
    JASPER v. STATE.
    (No. 8366.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1924.
    Rehearing Denied Dec. 17, 1924.)
    1. Criminal law <&wkey;l 119(2) — Bills of exception relating to questions asked not considered because omitting answers claimed to have been' given. '
    
    Bills of exception relating to questions asked held not entitled to consideration because omitting answers claimed to have been given.
    2. Criminal law <&wkey;1173(2) — Refusal to give written instruction to disregard improper argument held not error, in view of court’s remarks and other instruction.
    Refusal to give written instruction to disregard improper argument of prosecuting attorney held not prejudicial, in view of court’s remark to desist and not refer to the argument again, and his instruction that the statement was improper, and should not be considered for any purpose.
    3. Criminal law <&wkey;72l 1/2(1) — Prosecuting attorney held justified in commenting on fact that state could not use accused’s wife as witness.
    Where accused’s wife was in a position to have known material facts, but was not used as a witness by accused; prosecuting attorney held justified in commenting on fact that state could not use accused’s wife as a witness.'
    4. Criminal law <&wkey;l 144(18) — Order overruling motion for new trial, based on newly discovered evidence, presumed correct, in absence of showing of evidence heard on motion.
    Order overruling motion for new trial, based on newly discovered evidence, will be presumed correct, where there is no bill of exception incorporating the evidence heard-upon the motion, and record does not contain a statement of facts proved on the motion.
    Appeal from District Co-urt, Jefferson County; E. A. McDowell, Judge.
    Connie Jasper was convicted of murder, and he appeals.
    Affirmed.
    
      Blain & Jones, of Beaumont, for appellant.
    Tom Garrard, State’s Atty.. and Grover C. Morris, Asst State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for murder with punishment assessed at 10 years’ confinement in the penitentiary.

Appellant hilled Claude Nichols in July, 1921. Appellant and his wife had separated in May preceding the hilling. She was conducting a restaurant and rooming house. Deceased was one of the roomers. Appellant contends that deceased was the cause of the estrangement between accused and his wife. At the time of the hilling, deceased was seated on a bench in front of the restaurant. Appellant fired two shots with a. double barrel shotgun, one while deceased was sitting on the bench and the other as he entered the door of the restaurant. Appellant’s contention was that deceased placed his hand in his pocket and declined to remove it at the command of appellant, and that from this conduct on the part of deceased appellant thought his life was in danger. A further statement of facts is not thought to be necessary.

We find four bills of exception in the record which-we regret may not be considered. They all relate to questions asked appellant upon cross-examination. The bills recite that the questions were answered, but omit to show what the answers were. In such condition the bills are defective and present no matter calling for our consideration. See authorities collated under section 210, Branch’s Ann. P. C., and under note 21, article 744, C. C. P.

Prosecuting attorney in his argument said: “Gentlemen, there is a rule of law in this state which a woman cannot testify against her husband.” Upon objection being made, the court told the attorney to desist and not to refer to same again, and instructed the jury that the statement was improper, and that they should not consider it for any purpose. In view of this proceeding we see no serious error in refusing a written instruction for the jury to disregard the argument. The bill gives us no information as to what subject the prosecuting attorney was discussing. Clara Jasper, appellant’s wife, was shown by the evidence to have been, in a position to have known material facts. She was not used as a witness by appellant, and could not be so used by the state. If this was the matter to which state’s counsel was referring, he had a right to comment on it. . '

One ground upon which a new trial was sought is alleged newly discovered evidence. The order of the court recites that evidence was heard upon the motion and that exception was reserved to overruling it. No bill of exception is presented incorporating the evidence so heard, neither does the record contain a • statement of the facts proven on the motion. In such state of the record we must presume the action of the court to have been correct as nothing appears showing the contrary. Cade v. State, 96 Tex. Cr. R. 523, 258 S. W 484; Harcrow v. State (Tex. Cr. App.) 261 S. W. 1046; Redford v. State (Tex. Cr. App.) 262 S. W. 766; Hicks v. State (Tex. Cr. App.) 261 S. W. 579; McKinzie v State (Tex. Cr. App.) 260 S. W. 585.

The record presenting no errors which may be considered, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant makes vigorous complaint of our holding that his Bills of exception do not properly present any error because same do not set out the answers which would have been given, or which were given to the questions which appear in said bills. This court seems to have almost, if not uniformly, held that, where the complaint is of the answer, such answer should appear in the bill. Charles v. State, 87 Tex. Cr. R. 233, 222 S. W. 255; Taylor v. State, 87 Tex. Cr. R. 330, 221 S. W. 611; Pruitt v. State, 88 Tex. Cr. R. 203, 225 S. W. 525; Gates v. State, 88 Tex. Cr. R. 570, 227 S. W. 953; Lane v. State, 89 Tex. Cr. R. 140, 229 S. W. 547; Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005; Smith v. State, 90 Tex. Cr. R. 24, 232 S. W. 497; Polk v. State, 91 Tex. Cr. R. 354, 238 S. W. 934; Turner v. State, 93 Tex. Cr. R 104, 246 S. W. 87; Hays v. State, 94 Tex. Cr. R. 498, 252 S. W. 521; Bradford v. State, 95 Tex. Cr. R. 490, 255 S. W. 405; Sullivan v. State, 95 Tex. Cr. R. 527, 254 S. W. 966; Russel v. State, 96 Tex. Cr. R. 105, 256 S. W. 283; Smith v. State, 90 Tex. Cr. R. 24, 232 S. W. 497. In these cases will be found frequent announcement of the fact that this court will not look through statements of facts to ascertain those things which may be necessary to show errors complained of in defective bills of exception.

The Waters Case, 91 Tex. Cr. R. 592, 241 S. W. 496, and the Tijerina Case, 45 Tex. Cr. R. 182, 74 S. W. 913, which are cited by appellant, are cases in which the questions themselves were held objectionable regardless of the answers; it being stated that the questions manifested the purpose of the state to create prejudice against the accused, and this was ground of the objection. The Waters Case, supra, was not reversed only for the error just discussed, but was one of the errors mentioned by the court in its opinion. In that case the answers of the witness were included in the bill of exceptions, and it was also shown that in connection with asking the questions complained of, when interrogated by the court as to whether there was any basis for such questions, the prosecuting attorney stated that there was. This illustrates the difference in principle between our conclusion in this ease and that reached in the eases .cited by appellant. There is nothing in the questions asked by appellant evidenced by the complaints in the instant case which shows any purpose on the part of the state to create a prejudice against the accused. For instance, he was asked in the matter complained of in bill of exceptions No. 1 of what offense he had been convicted in the city court on a certain date. There is nothing in the mere asking of this -question which would lead this court to conclude that the expected answer would not be some connected offense or some offense involving moral turpitude. Substantially the same reasoning might be applied to the question appearing in bill of exceptions No. 2. As .stated in the original opinion, the state’s theory was that the killing of deceased was because of jealousy of appellant’s divorced wife. The question set out in bill of exceptions No. 2 was: “Do you know when she filed the divorce petition, or suit, against you?” Manifestly this question could become material from many possible aspects of the case. We set these out as illustrative of the difference between our view in the cases cited by the appellant and in this case.

Being unable to agree with appellant, and being of "opinion that the case was properly disposed of on original presentation, the motion for rehearing will be overruled. 
      ÉmoEor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     