Accidental Shooting not Raised.

Where there was no testimony tending to raise the issue that the principal of the defendant shot at the companion of the deceased, and that such shots accidentally killed the deceased, there was no error in the court's failure to submit a requested charge on this phase of the case.

7.-Same-Principal-Accomplice-Indictment-Practice in Trial Court.

Where the indictment contained two counts, one charging appellant as principal in the murder, and the other charging him as an accomplice, and both counts being submitted to the jury when the case was closed, there was no error in overruling defendant's motion for an instructed verdict as to the first count, inasmuch as the verdict found defendant "not guilty" under such count.

8.-Same-Peremptory Charge-Principal and Accomplice.

Upon trial of murder there was no error in refusing defendant's motion for an instructed verdict for acquittal, as the evidence raised the issue that defendant was an accomplice to the person who killed the deceased.

9.-Same-Confessions-Principal-Evidence-Practice

Charge of Court.

in Trial Court

The weight of authority seems in favor of admitting the confessions of the principal where an accomplice is on trial, it being necessary to show the guilt of the principal, and all evidence is admissible whose legitimate tendency is to show such guilt. Following Simons v. State, 10 Texas Crim. App., 131, and other cases, and such confessions are not limited to a narration of the bare facts but includes such statements as to show malice, deliberation, etc., and where the court properly limited the charge to the guilt of the principal, there was no reversible error.

10. Same-Confessions-Principal-Bill of Exceptions.

Where the bill of exceptions did not point out any part of the confession of the principal and make specific objections thereto, but the objection was as to the whole for the reason stated, there was no reversible error.

11.-Same-Evidence-Volunteered Statement-Harmless Error.

Where, upon trial of murder, a statement made by the wife of the principal of the defendant on cross-examination not in response to any question, and which was a mere volunteered statement, but the same could not under the facts of the instant case have injured the defendant, there was no reversible error.

12.-Same-Argument of Counsel-Bill of Exceptions-Practice on Appeal.

Wherein defendant's bill of exceptions there appeared nine quotations from the district attorney's speech to the jury, many of which were permissible, and no setting or connection was given in said bill of exceptions as to any of said quotations, there was no reversible error.

13. Same-Sufficiency of the Evidence-Principal-Accomplice.

Where the defendant was indicted as an accomplice, and the testimony of his principal clearly showed his guilt, and this testimony was substantially corroborated, the conviction of murder as an accomplice is sustained.

14.-Same-Statutes Construed-Other Courts-Definition of Offense.

Where appellant insisted in his motion for rehearing that this court did not correctly interpret the case of Grant v. Haas, supra, and others, and that the same is authority for the contention of appellant that taking melons at night is theft, this court, while it cannot go further than to say that the issue presented in said civil case does not apply to the facts in the instant case, must adhere upon its own construction of Article 1234, P. C., which makes it a misdemeanor to take melons at night, etc., from an orchard, etc. And the same reasoning applies to Sparks v. State, 76 Texas Crim. Rep., 263. 15.—Same-Rule Stated-Statutes Construed-Taking Melons—Misdemeanor.

If two legislative acts are positively repugnant, so that they cannot be reconciled and made to stand together by any fair and reasonable construction, then the one last passed will controi and repeal the earlier law, and the latter enactment of Article 790, P. C., now Article 1234, P. C., provides that the taking of melons, fruits, vegetables, etc., from the farm, orchard, etc., shall be a misdemeanor punishable only by fine.

16.-Same-Statutes Construed-Other Jurisdiction-Amendment.

This court cannot assent to appellant's proposition that after the act of 1913-which was the latter law under discussion in the Sparke case, supra, was amended by Acts Regular Session, 1915 (which amendment merely eliminated from said law the words 'steal') that said law became and now stands on a parity with and is similar to, in effect, to Article 1234, supra. 17.-Same-Volunteered Statement-Cross-examination-Rehearing.

Where appellant again in his motion for rehearing urged that this court was in error in holding that no injury resulted from a statement volunteered by the wife of the principal of defendant, etc., this court must after due consideration adhere to the ruling that no injury was shown to the defendant. 18.-Same-Argument of Counsel-Practice on Appeal.

The statement by the prosecuting attorney in which he referred to the appellant as "this killer," were of such inflammatory character as to call for a reversal, is untenable, under the facts in the instant case.

Appeal from the District Court of El Paso. Tried Lelow before the Honorable W. D. Howe.

Appeal from a conviction as an accomplice for murder; penalty, fifteen years imprisonment in the penitentiary.

The opinion states the case.

Winter, Goldstein, Miller, McBroom & Scott, and Jackson, Isaccks & Fryer, for appellant. Cited cases in opinion.

R. G. Storey, Assistant Attorney General, and Chas. Owen, and C. L. Vowell, for the State. Cited cases in opinion.

LATTIMORE, JUDGE.-Appellant was convicted in the Thirtyfourth District Court of El Paso County, of being an accomplice to the crime of murder, and his punishment assessed at fifteen years in the penitentiary.

Appellant owned land in the Rio Grande valley below the city of El Paso. On said land he had patches of watermelons enclosed by wire