
    BROWN v. STATE.
    (No. 8702.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    On Motion for Rehearing, June 10, 1925.)
    1. Criminal law <&wkey;l 114(2) — Assignments pf error not considered.
    The Court of Criminal Appeals will consider only bills of exceptions, and will not try case on assignments of errors.
    2. Criminal law <&wkey;l 141 (2) — Trial court’s admission of evidence over objection of materiality upheld, unless shown erroneous by bill of exceptions.
    The trial court being judge as to materiality of testimony, Ms action in admitting testimony and hplding it correct in form and material in substance will be upheld, unless by bill of- exceptions itself it is shown that he was in error.
    3. Criminal law &wkey;>l 120(8) — Bill of exceptions complaining of admission of testimony, but not stating surrounding matters, presents nothing for review.
    Bill of exceptions; complaining of admission of certain testimony, objected to as immaterial, irrelevant, and prejudicial, presents nothing for consideration, where surroundings of'matters inquired about are not shown, as mere stating of objections ’ordinarily puts nothing before appellate court.
    4. Criminal law &wkey;>ll70i/2(2) — Repetition of question already answered held not prejudicial, where similar answer given.
    Asking witness leading question as to who fired first shot, though he already had stated he could not tell, did not prejudice defendant, where witness’ reply comported with what,he had already said.
    On Motion for Rehearing.
    5. Witnesses c&wkey;78 — Disqualification of witness shown, when oral testimony of conviction of felony received without objection.
    When oral testimony of conviction of witness of felony is received without objection from adverse party, Ms disqualification as wit-, ness is thereby shown.
    6. Criminal law i&wkey;>400(3) — Witnesses <&wkey;>49 — . Competency of witness shown to be convicted felon restorable only by proof of pardon.
    When the witness is shown to be a convicted felon, his competency as witness can be restored only by proof of his pardon, and, on offer of parol proof thereof, objection .that it is not best evidence should be sustained; as against such objection, pardon must be proved by written instrument, on which reliance is bad for restoration.
    7. Criminal law <&wkey;649 (2)— Postponement improperly refused on eliciting fact that principal state witness had been convicted of felony.
    Where defendant elicited from principal state witness that witness bad been convicted of a felony, court should have grantedít defendant’s request for postponement, to obtain certified copy of judgment of conviction.
    8. Criminal law &wkey;>l 124(4) — Action of court in overruling motion for new trial not reviewed, in absence of preservation of evidence on which court acted.
    . Where court, on bearing of motion fo,r new trial, bears evidence other than that embraced in exhibits made part of motion, bis action' will not be reviewed, in absence of bills of exceptions or statement of facts filed during term, preserving evidence on which court acted in overruling motion.
    9. Criminal law <&wkey;l 144(18)— Presumed that exhibits attached to motion for new trial were considered, where .not shown that evidence was heard on motion.
    Where there is nothing in record suggesting that evidence was heard on hearing of motion for new trial, presumption is that exhibits made part of it were considered, and on appeal court will take exhibits into account.
    10. Criminal law &wkey;>942(l) — Denial of new trial for newly discovered evidence showing disqualification of principal state witness held error.
    Denial of new trial for newly discovered evidence, showing that under Oode Or. Proc. 1911, art. 788, principal state witness was disqualified from giving testimony because he had been convicted of a felony, and that records failed to show any pardon, held error.
    Appeal from District Court, Matagorda County; M. S. Munson, Judge.
    Austin Brown was convicted of assault to murder, and appeals.
    Reversed and remanded on rehearing.
    W. S. Holman, of Bay City, for appellant. Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Matagorda county of assault to murder, and his punishment fixed at two years in the penitentiary.

It is shown that on the occasion in question both appellant and the' injured party tools part in a shooting. There had been a prior difficulty between them. According to the testimony of the state witnesses, Williams and his wife, the assaulted parties, in their wagon started to town to make complaint against appellant. Their route ran past appellant’s house, and, fearing trouble they took a shotgun with them. While on their way, appellant, on horseback, chased them at full speed, and shot twice at them with a pistol, and they returned the fire. The evidence sharply conflicted, but there are facts sufficient to support the jury’s -finding.

Appellant files 16 assignments of error. There are 10 bills of exceptions. This court does not try eases on assignments of error, but on bills of exceptions setting forth alleged errors. As we view it, the presentation of assignments of error but multiplies the work both of this court and of counsel for the parties. The bill of exceptions reflects the error, if any, and to require or permit assignments of error, which in civil practice ordinarily follow the motion for new trial, would be to put that much additional work on appellant’s counsel, and upon our inspection of the record would compel a comparison of the assignments of error with the bills of exceptions, and could only tend to a multiplication of labor and to confusion. We have often said that assignments of error are not required under our rules. We consider the bills of exceptions.

Bill No. 1 sets out that the witness Williams, one of the alleged injured parties, was asked by state’s counsel, “what did he' say?” to which he replied, “I am going to kill you,” and that he was also asked what he did after he got the blood washed off, and that he replied he sat down, and his .wife went over to Mr. South’s. The objection was that this was immaterial, irrelevant, and prejudicial. Nothing is stated in the bill which shows the surroundings or antecedents of the matters inquired about, so that we might be informed from the bill itself of such facts as would support appellant’s objection. The mere stating of objections ordinarily puts 'nothing before the appellate court. The trial court is judge of the matters involved, both as to form of the questions and their materiality, and, having held them correct in form and material in substance, we uphold his action, unless by the bill of exceptions itself it is shown that he was in error. Section 207, Branch’s Ann. P. C., for collation of authorities; also subdivision 21 of notes under article 744, Vernon’s Ann. C. O. P. Tested by ’ these rules, not only does the bill of exceptions under consideration fall short, but also bills Nos. 2 to 8, inclusive.

