
    HOLDER v. STATE.
    (No. 7921.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.)
    1. Criminal law @=51092(12) — Statute pertaining to bystanders’ bills held not repealed.
    Code Cr. Proc. art. 846, which permits, in preparing a bill of exception in an appeal from a judgment of conviction, the taking of notes in narrative form, relating to a disputed point-in the testimony of a witness, does not'repeal Rev. St. art. 2087, pertaining to bystanders’ bills of exceptions.
    2. Criminal law @=5i092(11) — When trial court must refuse to certify bills of exceptions and prepare those of its own, stated.
    When accused prepared his bills of exception and presented them to the court, it was the duty of the latter if they did not properly reflect the record, to refuse to certify them, and to prepare and file with the clerk bills properly presenting the action, and ruling of the court (Vernon’s Sayles’ Ann. Civ. St. 1914, art’. 2067), and the court was not authorized without accused’s consent to qualify the bills prepared by him.
    3. Criminal law @=51092(12) — When resort to by-standers’ bill of exceptions proper stated.
    When a bill of exceptions prepared and filed by the court is not satisfactory to accused, he may resort to a bystanders’ bill pursuant to Rev. St. § 2067.
    4. Criminal law @=5396(2) — Introduction in evidence by state of part of conversation hold to entitle defendant to prove remainder.
    In a prosecution for selling intoxicating liquor, based on exclusive testimony of B., who also was instrumental in having procured a former indictment against accused for a similar offense, where the state, -on cross-examination, proved that G., Accused’s witness, had been told by B. that the latter had turned accused in to the grand jury at the August term of court in 1922, and that in that conversation B. had not referred to a certain matter, which tended to.show bad motive of B., accused was then entitled to prove by G. all that was said to him by B. on the same subject in the same conversation, in view of Code Cr. Proc. art. 811.
    5. Criminal law @=5683(1), 1170(1) — Exclusion of declarations of state witness showing improper motive in procuring former indictment held prejudicial.
    Where, in a prosecution for selling intoxicating liquor based on B.’s testimony, accused, to overcome evidence produced by state that he was under another indictment for a similar offense, testified both indictments were procured by B., and adduced testimony through his impeaching witness G. that B. secured the pres.ent indictment out of revenge against accused and another, whereupon the state, through B., adduced testimony to show B. was not actuated by improper motives in procuring former indictment, exclusion of B.’s declaration, offered by G., that B. obtained the former indictment to protect himself, held erroneous under Code Or. Proc. art. 811, and prejudicial, in that the declaration not only showed animus of B. in testifying against accused in instant trial, but combated the effect of the previous indictment introduced by state to impeach accused.
    6. Criminal law @=5369 (6), 1169(11) — Questioning accused as to subject of previous indictment held improper, but not prejudicial.
    In a prosecution for unlawfully selling intoxicating liquor, in which it appeared that accused was previously indicted for the offense of unlawful transportation of liquor, questioning accused with reference to how and where he transported the liquor held improper as going into unauthorized details touching the other offense, but was not prejudicial.
    Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
    Jess Holder was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Dial, Melson, Davidson & Brim, of Sul-phur Springs, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The indictment was filed on the 86th of January, and lays the date of the offense as of the 20th of that month. The state, for proof of its case, relied solely upon the testimony of Ben Bruton to the effect that the appellant, on the date mentioned, had sold to the witness a pint of whisky. Appellant testified and denied the transaction. On cross-examination lie admitted that about a year and a half before be bad been charged with transporting intoxicating liquor; also that there was pending against him another indictment, which was returned at the previous term of court, charging him with the sale of intoxicating liquor to Bruton. On redirect examination appellant asserted that upon his demand for a trial in the transportation case it was dismissed; that the two indictments for selling liquor pending against him were both upon the testimony of Bru-ton ; that he had not made the sale in either case; that he had demanded and was refused a trial in the case first upon the docket.

Three bills of exception are found in the record. The court adjourned, on the 3d of March. The bills of exception were presented in due time and filed on April 2d. It seems that the bills were not returned to the appellant, but handed to the clerk by the judge, and that appellant, on learning of the qualification, did not accept it, but made a motion to withdraw the bills from the record. The court refused this request, and explained his action by stating, in substance, that his qualification was merely explanatory of the bills embodying the stenographer’s notes upon the point in controversy, as authorized by article 846, O. C. P., and directed the clerk to file no further papers unless by permission of the court.

Appellant presented two bystander’s bills to the clerk. Thereafter the judge prepared bills in lieu of those prepared by the appellant and qualified, as above stated, and to the bills thus prepared the judge attached the transcribed notes of the stenographer. The original bystander’s bills are presented and appear to be in full compliance with the statute, and are supported by the affidavits of three bystanders. We are unable to discern any substantial conflict between the bills last prepared by the court and the bystander’s bills.

The learned trial judge appears to be under the impression that a bystander’s bill is not available save as to matters not taken down by the court reporter in the discharge of his official duties, but that in such case his transcribed notes control. The effect of article 846, supra, is not so understood. That article permits notes in narrative form relating to a disputed point in the testimony of a witness, but the enactment of that article does not repeal the statute pertaining to bystander’s bills. When the appellant prepared his bills of exception and presented them to the court, if they did not properly reflect the record, it was the duty of the court to refuse to certify them, and also to prepare and file with the clerk bills properly presenting the action and ruling of the court. 2 Vernon’s Sajles’ Civ. Stat. art. 2067; Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999; Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088. The court had, however, no right to qualify the bills prepared by the appellant without his consent. Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Shaw v. State, 89 Tex. Cr. R. 208, 229 S. W. 509; Rosa v. State, 86 Tex. Cr. R. 646, 218 S. W. 1056; and numerous other eases collated in Shepard’s Notes on Texas Citations, following the Exon Case, supra.

