
    HICKMAN v. STATE.
    (No. 6890.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Denied Jan. 31, 1923.
    Second Rehearing Denied Feb. 14, 1923.)
    1. Criminal law <&wkey;>IOS6(l), (090(14) — Refusal of special charge not reviewable, where neither certified exception nor separate bill of exceptions appears.
    Where there is no exception certified by the judge, on or as part of the-special charge, to the refusal to give such special charge, and no hill of exceptions complains of such refusal, any error therein is not preserved for review.
    •2. Criminal law <&wkey;109l (I I) — -Bill of exceptions must show answers to excluded questions.
    Error cannot be predicated on refusal of court to permit witness to answer certain questions, where the bill of exceptions fails to state what the answers would have been.
    3. Criminal law «&wkey;!09l (8) — Indefinite exception to action of court insufficient.
    Bill of exceptions to the action of the court in sustaining objection and admonishing counsel for accused, not to repeat certain language, held to present no error, the- court being left in doubt as to what appellant was excepting to.
    4. Criminal law &wkey;r!09l(il) — Narrative form of evidence required in bill of exceptions.
    Where form of questions is not in issue, a bill of exceptions to the exclusion of evidence is insufficient, where it presents the offered evidence by question and answer, instead of in the narrative form.
    5. Homicide &wkey;>/64 — Evidence of defendant’s ill health properly excluded.
    In prosecution for assault to kill, evidence that defendant was in bad health, had been troubled with headaches, and was unable to do physical labor, was properly excluded, there being no issue as to the comparative strength of the parties.
    6. Witnesses &wkey;>359^ — On charge of assault to kill oral evidence of conviction for theft admissible.
    In prosecution for assault to kill, it was proper to permit the state on cross-examination of defendant to elicit admissions that he had been convicted of automobile theft, over objection that better evidence of such conviction existed.
    7. Homicide <&wkey;300(8) — Instruction as to provocation of affray held proper.
    In prosecution for assault to kill, where self-defense was claimed, and the state’s evidence showed that defendant used the vilest of language toward a barber in the latter’s shop, stepped outside, opened his knife, and held it open in his overcoat pocket, and used it with effect when the barber attempted to strike him with a stick, an instruction on the issue of provoking the affray was properly submitted.
    On Motion for Rehearing.
    8. Criminal law t&wkey;(09l (5) — Bill of exceptions to exclusion of evidence must state pertinent matters to show reason for objection.
    A bill of exceptions to error in rejecting testimony, which does not contain a statement of the circumstances and issues leading up to or surrounding such testimony, sufficient to inform the court of some cause or reason relied upon by appellant to uphold his objection, will not be considered.
    On Application for Leave to Eile Second Motion for Rehearing.
    9. Criminal law &wkey;>1133 — -Leave to/file motion for second rehearing denied, unless application clearly discloses merit.
    Leave will not be granted to file a second motion for rehearing, unless sufficient showing is made that the court has erroneously omitted consideration of some vital matter, or unless such facts, arguments, or citations are presented as show from an examination - of the application that appellant is entitled to a second rehearing.
    .Appeal from -District Court, Hunt County; Geo. B. Hall, Judge.
    Charlie Hickman was convicted of aggravated assault, and he appeals.
    Affirmed.
    H. L. Carpenter, of Greenville, 'for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Upon trial for assault with intent to murder Will Kingry, appellant was convicted of aggravated assault, and punishment assessed at a ime of f250 and 6 months in the county jail.

Appellant was sales agent for a tea company, selling direct to housewives, including Mrs. Kingry. He had recently sold her some chinaware which she was to pay for by discounts on other purchases. The company desired to quit business in Greenville, and appellant called on Kingry, who was a barber, at his place of business to make a final adjustment of the claim againt Mrs. Kingry. Some controversy occurred between them with reference to the matter, and it was agreed that appellant should go, and he did go, to Kin-gry’s home to see his wife, and then returned to the barber shop. Kingry still refused to pay the total amount appellant claimed to be due, but finally appellant accepted the amount tendered and gave a receipt therefor. Up to this time there had been no quarrel. It is the state’s contention that, after Kingry paid the money, appellant used some very vile and abusive language with intent to provoke Kingry to attack him; that after using such language appellant went out on the sidewalk, opened his knife, dropped it in his overcoat pocket and waited for Kingry to come out. Appellant contends that Kingry first used abusive language, and being angered thereat, but without any intent to provoke a difficulty or kill Kingry, appellant cursed Kingry, but immediately opened the door and left the barber shop in order to avoid and abandon any difficulty; that Kin-gry followed him out of the shop and made an assault upon him with a stick, whereupon appellant claims to have used his knife in self-defense.

Complaint is made at the refusal to give 8 special charges. As copied in the record, they are simply marked “refused.” It does not appear over the judge’s signature on the charges that exception was reserved to their refusal, neither are found bills of exception in the record preserving the point. In the recent cases of Linder v. State (No. 6558, opinion Nov. 29, 1922) 249 S. W. -, and Craven v. State, (No. 7450, opinion Nov. 29, 1922) 247 S. W. 515, authorities are cited, and thq rule stated relative to reserving exceptions to refusal of special charges. The refusal of the charges in the instant case cannot be considered.