The ninth bill of exceptions complains that the state was allowed to ask a witness, who had already said that he could not tell whether appellant or the complaining witness fired first, to state who fired the first shot, to which the witness replied, “Both about the same time.” This answer of the witness comports entirely with what he had' already said, and, if the question asked was held to be leading in form, no possible injury could result to the appellant.

Bill No. 10 urges that, upon his cross-examination of' the complaining witness Tom Williams, appellant discovered that some years befo,re he had been convicted of a felony. No objection was interposed to the, witness giving oral testimony of the fact of his conviction, nor of his further oral statement that he had been pardoned. It is averred in the bill that appellant verbally asked a postponement of the trial of the case un? til he could investigate the truth of the matters relative to the conviction and pardon, but that the court refused the request. This refusal is made the subject of this bill of exceptions. We have examined each ease cited in appellant’s brief, but think them not applicable.

Appellant set up in his motion for new trial a number of matters relative to the question of' the conviction and pardon of said witness, but we find in the record no bills of exceptions or statement of facts heard by the court relative to this extraneous issue, which was filed during term time. Since the rendition of the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, we have held- without variance that one •who desires to present to the appellate court complaint of the disposition of issues of fact contained in his motion for new trial must do so either by a bill of exceptions or by a statement of facts duly approved and filed during term time. The matters referred to, having not been carried either into a statement of facts or a bill of exceptions, present nothing for our review.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The principal witness for the state was Tom Williams. His testimony and that of the appellant, who became a witness in his own behalf, was in conflict. The conviction rests in the main upon the testimony of Williams. During the trial, appellant and his counsel, for the first time, learned that Williams had been convicted'of a felony. Appellant then requested' that Williams be recalled for further cross-examination, and the witness admitted that he had been convicted of a felony and sent to the penitentiary for a period of five years. Appellant requested the court to postpone the case until a certified copy of the judgment of conviction from Montgomery county could be obtained. This the court refused.

Appellant also insists that Williams’ admission that he was a convict would disqualify him, unless the pardon proclamation was proved by the best evidence. The court permitted Williams to testify that he had been pardoned. The bill of exceptions is somewhat meager, but sufficient, we think, to reveal the facts' stated. We -understand that when, without objection from the adverse party, oral testimony of conviction of a felony’ is received, the disqualification of the witness is thereby shown. See White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; Moore v. State, 39 Tex. Cr. R. 266, 45, S. W. 809; Price v. State, 66 Tex. Cr. R. 400, 147 S. W. 243; Watts v. State, 67 Tex. Cr. R. 4, 148 S. W. 310; Matthews v. State, 72 Tex. Cr. R. 654, 163 S. W. 725; Branch’s Ann. Tex. P. C. § 18, p. 10.

When, by either the record of conviction or by secondary evidence, without objection, a witness is shown to be a convicted felon, his competency as a witness can be restored only'-by proof of his pardon. When parol proof of a pardon is offered, objection that it was not the best evidence should be sustained, for against such objection the pardon must be proved by the written instrument upon which reliance is had for the restoration. See Underhill’s Crim. Ev. (3d. Ed.) § 334; Thompson v. State, 84 Tex. Cr. R. 148, 205 S. W. 988. In the present case, the appellant and his counsel, upon learning that Williams was a convicted felon, pursued the procedure suggested in Smiley’s Case, 80 Tex. Cr. R. 280, 189 S. W. 482, wherein it is said:

“If this was the first intimation that appellant received that Burks had served a term in the penitentiary, he should then have asked a postponement of the case until he could send to Waco and get a copy of the sentence, if he desired to do so, setting up the fact that he had not prior to this time been aware of such fact.”

The request for postponement should have been granted.

Upon the original hearing, we declined to consider the matter of newly discovered evidence, under the impression that the new evidence was not preserved by bills of exceptions filed during the term. It is the established rule that when, upon the hearing of a motioñ for new trial, the court hears evidence other than that which is embraced in the exhibits attached to and made a part of the motion, his action, will not be reviewed, in the absence of a -bill of exceptions or statement of facts, filed during the term, preserving the evidence upon which the court acted in overruling the motion. See Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reese v. State, 94 Tex. Cr. R. 221, 249 S. W. 857; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

Upon further examination of the present record, we find that there is nothing which suggests that evidence was heard on the hearing of the motion for new trial. With the record in that condition, the presumption is indulged that, in passing upon the motion, the exhibits made a part of it were considered, and this court, in testing the correctness of the action of the trial court, will take the exhibits into account. This matter is discussed in some detail in Crouchett’s Case (Tex. Cr. App.) 271 S. W. 99.. The exhibits consist of certified copies of the records showing that the witness Tom Williams was convicted of a felony; that the penalty assessed was confinement in the penitentiary for a period of five years; that ho was sentenced, and incarcerated in the penitentiary, and served his time; that the records in the office of the secretary of state fail to show that any pardon was ever issued, restoring his citizenship. Williams gave important testimony in favor of the state upon the main issue of guilt or innocence, which testimony was in confiiet with that of the appellant, and manifestly entered into the verdict of guilty. From the newly discovered evidence it is apparent that under the statute of this state (article 788, O. O. P.) Williams was disqualified from giving the testimony. It is believed that, in overruling the motion for new trial, the court fell into error. See Barber v. State, 87 Tex. Cr. R. 585, 223 S. W. 457, and cases therein cited.

For the reason stated, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded. 
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