Graham v. State

• Decision Date: 11 June 1890
• Court: Texas Court of Appeals
• Parties: GRAHAM <I>v.</I> STATE.

13 S.W. 1010

GRAHAM

v. STATE.

Court of Appeals of Texas.

June 11, 1890.

Appeal from district court, Coryell county; S. F. DUFFIE, Special Judge.

Vardiman, White & Taylor and Crain & Holbrook, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Most of the errors complained of in the defendant's motion for new trial and assignments of error in the court below, and so ably argued and discussed in the brief of counsel for appellant in this court, relate to the charge of the trial court. But no exceptions were reserved to the charge, and there were no refused special instructions for defendant. The charge may be liable to some of the criticisms urged against particular portions, but, there being no special exceptions, and none of the supposed errors being of a fundamental character, or such as, under all of the circumstances of the case, were calculated to prejudice the rights of the accused, we would not be warranted in revising, much less reversing, the judgment on account of them. But three bills of exceptions are found in the record. The first is to the overruling of the defendant's second application for a continuance; the second is to the refusal of the court to permit the defendant to introduce certain testimony by his witness, Miss Mary Doty; and the third is to the admission of certain testimony over objection of defendant. It is unnecessary to discuss the application for continuance. The second bill of exceptions is insufficient and defective, because it fails to disclose the object and purpose of the proposed evidence, and will not, therefore, be considered on appeal. May v. State, 25 Tex. App. 114, 7 S. W. Rep. 588. As to the third bill of exceptions, it is made to appear that the state's counsel was permitted, over objections of defendant, to ask the witness Clawson to describe the appearances of certain bruises found upon the forehead and chin of deceased, and whether they were "made with a hard, rough substance, or otherwise." To this question the witness answered: "Said bruises seemed to have been made with a rough, hard substance." Defendant's only objection to the testimony was "that the witness could only describe the bruises, and let the jury conclude with what they were made." No material error is pointed out by the objection. The rule is that "opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made...