
    PERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    1. Criminal Law (§ 1092) — Bill of Exceptions — Qualifications—Remedy.
    Where the trial court improperly qualifies a bill of exceptions in approving it, the appellant’s remedy is 'by reserving an exception thereto.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, 2919; Dec. Dig. § 1092.]
    2. Criminal Law (§ 1092) — Bill of Exceptions — Waiver of Objection.
    Where appellant does not reserve an exception to the improper qualification of the bill of exceptions and have the record itself present the erroneous ruling complained of, but accepts the bill as qualified, it is too late to complain of the qualification on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092 ]
    3. Criminal Law (§ 1091) — Bill of Exceptions — Copy of Evidence.
    Where the trial court would not permit appellant to introduce a judgment and record, he should copy them in his bill of exceptions, to their exclusion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2S28-2833, 2843, 2931-2933, 2943; Dee. Dig. § 1091.]
    4. Witnesses (§ 49) — Impeachment—Conviction and Pardon.
    Where the court admits testimony of a witness that he has been convicted of a felony solely on the question of his credibility, and the witness also states orally at the time that he has been pardoned, it is not error to permit the witness to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 116-118; Dec. Dig. § 49.]
    5. Robbery (§ 20) — Indictment — Issues — Time of Offense.
    Under indictment for robbery on or about December 3d, testimony that it occurred on December 23d was admissible, since the state could prove the offense on any date within the period of limitation.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dec. Dig. § 20.]
    6. Robbery (§ 23) — Admissibility of Evidence-Circumstances as to Commission.
    In a prosecution for robbery, testimony for the state that on the night of the alleged robbery defendant asked witness to come and go with them, given in detailing a conversation with defendant in regard to the robbery, was admissible.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 29-31; Dee. Dig. § 23.]
    7. Criminal Law (§ 510%) — Evidence — Corroboration of Accomplice.
    In a prosecution for robbery, where it was necessary for the state to corroborate testimony of an accomplice, who had testified that an agreement to rob had been entered into at a certain place and time, testimony that the accomplice worked for witness and that defendant was with witness at such time and place was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1127-1136; Dec. Dig. § 510%.]
    8. Robbery (§ 23) — Evidence — Possession of Money.
    In a prosecution for robbery, evidence that defendant had no money prior to 'the date of the alleged robbery, but had money the day following, and paid back a loan, was admissible.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 29-31; Dec. Dig. § 23.]
    9. Criminal Law (§ 453) — Opinion Evidence-Identity.
    In a prosecution for robbery, the opinion oE the street car operator who was robbed that defendant was one of the men committing the robbery, the one who covered him with a pistol while the other got his money, was admissible; such opinion evidence being always admissible upon questions of identity.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1043; Dec. Dig. § 453.]
    10. Witnesses (§ 380) — Impeachment—Inconsistent Statement — Statutes.
    Under Code Cr. Proc. 1895, art. 795, modifying the rule that a party introducing a witness shall not attack his testimony by permitting such attack when facts stated by witnesses are injurious, it was proper for the state, after its own witness had testified that defendant was not the person guilty of the robbery charged, to show what he had said just before going on the stand about defendant’s guilt.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    11. Criminal Law (§ 351) — Evidence — Flight.
    It is always permissible to show flight against one charged with crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]
    12. Criminal Daw (§ 829) — Trial—Request —Instructions Given.
    Special charges covered, in so far as they are the law of the case, by the court’s main, charge, are properly refused.
    [Ed: Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    13. Criminal Law (§ 742) — Question for Jury — Testimony of Accomplices.
    In a prosecution for robbery, where an accomplice testified positively as to defendant’s participation, and was sufficiently corroborated to support a conviction, the court properly refused to instruct an acquittal.
    [Ed. Note. — For 'other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig. § 742.]
    14. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    In a prosecution for robbery, where witnesses for the state made it a case of positive testimony, it was not necessary to charge upon circumstantial evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Gent. Dig. §§ 1883-1888,1922, 1960; Dec-Dig. § 784.]
    15. Criminal Law (§ 1144) — Appeal—Presumptions.
    The Court of Criminal Appeals presumes that the trial judges will act fairly towards all attorneys appearing in their courts, and give all persons accused of crime an impartial trial, until it is made to appear otherwise by record.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144i]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ruby Perry was convicted of robbery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the penitentiary.

The state has moved to strike the bills of exception from the record because not filed within the time permitted by law. *The motion is well taken; but, should we consider same, they are brought to us in a way that appellant himself complains that they do not properly present the questions. Appellant filed a motion in the trial court, asking that the original statement of facts, in question and answer form, and as made out by the stenographer, be sent up, which request was by the court refused. He alleges that he did this in order that we might turn to this record, and decide whether he or the trial judge is right in certain contentions.

Our decisions aptly point out appellant’s remedy, if the court improperly qualifies a bill of exceptions in approving it. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368. If appellant does not except to the action of the court in doing so, but accepts the bill as thus qualified, it is too late to complain in this court of the qualification. These matters must be contested in the trial court, and the record presented in a way that it in and of itself presents the erroneous ruling complained of. This cannot be shown by ex parte statements in this court. We must accept the verified record sent to us, and act on the questions as thus presented.