When a bill of exceptions prepared and filed by the court is not satisfactory to the appellant, he may then resort to a bystander’s bill as provided by article 2067, R. S. In the present instance, the bills of exception which were prepared by the appellant and qualified by the trial judge over the objection of the appellant will not be considered, but the bill of exceptions prepared by the court will be considered in connection with the bystander’s bills presented by the appellant.

From the bill of exceptions prepared by the court and the bystander’s bill, it is understood that on Bruton’s testimony there had been found against the appellant two indictments for selling liquor. One of these indictments was found at the January term of court, 1923; the other at the August term, 1922. While Bruton was on cross-examination, appellant asked him if it was not a fact that he had said to the witness Goldsmith:

“I have just been before the grand jury and I turned in Jess Holder, and I oughtn’t to have done it, but that was the only way I had of getting even with him and Stubblefield for getting my mule.”

Bruton denied making this remark. Goldsmith was called by appellant as an impeaching witness, and testified that, in substance, Bruton had made the statement to him. As we understand the bill, this conversation related to Bruton’s appearance before the grand jury in January, 1923. State’s counsel then asked Goldsmith on cross-examination relative to a conversation Bruton had had with him relative to his appearance before the grand jury in August, 1922, and had Goldsmith testify that in the conversation relating to his appearance before that grand jury Bruton had not said anything about any mules in connection with appellant. ■ When Goldsmith was turned back to appellant for re-direct examination, he was asked to state what Bruton did tell him relative to Holder in connection with Bru-ton’s appearance before the grand jury in 1922. The state objected upon the ground that the matter then inquired about by appellant was not embraced in the predicate laid for the impeachment of Bruton, which objection was sustained. If the witness Goldsmith had been permitted to answer, he would have said that Bruton told him in that conversation “that he turned Jess Holder in to save himself because the grand jury had him in a tight.” The question here presented is: Was it necessary to lay a predicate under the circumstances in order to introduce the expected answer of Goldsmith? It is contended by counsel for appellant that no predicate was necessary for the reason that the predicate and inquiry by appellant’s counsel in the direct examination of Goldsmith was as to a conversation with Bruton relative to the indictment returned at the January term, 1923, and that the cross-examination by the state introduced the subject of a conversation between Bruton and Goldsmith relative to the previous indictment found in August, 1922. The subject of Rruton’s declarations to Goldsmith touching the reasons for Bruton’s appearance before the grand jury relative to Holder at the August term, 1922, having been opened by the state in its cross-examination of Goldsmith, it would seem that all that was said upon that subject in the same conversation would become relevant under' article 8Í1, C. O. .P. In that article it is said:

“When part of an act, declaration or conversation * * * is given in evidence by one party, the whole on the same'subject may be inquired into by the other.”

When the state, on cross-examination, proved that Goldsmith had been told by Bru-ton that he had turned appellant in to the grand jury at the previous August'term of court in 1922, and that in that conversation he had not mentioned ‘“mules,” the state opened the' way for proof by Goldsmith of all that was said to him toy Bruton on the same subject in the same conversation. Interpretations of the statute in accord with, this view will be found in numerous opinions. of this court collated in 2 Vernon’s Crim. Stat. p. 759; also in Branch’s Ann. Tex. P. C., § 91. See Davis v. State, 81 Tex. Cr. R. 625, 197 S. W. 871; Ford v. State, 82 Tex. Cr. R. 639, 200 S. W. 841; Burnett v. State, 83 Tex. Cr. R. 97, 201 S. W. 409; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654; Payne v. State, 85 Tex. Cr. R. 288, 212 S. W. 161; Flores v. State, 88 Tex. Cr. R. 349, 227 S. W. 320.

Appellant denied the criminal act .which the state proved by the witness Bruton alone. To discredit the appellant, the fact that he was under indictment for selling intoxicating liquor was proved. It was shown that the present indictment and the former indictment were gotten upon the testimony of Bruton alone. The impeaching testimony given by Goldsmith to the effect that the indictment under which the appellant was on trial was secured by Bruton out of revenge against the appellant and Stubblefield having been introduced by the appellant to discredit Bruton, it was the state’s effort to support him by showing that his instrumentality in getting the former indictment was not from a bad motive. It was relevant and important to the appellant to introduce the declaration of Bruton to the effect that he had gotten the former indictment to protect himself. This declaration was valuable to the appellant not only in showing the animus of Bruton in testifying against him in the present trial, but to combat the effect of the previous indictment which the state had introduced to impeach the accused. Under the statute, as above stated, the testimony was admissible, and, in our judgment, its exclusion was harmful.

An exception was taken to proving the details with reference to the transportation of liquor.- While appellant was on the stand, he admitted that he had been- charged with the offense of transporting liquor a year and a half before the present trial. The following colloquy occurred between state’s counsel and the appellant:

“Q. Bringing some liquor from Mt. Pleasant in a car with some women? A. Yes, sir.
“Q. Carried the liquor out to Mahoney, didn’t you ?”

Objection was urged to this upon the ground that it was going into unauthorized details touching the offense. This was not propel, but probably harmless. On another trial, however, it should be omitted.

The judgment is reversed, and the cause remanded. 
      <g=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ahd Indexes
     