
    BAXTER v. STATE.
    (No. 4462.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Criminal Law <®=> 1091(3) — Appeal-Bill of Exceptions — Statement.
    A bill of exceptions to the action of the court in allowing a witness who had been in the penitentiary to testify, on the ground that it was not sufficiently shown that he had regained his rights of citizenship, should state the evidence given by such witness to enable the appellate court to determine its materialty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2831.]
    2. Witnesses <@=>78 — Disqualification-Burden of Proof.
    As a general rule, a party desiring to exclude the testimony of one convicted of a felony must prove his disqualification by the record showing final conviction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200.]
    3. Criminal Law <@==>1144(12) — Appeal and Error^-Review — Presumptions.
    In the absence of any recital in the bill of exceptions to the contrary, the appellate court will be bound to assume that the record showing the conviction of a witness of a felony was not introduced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3029, 3030.]
    4. Homicide <@=>158(1) — Evidence — Admissibility.
    Where witnesses on behalf of the state testified that before the homicide defendant had showed them a lead bullet, stating that he had two more and stating in substance that he was going to kill the deceased, the rejection of testimony of a witness offered to rebut such evidence was not error, where it does not appear from the Mil of exceptions that such witness was present and heard the conversation testified to, nor when the alleged conversation which he offered to testify to took place — whether before or after the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 293.]
    5. Criminal Law <@=>1144(12) — Appeal and Error1 — Review—Presumptions.
    The legal presumption on appeal is that the ruling of the trial court in excluding evidence was correct, unless the contrary is explicitly shown by the bill of exception's.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3029, '3030.]
    6. Criminal Law <@=>1144(18) — Appeal and
    Error — Record—Presumption.
    Where the evidence heard regarding the matters mentioned in a motion for new trial was not brought before the appellate court in any manner by the record, the correctness of the trial court’s conclusion overruling the motion for new trial must be presumed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901', 3036.]
    Appeal from District Court, Rains County; Wm. Pierson, Judge.
    John Baxter was convicted of murder, and he appeals.
    Affirmed.
    Chas. L. Hubbard and W. F. Shipp, both of Emory, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for a term of 11 years for the murder of Calvin Sellars.

Appellant was the son-in-law of deceased. There was some evidence of bad feeling between them. Mrs. Sellars, mother of deceased, an eyewitness, testified: That her son traveling on horseback stopped at her gate and talked a few moments with her, and as he was about to leave remarked, “I see John now.” That he then rode away, meeting the appellant, John Baxter, about 90 steps from the witness. That as they met deceased said, “God damn you, I see you are carrying your gun for me.” That appellant immediately jumped out of his buggy and shot the deceased while deceased was on his horse, and ■ apparently had not stopped his horse, and that after he fell he had the bridle reins wrapped around his arm. Appellant’s version was that when he and deceased met, and after deceased used the language above quoted, about carrying a gun for him, deceased rode back toward him', reached for a piece of timber which was lying on the ground, and said, “God damn you, I will break your neck,” at which time appellant shot. There was evidence of previous bad feeling between the two. The issues of self-defense and manslaughter were both raised, and these, together with the issue of murder, were submitted to the jury in a charge of' which there is no complaint.

The appellant’s second bill of exceptions contains the following:

“The state offered as a witness one Jess Payne, and the defendant objected to said Payne testifying for the reason that the said Payne had been to the penitentiary, being sent there for introducing stolen property into the state, that the said Payne at the time he was offered as a witness did not have his pardon with him, but testified that he had been granted a pardon, that his citizenship had been restored, that he paid his poll tax, and worked the road, when the rule of evidence is that if the original cannot be found accounting for same is not sufficient in criminal cases of this Kind, but a copy of same is next best evidence and shall be introduced for the purpose of establishing whether the party has a pardon that gives him the lights • of a citizen, but over the objection of the defendant the said Payne was allowed to testify and give in evidence very damaging evidence against this defendant, which was error on the part of the court in permitting same.”

