
    DRAWHORN v. STATE.
    (No. 5301.)
    (Court of Criminal Appeals of Texas.
    Eeb. 19, 1919.)
    1. Criminal Law <⅜=>1144(19) — Bill or Exceptions — Refusal—Failure to File New Bill.
    Where the record recited that the trial courj refused defendant’s bill of exceptions and theii prepared and filed a new one, it being the duty of the court to file and present a correct bill of exceptions, in the absence of same in the record the refused bill will be considered as though approved and filed.
    2. Cbiminal Law <S==>1111(5) — Bill oe Exceptions — Conflicting Statements — Review.
    Where the bill of exceptions sets forth remarks of the district attorney as to defendant’s failure to procure witnesses to prove his reputation, but also sets forth a statement of the district attorney denying making such remarks and stating fully what was said by him, there was no reversible error shown.
    3. Cbiminal Law <®=>1124(4) — Motion fob New T&ial — Bill of Exceptions — Inclusion of Evidence.
    Where defendant’s motion for new trial was overruled after hearing the evidence thereon, and such evidence was not presented by any bill of exceptions, error in the court’s action was not shown.
    4. Cbiminal Law <⅜»1090(8) — Necessity of Bill of E&ceptions — Evidence.
    Where the fact that a witness was permitted to state what defendant told him while under arrest was set forth only in defendant’s motion for new trial, and no bill of exceptions was preserved in regard thereto, it cannot be considered on appeal.
    5. Homicide <⅜^>257(2) — Evidence — Sufficiency-Testimony of Accused.'
    In p. prosecution for assault to murder, contention that defendant’s gun was “lame” when he assaulted the officer was not borne out by the .record, ⅛ view of his own testimony that the gun was in the same condition as when ■hunting with it the previous day, etc.
    Appeal from District Court, Henderson ■County; John S. Prince, Judge.
    Bess Drawhom -was convicted of assault to murder, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

In this case appellant was charged in the district court of Henderson county with the offense of assault to murder, and upon trial was convicted and his punishment assessed at confinement in the penitentiary for seven years.

There was no objection in the court below to the indictment or to anything transpiring upon the trial, as appears from the record, except the complaint made of certain statements attributed to the district attorney in his closing remarks to the jury. This objection is presented to this court by appel- , lant’s bill of exceptions No. 1. An examination of this bill discloses that the court made the following order upon the same:

“This bill of exceptions is refused, because it in no wise presents the matters as I recollect that they occurred, and being so different and so much at variance with the court’s recollection of tl(e facts that I have made out and filed what I conceive to be a true and correct bill of exceptions correctly presenting just what did occur and nothing more.”

In view of this order, we have carefully examined the record, but find no other' bill of exceptions than this one, and under the ruling heretofore made by this court and under the statute, it being the duty of the trial court to file and present a correct bill of exceptions, in the absence of same the refused bill will be considered as though approved and filed. Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Butler v. State, 64 Tex. Cr. R. 482, 142 S. W. 904. We have therefore considered this entire bill of exceptions as though the same had been approved, and observe that it consists of a statement setting forth remarks attributed to the district attorney in his closing argument as to the failure of appellant to put witnesses on the stand to prove his general reputation; but we also observe that said bill sets out, as a part thereof, a lengthy statement of the district attorney in which he denies having made the statements set out in said bill by appellant as having been made by him, and also states fully what was said by him, and under such statement'no reversible error is shown. Both these statements appearing in this bill and we being compelled to take same as it appears in the record, we are unable to determine which one of said statements is correct, and therefore cannot say that any error was committed as to the matter set forth.

This same matter is set up by appellant in his motion for- new trial, and, upon a statutory traverse of this ground of the motion by the district attorney, the court, after hearing evidence thereon, overruled said motion. The evidence heard with relation thereto is not preserved or presented by any bill of exception, and we are unable to see any error in the court’s action.

Appellant further complains because the evidence shows guilt of no higher grade than that of aggravated assault. This matter was fully submitted to the jury by the trial court, and there is ample evidence in the record to sustain their finding.

Complaint is made also of the fact that a certain witness was permitted to state what the appellant told him while under arrest; but, as this matter is presented only in the motion for new trial and no bill of exceptions was preserved to the court’s action, we cannot consider same.

The only remaining ground of objection was that the appellant’s gun was “lame” and would not shoot at the time of the alleged assault. This contention is not borne out by the record, as appellant himself testified that he had been hunting with the gun in the same condition that it was when it was snapped by him in the face of the arresting officer. He also states that he had put two shells in the gun the day before of the same kind, and that with one of them -he killed a duck, and was just in the act of starting

.hunting with this gun at the time this difficulty occurred.

Finding no error in the record, the judgment of the lower court is affirmed. 
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