
    SIARS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1911.)
    1. Criminal Law (§ 1036) — Appeal—Questions Review able — Rulings on Evidence.
    Where the district attorney did not attempt to prove that accused was guilty of other-offenses to affect his credibility, though the court ruled that such testimony was admissible, and did not attempt to prove that accused had' made a statement to a justice, but accepted accused’s testimony that he had not made the statement, the rulings on the e.vidence presented no error.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2639-2641; 1036.] see Criminal Dec. Dig. §
    2. CRIMINAL Law (§ 1036) — Appeal — Evidence — Objections—Time to Make..
    An objection to the admissibility of evidence comes too late, and will not be considered, when first made in the amended motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2639-2641; Dec. Dig. § 1036.]
    ■3. Criminal Law (§ -665) — Exclusion of Witnesses — Exceptions prom Rule.
    The court may permit the sheriff to remain in the courtroom and exclude him from the rule •excluding the witnesses, and may permit him to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1551; Dee. Dig. § 665.]
    Appeal from Criminal District Court, Harris, County; C. W. Robinson, Judge.
    Bubber Siars was convicted of theft, and lie appeals.
    Ajffirmed.
    J. Vance Lewis, for appellant; Richard G-. Maury, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes-
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury, charged with theft of a horse. When tried, he was adjudged guilty, and his punishment assessed at five years in the penitentiary.

The evidence for the state would show that two officers were on the watch for cattle thieves. They saw defendant pass and .repass, where they were hid, several times. They recognized the defendant, so they say, and the last time he came near to the officers, they walked out in front of him, and called to him to halt, when he jumped from the wagon he was driving and ran. He fired at the officers after jumping out of the wagon, when the officers also fired at him with a shotgun. He escaped that night, but was arrested s'ome weeks later, and, when arrested,, the sheriff and other witnesses testify that his right side had bullet wounds and scars which had the appearance of having been freshly made. The horse hitched to the wagon was taken to the police station, ■and there identified as the. horse of George .O’Neill, who testified the horse had been stolen from him.

The defendant introduced evidence to show that the officers were mistaken about him being the man who jumped out of the wagon, and that he was at another and different place, that the wounds on his body were old wounds, and he had been shot accidentally by his brother some 12 or 13 years prior to this time.

There is but one bill of exceptions in the record. The bill tendered by appellant was refused by the court, the district attorney refusing to agree thereto, but the court prepared and filed a bill in lieu thereof. The bill relates to the cross-examination of defendant, and the objection was that no testimony was admissible of the commission of another and different offense than that for which he was on trial. The defendant was testifying about the examining trial held by Justice McDonald, when the following proceedings were had: “Q. You say that you were brought there twice? A. Yes, sir. Q. What was the other one for? A. Once on this and once on — Defendant: We object to that. He is on trial for the theft of the horse now. Court: The state has a right to show that he has been charged with other crimes. That simply goes to his credibility as a witness, not as to his guilt or innocence in this case, .and I will control that in the charge to the jury. Defendant: It is my opinion that if a man has been convicted or charged with a crime that the indictment or judgment of sentence is specific. Court: That is one way to do it. Defendant: I object to anything but that speeificness. Court: State your bill now. Defendant: I take a bill on the ground that nothing authenticated has been introduced. Court: Overruled. Defendant: I except. Q. I will ask you if you did not make a statement to Judge McDonald on one of the occasions when you were before him as to how he got those shots there. A. No, sir; never did make any statement to him.”

As will be seen, no testimony of another or different offense was elicited. While the court held the district attorney could do so, if he desired, for the purpose of affecting the credibility of the witness”, yet it was not pressed. Consequently there was nothing for the court to limit in his charge. And, when the witness testified that “he had never made a statement” to the justice, the district attorney did not attempt to prove he had done so. This matter presents no error.

In his motion for new trial defendant complains of the testimony of the* witnesses T. A. Binford, J. E. Fife, Duff Voss, and George O’Neill in certain particulars. There are no bills of exceptions, and nothing in the record to suggest that this testimony was objected to on the trial of the case, and objection to the admissibility of testimony comes too late when it first appears in the amended motion for a new trial.

The rule was demanded, but the sheriff was not placed under the rule, and, when he was called as a witness, the motion for a new trial says the defendant objected to him testifying because he had been permitted to remain in the courtroom. Mr. Anderson, the sheriff, was an officer of the court, and the court did not err in permitting him to remain in the courtroom.

There being no matter properly presented presenting any error, and the two officers positively identifying appellant as the man who had the stolen horse in his possession, the judgment is affirmed.  