
    RUTHERFORD v. STATE.
    (No. 9401.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    1. Criminal law <3=>649(l) — Refusal to delay trial for investigation relative to employment of counsel by private prosecution held not error.
    In prosecution for unlawfully carrying pistol, where, preliminary to selection of jury, attorney testified that he was employed by sons of one whom defendant had killed, refusal to delay trial for further investigation on defendant’s averments that funds were contributed by other persons held not error.
    2. Jury <@=»103(9) — Jurors not disqualified by opinion as to related offense.
    On trial for carrying pistol on occasion when it was claimed accused killed G., it was not error to overrule challenges to jurors because of opinions formed from reading newspapers touching the killing of G., where they had no opinion as to accused’s guilt of charge on - trial.
    3. Criminal law <@=>365 ( 0 — In prosecution for unlawfully carrying pistol, evidence of homicide committed held part of res gestm.
    In prosecution for unlawfully carrying pistol, evidence that defendant had shot two persons, killing one of them, held properly admitted as part of res gestas.
    4. Weapons <@=>I7(4) — Evidence held to sustain conviction for unlawfully carrying weapons.
    Evidence held, to sustain conviction for unlawfully carrying weapons.
    5. Criminal law <®=>I09I (2, 15) — Bills of exceptions in and of themselves must fully disclose alleged error, and cannot be aided by statement of facts.
    Bills of exceptions must be so explicit that matter may be comprehended without recourse to inferences, and must be so full that in and of themselves they- will disclose all that is necessary to make manifest the alleged error, nor can statement of facts be relied upon in aid of bills of exceptions, unless specific reference is made to some particular part thereof.
    6. Criminal law <@=>1091 (8) — Bill of exceptions complaining of argument of counsel held insufficient.
    Bill of exceptions .complaining of argument of counsel, but wholly failing to set out facts making it clear that argument was unwarranted and injurious, held, insufficient.
    Appeal from Coleman County Court; S. J. Pieratt, Judge.
    Dave Rutherford was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    W. Marcus Weatherred, of Coleman, for appellant.
    T. H. Strong, Co. Atty., and Critz & Woodward, all of Coleman, and Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

The offense is the unlawful carrying of a pistol; punishment fixed at a fine of $200.

The state’s witness Martin testified that he saw the appellant on the streets of Santa Anna with a pistol in his hand. He was on “all fours.” Joe Griffith was standing about 20 feet away. The witness took the pistol from the appellant. Appellant had been shot through the head. The witness did not know where he had obtained the pistol. According to Connerly, a witness for the state, he was a constable. He saw the appellant on the night of February 16th on the streets of Santa Anna with a pistol in his possession. Appellant shot Joe Griffith, killing him, and then shot the witness. Joe Griffith also shot the appellant. The witness said he did not know where the appellant got the pistol. From his testimony .we take this quotation:

“I saw it first after it was fired. When I first saw the defendant, he was going out of the east end of the alley in Santa Anna in a buggy. Deceased, Joe Grjffith, called him to stop. This was the way the defendant was going at the time, in the practical direction of the defendant’s'home, and it was about &:30 or 10 o’clock at night.”

On redirect examination by the state, this witness testified as follows:

“When Joe Griffith called for the defendant to stop, the defendant got out of the buggy, and he and deceased began to talk, and I went on towards the horse and buggy and didn’t hear what they said. * * * I don’t know whether he was on his way home or not.”

The state was represented by an attorney employed by the private prosecution. Preliminary to the selection of the jury," appellant sought to ascertain the source of employment. The attorney who appeared for the prosecution testified on the hearing of the motion that he was employed by the sons of deceased Griffith. He also testified that the money which had been paid him had been borrowed by the sons of deceased at the First National Bank of Santa Anna; that they had given him a note for the remainder of the fee, which note was still unpaid. Appellant then requested that the hearing be postponed, averring that he believed the funds were contributed by other persons. In refusing to delay the trial for further investigation of the matter the court, in our judgment, committed no error.

The complaint of the refusal to sustain the challenges for cause against various jurors because of opinions formed from reading newspapers touching the tragedy in which Joe Griffith was killed, in view of the explanation of the trial judge that none of the jurors had an opinion touching the guilt of the appellant of the charge on trial, is without merit.

Testimony that Joe Griffith was killed by the appellant and that the witness Con-nerly was shot was not improperly received. These acts of the appellant were res gestae of the homicide, in that they were so interwoven with the possession of the pistol that, in developing the transaction, the exclusion of them was not practicable.

The complaint of the insufficiency of the evidence, we think, was not tenable. The circumstances were sufficient to lead to the conclusion that the appellant was traveling upon the streets with a pistol either upon his person or in his buggy. The case of Pyka v. State, 80 Tex. Cr. R. 644, 192 S. W. 1066, wherein the sole proof was that Pyka, during an altercation, picked up a pistol from the ground and struck his adversary, is not deemed in point; neither are the precedents which are found collated in the opinion in that case.

The attorney for the prosecution, in his argument, used the following language:

“If you had such men as Will Coulson and you, Mr. Ashmore, that accidentally violated the law, it would be a different proposition, but here you have a man that assassinated one man and tried to another, and if you give him the least fine would be ridiculous. Give him $250 fine and a spell in jail and let him know that you and the public don’t indorse it.”

Exception was reserved to these remarks at the time and a special charge withdrawing them was prepared, presented, and refused. The bill of exceptions complaining of this argument wholly fails to set out any facts which would make clear to us that the argument was uncalled for and injurious. 1 Mr. Vernon's Annotated G. C. P., on page 537, cites a great many authorities supporting the proposition that a bill of exceptions should be so explicit that the matters may be comprehended without recourse to inferences, and so as to enable the appellate court to fully understand all the facts on which the rulings depend. It must set out the proceedings below sufficiently to enable the court to know that an error has been committed, and be so full that in and of itself it will disclose all that is necessary to make manifest the alleged error, and must state enough of the evidence or facts proven to render intelligible the rulings involved, and it cannot be aided either by a statement in reply to a motion for a new trial, or by the statement of facts, nor will the appellate court supply omissions or aid the bill by inferences or presumptions. For aught this court can learn from this bill of exceptions, the prosecutor was entirely justifiable in the argument.

We must decline to look to a statement of facts in order to determine the error in a bill of exceptions, unless specific reference to some particular part of such statement of facts is made in the bill. To do so would be a violation of the rule laid down in opinions almost without number rendered by this court, and would be to lay down a precedent which would involve us in endless and hopeless work in trying to discover from the statement of facts the soundness of matters complained of in bills of exception which did not follow the rules. What we have just said is true of other bills complaining of arguments.

Finding no error in the record, the judgment will be affirmed. 
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