Bill of exception No. 1 presents a complaint as follows:

“While appellant was cross examining a state’s witness the question was asked ‘What was Kingry doing with that club he had?’ ”

The state objected to the form of the question, because there was no proof there was any club. The court announced to the jury that they were not to be controlled by the questions nor by the way they were asked, but were to be controlled by the evidence, to which action of the court appellant excepted. The court sustained the objection and admonished appellant’s counsel not to use the word club because there was no club in evidence, and the bill recites that appellant excepted to such action of the court. The bill leaves us in doubt as to what appellant was excepting to. If it was to the refusal of the court to permit the witness to answer the question, the bill is insufficient because it fails to state what the answer of the witness would have been. Branch’s Ann. P. O. p. 136, § 52. If complaint was at the statement made by the court in connection with his ruling, it fails to so show in the bill. In explaining his ruling, the trial judge certifies that the question was later asked and answered, and that the description of the witnesses shows that the instrument used by Kingry was a stick of some kind, and some of the witnesses called it a club. The bill as found in the record presents no error.

Bill No. 2 consists of 17 questions and': answers. The point is not the form of the questipns. In the absence of that issue, the bill ought to present the evidence in narrative form. Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Alley v. State (Tex. Cr. App.) 241 S. W. 1024; Smith v. State (Tex. Cr. App.) 244 S. W. 138. For collation of authorities, see, also, Reese v. State (No. 6806, opinion Nov. 29, 1922) 249 S. W.-.

Appellant complains at the. action of the court, in excluding evidence that appellant was in bad health, had been troubled with headaches, and was not able to do physical labor (bills 3 and 4). The court certifies there was no issue as to the comparative strength of the parties. After a careful review of the facts, we are unable to discover the pertinency of the excluded evidence to any legitimate issue.

Upon cross-examination of appellant, the state elicited from him that he was under conviction for theft of an automobile. Objection was urged because there existed better evidence of such conviction. The objection was not tenable. The átate was not seeking to disqualify the witness but to impeach him. Branch’s Ann. P. 0., § 167.'

Appellant objected to the court’s charge for including therein the issue of provoking the difficulty at all, and also to the manner of its submission. Objection was also urged to the charge upon various other grounds. The issue of provoking the difficulty was unquestionably in the ease. The state’s evidence shows that appellant, as he was leaving the barber shop, used language of the vilest character toward Kingry, which was well calculated to cause him to resent it; that appellant anticipated that very result is shown by the state’s evidence—he stopped just outside of the barber shop, opened his knife, and held it so open in his overcoat pocket, apparently waiting for and expecting Kingry to come out. When he did appear and struck or attempted to strike appellant with a stick, the knife was used by him, inflicting serious wounds. It was undisputed that the first overt act was by Kingry striking or attempting to strike with the stick, and the court treated it as an established fact in formulating the charge.

We deem it unnecessary to set out or to review the language of the court’s charge. We think it not subject to the criticism directed at it, and that, in connection with the special charge given at appellant’s request, it fully protected his rights and submitted the law both for the state and appellant in a full and fair manner.

Finding no error in the record calling for a reversal, the judgment of the trial court is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that we should have considered his bill of exceptions No. 2, and calls attention to what, in his opinion, differentiates said bill from those ordinarily consisting of questions and answers. Renewed inspection of said bill discloses that it presents evidence offered by appellant and heard by the trial court in the absence of the jury, and that all the questions and answers set out in the bill were, by agreement, embraced in the bill in the form that same are here presented, and the further fact that the same objection was urged by the state to each question asked. As contended by appellant, this might Be deemed but one objection made to the entire testimony set out and as presenting but a single issue upon which the evidence offered was rejected. However, the bill appears well within the settled rule holding that this court will not consider any bill of exceptions which does not contain a sufficient statement of the circumstances and issues leading up to or surrounding the rejected testimony, so that this court may be informed by the bill itself of some cause or reason relied upon by the appellant, as showing the validity of the objection made.

The instant bill merely, sets out the testimony, the objection thereto, that this was sustained, and that such action was complained of as erroneous. The existence of no issue of fact to which the rejected .evidence might be relevant is averred. No statement of issues existing or arising in the case to which such evidence might become material appears. The evidence set out obviously sheds no light on the proposition as to whether there was an assault committed by appellant, or any apparent defense against any assault made by the injured party, and viewed from this standpoint, we would decline to consider the matter set out in said bill, and see no need for further discussion of the objection which was sustained by our original opinion.

Believing the case properly disposed of under the original hearing, the motion for rehearing will be overruled.

On Application for Leave to File Second Motion for- Rehearing.

LATTIMORE, J. Appellant presents an application for leave to file second motion for rehearing. Second motions for rehearing will not be considered by this court, nor leave granted to file same, unless there be a sufficient showing in such application of the fact that in its original opinion, or opinion upon the motion for rehearing, the court has omitted to consider some matter, which, from the statement thereof in such application, is made to appear to this court so vital to üie proper disposition of the case as to lead us to conclude that we erred in failing to- consider same, or else such application must present such facts, arguments, or citations in reference to some matter decided in the original opinion or that upon rehearing, as will lead this court from an examination of the application to conclude that our decision in such regard was so far wrong as that its correction would entitle the appellant to'a second rehearing.

The application of appellant in this case falling short in all the particulars above set out, same will not be granted. 
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