
    SIMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    On Motion for Rehearing, March 18, 1914.)
    1. Criminal Law (§ 1037) — APPEAL—PRESENTATION OP GROUNDS OP REVIEW IN COURT Below.
    Objections to the argument of the district attorney, raised for the first time in the motion for new trial, cannot be considered, not being presented by an appropriate bill of exceptions taken at trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    2. Criminal Law (§ 1038) — Appeal—Presentation op Geounds op Review in Court below.
    Objections to a charge, which is not affirmatively erroneous, cannot, under Acts 33d Leg. c. 138, requiring the trial court to furnish counsel a copy of his charge to which any objection must be made in writing before it is read to the jury, be raised for the first time in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    3.- Homicide (§ 311) — Instructions as to Punishment.
    The first indeterminate sentence law having been declared invalid, the court properly required the jury to assess the punishment in a prosecution for assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 662, 663; Dec. Dig. § 311.]
    4. Homicide (§ 257) — Trial — Evidence— SUFFICIENCY.
    In a prosecution for assault to murder, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    On. Motion for Rehearing.
    5. Criminal Law (§ 1090) — Appeal — Bill op Exceptions.
    A bill of exceptions to the overruling of accused’s motion for new trial will not answer in lieu of bills of exception to proceedings had upon trial, to which an exception should have been reserved during the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    6. Criminal Law (§ 991) — Trial—Verdict-Sentence.
    Under the second indeterminate sentence law, an accused, whose punishment was fixed by the jury at three years in the penitentiary, should be sentenced to imprisonment for a period of not less than two and not more than three years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. § 991.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Conley Simmons was convicted of assault to murder, and he appeals.
    Sentence modified, and conviction affirmed.
    Forse & Wigley and J. M. Reagan, all of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see same topic'and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at three years’ confinement in the state penitentiary.

No exceptions were reserved to the introduction or rejection of any testimony as shown by the record. The only bill of exceptions in the record is one reserved to the action of the court in overruling his motion for a new trial. This adds no verity to the motion for new trial, and only such questions can be considered which were authorized to be presented for the first time in the motion for a new trial.

It appears from the record that a singing convention and barbecue was being held on the 1st of last June, when two boys, D. Jones and Doody Smith, got into a fight. From this occurrence a difference arose between appellant and Ira Coleman, a deputy sheriff. Appellant approached the deputy and laid his hands on his shoulder, when the deputy shoved him off. Appellant started toward the deputy again, when the deputy kicked him, as did also Joe Thomas. Appellant then remarked, so some of the witnesses say, “he would go back in the house, get his gun, and kill the son of a b-h.” He did go in the house, get his pistol, come out, threw it down on Coleman, and snapped it, but it failed to fire. He then retreated back in the house.

Appellant contends that the court erred in letting the district attorney “waive the pistol before the jury during his argument.” That the district attorney did do this is not verified by any bill of exceptions. It is complained of for the first time in the motion for a new trial, and comes too late. To enable us to review the question, appellant should have objected at the time it occurred, if it did occur, -and presented a bill of exceptions. Not having done so, we cannot review this ground in the motion for new trial.

This case was tried on the 24th day of last September, three months after the law passed by the last Legislature in regard to complaints of the charge of the court went into effect. By that act it was provided that, before reading the charge to the jury, the court is required to submit the charge to counsel, and counsel then is required to submit any objections he has to the charge in writing. Appellant made no objections to the charge before it was read to the jury, and made no complaint of the charge, as shown by this record, until after verdict. This law was passed requiring counsel to make objections before the charge is read that the court may correct any errors, if errors there be, in the charge. Complaints can no longer be made for the first time in the motion for a new trial. We discussed this matter at length and cited the authorities recently in the case of James v. State, 163 S. W. 61, not yet officially reported, but which is here referred to.

The first indeterminate sentence law was declared invalid, and the court correctly required the jury to assess the punishment.

While the court’s charge in presenting the issue of aggravated assault may be subject to some criticism in that it did not as fully define “adequate cause” as applicable to the testimony as he should have done, yet, as hereinbefore stated, the charge in and of itself, as far as it went, is not erroneous; it may not be as full as appellant would have preferred; yet appellant asked no special charge, made no objection to the charge as given until after verdict, and it is just such matters as these that the Legislature has declared cannot be presented for the first time in the motion for a new trial.

The evidence, we think, is ample to support the verdict, for, if appellant’s pistol had not snapped, it is apparent that he would have killed the deputy sheriff, and after he- had snapped his pistol, if he had not been surrounded by his wife and children, the deputy would most likely have shot him. It is such scenes as this, going and arming one’s self and returning to the scene to engage in a fatal encounter, that the law intends to prevent and punish.

The judgment is affirmed.

On Motion for Rehearing.

Reserving a bill of exceptions to overruling a motion for new trial does not take the place, nor will it answer in lieu of a hill of exceptions to proceedings had upon the trial of a case, and those matters which appellant seeks to raise by reserving a bill of exceptions to overruling the motion for new trial, and to which an exception should have been reserved during the trial at the time they occurred, do not present the matter in a way we can review them.

Appellant, in his motion for a new trial, complained that the court erred in requiring the jury to assess the punishment. Since we called his attention to the fact that the first indeterminate sentence law was held invalid, he, in his motion for rehearing, insists that the court should have pronounced sentence in accordance with the terms of the indeterminate sentence law last passed, and in this he is correct. As the jury assessed his punishment at three years’ confinement in the state penitentiary, the court should have sentenced him to imprisonment in the penitentiary for a period of time not less than two nor more than three years, and the sentence is here now corrected and reformed to so read.

The motion for rehearing is overruled.  