It will be noted that the bill does not state the evidence given by Payne. This should be done to enable this court to determine its materiality. Clayton v. State, 67 Tex. Cr. R. 311, 149 S. W. 119; Todd v. State, 57 Tex. Cr. R. 15, 121 S. W. 506; Canon v. State, 59 Tex. Cr. R. 398, 128 S. W. 141; Ellis v. State, 59 Tex. Cr. R. 630, 130 S. W. 171; Fifer v. State, 64 Tex. Cr. R. 203, 141 S. W. 989, and numerous cases cited in Yernon’s Ann. C. C. P. p. 542, note 29, and Branch’s Ann. P. C, p. 135. Granting that the witness gave material testimony, we do not think there is error shown in permitting him to testify.

The general rule is that a party desiring to exclude testimony of one 'convicted of a felony must prove Ms disqualification by the record showing final conviction. Vernon’s Ann. C. C. P. p. 703; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135. In the absence of any recital in the bill to the contrary, tMs court would be bound to assume that the record showing Payne was a felon was not introduced. Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W. 747; Vernon’s Ann. C. C. P. art. 744, subdiv. 21, and notes page 537, and cases cited. Under the decisions of tMs court, we must accept this statement of the trial judge as true. Vernon’s Ann. C. C. P. art. 744, p. 556, note, subdiv. 35, citing Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 107, and numerous other cases. In view of this qualification of the bill and the other matters stated, we would not be authorized to decide that there was error in permitting Payne to testify.

Prom bill of exceptions No. 1 we take the following quotation;

“On the trial of the above styled and numbered cause, the defendant offered as a witness one Doc Price, who would have testified that he (Doc Price) bad a conversation with the defendant in regard to running or molding leaden bullets for the purposes of killing hawks. This was very material from the standpoint of the defendant, in this: That the state undertook to prove and show motive on the part of the defendant to make out its cause of murder, the witnesses Payne and son having testified that the defendant had a motive when he told them that ‘if the deceased swallowed one of these he would not whip his wife again’; the court having sustained an objection to same raised by the state’s counsel on the ground that same would be self-serving declarations on the part of tbe defendant. That the said Price would have testified that the name of the deceased Sellars was not named or mentioned at this time and could not have been a declaration on the part of the defendant that would be or in any wise be self-serving.”

Tbe statement of facts shows that Melton Payne testified on behalf of the state that about a month before tbe homicide appellant showed the witness a lead bullet, stating that he made it and had two more, and stated in substance that he was going to kill deceased. Another witness, J. F. Payne, appears from the statement of facts to have testified to substantially tbe same conversation. It is assumed that the testimony of Price mentioned in the bill of exceptions was offered to rebut the evidence of the two Paynes. It does not appear from the bill that Price was present and heard the same conversation testified to by tbe Paynes, nor when tbe alleged conversation wMcb Price offered to testify to took place — whether before or after tbe homicide. The legal presumption is that the ruling of the trial court in excluding evidence was correct, unless the contrary is explicitly shown by tbe bill of exceptions. Branch’s Ann. P. C., § 207, p. 132; Eldridge v. State, 12 Tex. App. 208; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; Anderson v. State, 70 Tex. Cr. R. 594, 157 S. W. 1197.

Appellant insists that tbe evidence was insufficient. We bave carefully read tbe statement of facts, and, without further quoting it, will say we cannot agree with this contention of appellant.

There are several matters mentioned in the motion for new trial relating to the venire and other matters occurring upon the trial of the case. These all depend upon the facts, and it appearing from the judgment overruling the motion for new trial that the court heard evidence touching these matters, and the evidence so heard not being brought before this court in any manner by the record, the correctness of the trial court’s conclusion must be presumed.

Finding no error in tbe record, it is ordered that the judgment of the lower court be affirmed. 
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