In the first bill it is stated that the appellant objected to Oney Bompart being permitted to testify on the ground that he had been convicted and sentenced to the penitentiary. In approving this bill the court states: “This bill of exceptions is incorrect in almost every particular. The facts are that defendant’s attorney wanted to stop the examination in chief of the witness Oney Bompart, and prove by the witness orally that he had been convicted of robbery in connection with this case. The court ruled that this could not be done by oral proof, but the record proof must be offered. The defendant’s counsel then asked that the clerk be required to produce the record of the conviction. The court informed counsel that the cause was not tried in this court, but was transferred to the juvenile court. He took no exception to the language of the court, for the court was telling counáel as a matter of information where he could find record. It is untrue that defendant ever produced the record, or á certified copy of it, or that the court refused to allow time to prove the conviction by the record. The court did rule against him on his contention that he could prove the conviction orally by the witness for the purpose of disqualifying the witness. The court did allow defendant’s attorney on cross-examination of the witness for purposes of impeachment to prove by him that the witness had been convicted, and afterward pardoned by the Governor. The only exception he took was to the court’s ruling that the witness could not be disqualified by oral proof of his conviction. To this extent only is the bill approved.”

If, as now contended by appellant, he offered in evidence the judgment and record, and the court refused to permit him to introduce same, he should have copied in the bill presented the judgment and sentence which he offered in the bill of exceptions. This was not done, and the record before us does not contain the judgment nor sentence. If the court would not allow him time to get it at that time, he certainly had time during the trial to obtain it, and when he had done so he could have presented a written motion to strike out the testimony of this witness, attaching to it a copy of the judgment and sentence, and thus placed it in the record.

In the absence of any such showing, we must conclude that the court is correct in his qualification, and it has been the unbroken rule of decision in this court that where one proves orally by a witness that he has been convicted of a. felony, and the court admits it solely on the question of credibility of the witness, and the witness also states orally at the time he has been pardoned, it is not error to permit the witness to testify. McNeal v. State, 43 S. W. 792; Bratton v. State, 34 Tex. Cr. R. 447, 31 S. W. 379.

Those bills that complain that whereas the indictment alleged that “the offense was committed on or about the 3d day of December, that the court erred in permitting the witnesses to testify that the offense occurred on December 23d,” present no error. The state could prove any date within the period of limitation. Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160.

The state’s witness testified that on the night of the alleged robbery appellant asked Dodd to come and go with them, when “Dodd replied he would like to do so, but he had a case against him in county court.” Appellant complains that this testimony was admitted. The* state’s witness was detailing a conversation had with appellant in regard to committing this robbery, and this was a part of the same conversation, and was admissible.

The witness King was permitted to testify that Oney Bompart (state’s witness) worked for him, and that appellant was with the witness at the time and place stated by him, and he fixed the date by saying that he learned of the robbery next morning. All this testimony was admissible, as it was necessary for the state to corroborate the accomplice testimony, and the accomplice had testified that an agreement to rob had been entered into at King’s place of business at that time and on that date.

Mrs. C. .1. Brown testified that a few days before the robbery she had loaned appellant some money, and that on the day after the robbery appellant had paid her back. This was admissible as a circumstance in the case. The motorman being robbed of money on Friday night, it was permissible to show that appellant had no money prior to that date, but had money the day after the robbery.

One of the street car operators who was robbed testified that in his opinion appellant was one of' the men who committed the robbery—who covered him with a pistol while Bompart went through their clothing and got their money. In questions of identity it is always permissible for the witness to thus testify. Brooks v. State, 37 S. W. 739; Coffman v. State, 51 Tex. Cr. R. 486, 103 S. W. 1128; Tate v. State, 38 Tex. Cr. R. 261, 42 S. W. 595.

The witness Smallwood was introduced by the state; and, he giving testimony materially damaging to the state’s ease, counsel for the state stated they were taken by surprise, and were permitted to prove that he had made statements materially different to what he testified on the trial. Article 795 of the Code of Criminal Procedure of 1895 provides that “the rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.” In this case there can be no question that the testimony of Smallwood was injurious to the state, for he testified appellant was not the person who committed the robbery, and under such circumstances the court did not err in permitting .witnesses to state what Smallwood had said about appellant being the party who committed the robbery just before going on the stand. For a list of authorities, see section 1046, White’s Ann. Code Crim. Proc.

There was no error in permitting the state to show that shortly after the robbery search was made in Dallas for appellant, and he could not be found, and that he was subsequently arrested at Lubbock, Tex. It is always permissible to show the flight when charged with crime. Campos v. State, 50 Tex. Cr. R. 104, 95 S. W. 1042; Benavides v. State, 31 Tex. Cr. R. 173, 20 S. W. 369, 37 Am. St. Rep. 799, and cases cited in section 350, Branch’s Crim. Law. There are some other bills in the record of the same character as those herein ruled on, and we have carefully read each of them, although none of them were filed within the time allowed by order of the court and the laws of this state; but, in order that there might be no complaint, we have considered and find none of them present reversible error.

The special charges requested in so far as they are the law of the case were fully covered by the court’s main charge, and it was not error for the court to refuse to instruct the jury peremptorily, to acquit the defendant. Bompart positively testifies to appellant’s participation in the robbery; he is corroborated in many particulars, and the testimony of W. L. Click would be sufficient corroboration of the accomplice to support a conviction.

It was not necessary for the court to charge on circumstantial evidence. The witnesses Bompart and Click made it a case of positive testimony. See section 203, Branch’s Crim. Law. The court’s charge on accomplice testimony has been frequently approved by this court (Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101); also the charge on alibi. In fact, the court’s charge fully submits every issue raised by the testimony, and the judgment should be affirmed.

We regret to have records come to us in the condition of this case, where counsel for appellant complains so bitterly of the trial court, and especially his action in regard to his bills of exception, but counsel must bring these matters before us in a way authorized by the law; otherwise we cannot review the matter. This court must and does presume that the trial judges in this state will act fairly towards all attorneys appearing in their court, and give to persons accused of crime a fair and impartial trial, and this presumption will be indulged until by the record it is made to appear otherwise.

The judgment is affirmed.  