
    ASHLOCK v. STATE.
    (No. 10550.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1927.
    Rehearing Denied March 2, 1927.)
    1. Criminal law &wkey;>1056(1) — Special charges requested and refused cannot be considered, in absence of exceptions.
    Special charges requested and refused cannot be considered on appeal from conviction for manslaughter, where no exceptions were reserved to trial court’s action in refusing to give special charges.
    2. Homicide <&wkey;340(4) — Too restrictive charge defining manslaughter held not ground for reversal, where conviction was for manslaughter, and minimum punishment was assessed.
    Language of court defining manslaughter held, not ground for reversal, though claimed to be too restrictive, where defendant was convicted of manslaughter, and given minimum punishment.
    On Motion for Rehearing.
    3. Criminal law <&wkey;1056(1) — Refusal of special charges, included in motion for new trial, but not excepted to, cannot be considered.
    Setting out refusal of special charges as part of motion for new trial held insufficient to bring matter to consideration of Court on Appeal, in absence of exceptions.
    4. Criminal law &wkey;>364(4) — Statements of defendant, made when officer reached him, within 15 minutes after hearing report of homicide, held part of res gestae.
    In prosecution for manslaughter, admitting evidence of statements made by defendant within approximately 15 minutes after report of homicide reached officers, when sheriff first reached him, held not error, statements being admissible as part of res gestae.
    5. Criminal law <&wkey;l092(11) — Court could modify bill of exceptions to admission of evidence by setting out testimony to show statements admitted were part of res gestae.
    Where, in prosecution for manslaughter, bill of exception was taken for admitting testimony of state’s witness as to statements made by defendant shortly after surrender to sheriff, court could modify bill of exceptions to show statements were admissible as part of res ges-tae by setting out testimony.
    Commissioners’ Decision.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    J. M. Ashlock was convicted of manslaughter, and he appeals.
    Affirmed.
    W. H. Russell, of Hereford, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BETHEA, J.

The appellant was convicted in the district court of Deaf Smith county for the offense of manslaughter, and his punishment assessed at two years in the penitentiary.

Prom an examination of the record we find for our consideration three special charges asked for by the appellant and refused by the learned trial judge, but neither by notation on same nor by separate bills of exception were there any exceptions reserved to the action of the trial court in refusing to give said special charges. With the record in this .shape, there is nothing for this court to review. There is one bill of exceptions in the record. This bill, as qualified by the learned trial judge, presents no error.

There are a number of exceptions and objections to the court’s charge, in which appellant complains of the language of the court defining manslaughter, contending that the charge was too restrictive, but, inasmuch as the appellant was convicted of manslaughter, and given the minimum punishment by the jury, these exceptions and objections to the charge present no error.

We have examined the facts, and find the same amply sufficient to support the verdict of the jury. The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion .for Rehearing.

LATTIMORE, J

Appellant insists that we should have considered his complaint of the refusal of his special charges Nos. 5., 6, and 7 which were refused by the trial court. Neither by notation on suqh refused charges, nor by separate bills of exception, was there any showing that the refusal of said charges was not acceptable to the accused. This was stated in our original opinion. Appellant insists that his setting out the refusal of the special charges as part of his motion for new trial was sufficient. We cannot agree to the proposition.

The only bill of exceptions appearing in the record was taken to the court’s action in' letting a' state witness testify to certain things said by appellant shortly after he surrendered to the officers. The qualification placed on the bill by the learned trial judge consists merely of a setting out of the testimony of other witnesses showing that the statements were made within approximately 15 minutes after the report of the matter reached the officers. The sheriff testified that he received a phonei message from some one to come at once to the Ashlock place; same being where the homicide occurred. He said it took him not over 5 minutes to get to the Ashlock place, and that he spent 3 or 4 minutes there, and then drove immediately to where appellant was in custody,, reaching that place in less than 5 minutes, and, when he first reached appellant, the latter made the statement complained of. We .think the court’s action in setting out the testimony showing that the statements were admissible as a part of the res gestae was correct, and that no error was committed in the admission of testimony as to such statements.

The motion for rehearing will be overruled- 
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