Brown v. State

• Decision Date: 11 February 1925
• Docket Number: (No. 8702.)
• Citation: 274 S.W. 588
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

274 S.W. 588

BROWN v. STATE.

(No. 8702.)

Court of Criminal Appeals of Texas.

February 11, 1925.

On Motion for Rehearing, June 10, 1925.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Austin Brown was convicted of assault to murder, and appeals. Reversed and remanded on rehearing.

W. S. Holman, of Bay City, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Matagorda county of assault to murder, and his punishment fixed at two years in the penitentiary.

It is shown that on the occasion in question both appellant and the injured party took part in a shooting. There had been a prior difficulty between them. According to the testimony of the state witnesses, Williams and his wife, the assaulted parties, in their wagon started to town to make complaint against appellant. Their route ran past appellant's house, and, fearing trouble they took a shotgun with them. While on their way, appellant, on horseback, chased them at full speed, and shot twice at them with a pistol, and they returned the fire. The evidence sharply conflicted, but there are facts sufficient to support the jury's finding.

Appellant files 16 assignments of error. There are 10 bills of exceptions. This court does not try cases on assignments of error, but on bills of exceptions setting forth alleged errors. As we view it, the presentation of assignments of error but multiplies the work both of this court and of counsel for the parties. The bill of exceptions reflects the error, if any, and to require or permit assignments of error, which in civil practice ordinarily follow the motion for new trial, would be to put that much additional work on appellant's counsel, and upon our inspection of the record would compel a comparison of the assignments of error with the bills of exceptions, and could only tend to a multiplication of labor and to confusion. We have often said that assignments of error are not required under our rules. We consider the bills of exceptions.

Bill No. 1 sets out that the witness Williams, one of the alleged injured parties, was asked by state's counsel, "what did he say?" to which he replied, "I am going to kill you," and that he was also asked what he did after he got the blood washed off, and that he replied he sat down, and his wife went over to Mr. South's. The objection was that this was immaterial, irrelevant and prejudicial. Nothing is stated in the bill which shows the surroundings or antecedents of the matters inquired about, so that we might be informed from the bill itself of such facts as would support appellant's objection. The mere stating of objections ordinarily puts nothing before the appellate court. The trial court is judge of the matters involved, both as to form of the questions and their materiality, and, having held them correct in form and material in substance, we uphold his action, unless by the bill of exceptions itself it is shown that he was in error. Section 207, Branch's Ann. P. C., for collation of authorities; also subdivision 21 of notes under article 744, Vernon's Ann. C. C. P. Tested by these rules, not only does the bill of exceptions under consideration fall short, but also bills Nos. 2 to 8, inclusive.

The ninth bill of exceptions complains that the state was allowed to ask a witness, who had already said that he could not tell whether appellant or the complaining witness fired first, to state who fired the first shot, to which the witness replied, "Both about the same time." This answer of the witness comports entirely with what he had already said, and, if the question asked was held to be leading in form, no possible injury could result to the appellant.

Bill No. 10 urges that, upon his cross-examination of the complaining witness Tom Williams, appellant discovered that some years before he had been convicted of a felony. No objection was interposed to the witness giving oral testimony of the fact of his conviction, nor of his further oral statement that he had been pardoned. It is averred in the bill that appellant verbally asked a postponement of the trial of the case until he could investigate the truth of the matters relative to the conviction and pardon, but that the court refused the request. This refusal is made the subject of this bill of exceptions. We have examined each case cited in appellant's brief, but think them not applicable.

Appellant set up in his motion for new trial a number of matters relative to the question of the conviction and pardon of said witness, but we find in the record no bills of exceptions or statement of facts heard by the court relative to this extraneous issue, which was filed during term time. Since the rendition of the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, we have held without variance that one who desires to present to the appellate court complaint of the disposition of issues of fact contained in his motion for new trial must do so either by a bill of exceptions or by a statement of facts duly approved and filed during term time. The matters referred to, having not been carried either into a statement of facts or a bill of exceptions, present nothing for our review.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The principal witness for the state was Tom Williams. His testimony and that of the appellant, who became a witness in his own behalf, was in conflict. The conviction rests in the main upon the testimony of Williams. During the trial, appellant and his counsel, for the first time, learned that Williams had been convicted of a felony. Appellant then requested that Williams be recalled for further cross-examination, and the witness admitted that he had been convicted of a felony and sent to the penitentiary for a period of five years. Appellant requested the court to postpone the case...