
    DAVIS v. STATE.
    (No. 8082.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.)
    1. Criminal law ©=5364(1) — Matters held part of res gestae and! admissible..
    Where defend&nt, after shooting his wife and two of her sisters, followed them as they fled to a nearby house, where he shot and killed another sister, held the whole transaction was continuous, and that what was said and done during, any of the time by defendant or the others was part of the res gestas and admissible. ■
    2. Homicide ©=>171 (I) — Proof held competent as connected with homicide.
    Where defendant, after shooting his wife and two of her sisters, followed them as they fled to a nearby house, where he shot and killed another sister, it was not incompetent for the state to prove that defendant’s wife and her sisters were carried to a hospital, that one of them was dead at the time of trial, and other matters relating to the conduct of the husband of the woman first killed, and other matters incidental to the transaction.
    3. Homicide ©=166(3) — Evidence of defendant’s malice held admissible.
    In a prosecution for the killing of defendant’s wife’s sister, it was competent to prove defendant entertained malice toward his wife, from whom he was separated, and another sister, both of whom were shot in the same transaction, and that such sister had given another witness an account against defendant for collection.
    4. Homicide ©=I58(I), 166(3) — Proof of filing divorce suit by defendant’s wife and statements against her and her sister held competent.
    In a prosecution for the killing of defend'ant’s wife’s sister, proof that defendant’s wife had filed a divorce suit against him before the killing, and statements made by him relative to her coming back and what he would do to her, or to her sister, if she did not quit bothering him about money that he owed her, held competent.
    5. Homicide ©=174(2) — Proof of bullet holes in house held not objectionable.
    Where deceased was shot when she came to the door of her home, proof as to the bullet holes in the house around the door was not objectionable.
    6. Witnesses ©=78 — Evidence of divorce held proper to show wife’s competency as witness in prosecution of husband for murder of her sister.
    In a prosecution for murder of defendant’s wife’s sister, the introduction in evidence of a decree of divorce, obtained by defendant’s wife after the killing to show her competency as a witness, held not error.
    7. Homicide ©=I7I (3) — Testimony as to others-than deceased shot at time of killing held not objectionable.
    In a prosecution for the murder of defendant’s wife’s sister at a time when his wife and' a third sister were also shot, testimony of a witness that he saw defendant’s wife and such sister at the hospital after the shooting held not objectionable.
    8. Criminal law ©=364(2) — Defendant’s conduct just preceding beginning of difficulty ending in homicide held part of res gestae.
    In a prosecution for the killing of defendant’s wife’s sister, proof of his conduct in the presence of his wife and two of her sisters immediately preceding the beginning of the difficulty held admissible as part of res geste.
    9. Criminal law ©=1091 (10) — Bills of exception should show surrounding facts anij circumstances to warrant review.
    Bills of exception should not only state matters objected to and the grounds of objection, but should contain facts, settings, surroundings, and circumstances sufficient to enable the court to determine whether in fact an error has been committed and whether it is prejudicial; failure in such respects precluding a review.
    Appeal from District Court, Stephens County; O. O. Hamlin, Judge.
    Carter Davis was convicted of murder, and he appeals.
    Affirmed.
    See, also, 257 S. W. 1099.
    Kirby, King & Overshiner, of Abilene, for appellant.
    E. L. Routh, Dist. Atty., of Breckenridge, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Stephens county of murder, and his punishment fixed at 30 years in the penitentiary.

Appellant and his wife had separated, and she had filed application for divorce. The woman was living with her mother and sisters in a little house adjacent to which was another house occupied by another sister and her husband. On the night of this homicide appellant came to the house occupied by his wife and engaged her jn conversation relative to coming back to him. She refused to do it, and he drew a pistol and shot her and two of her sisters. The women fled, and appellant followed them. They went into the nearby house, and the sister who lived there came to the door, and, according to the testimony of the state, appellant shot her in the head and killed her. This conviction is for the killing of the last woman mentioned.

This court has carefully read and considered each of the numerous bills of exception in this record. Many of them reflect objections made to acts and conduct of parties to the immediate transaction. As appears from the record and from the qualifications of the learned trial judge to some of the bills of'exception, from the time appellant began shooting at his wife until his gun was finally emptied and the deceased in this case had been shot and killed by him, the transaction was continuous and covered a space of but a few minutes.. In our opinion what was said and done during any of that time by appellant or any of the others would be res gestae of the transaction and therefore admissible.

We think it not incompetent for the state to prove that, after the deceased was shot, appellant’s wife and his two sisters-in-law were carried to the hospital; nor that said women were shot in the same transaction which resulted in the homicide under investigation; nor, that one of them, Lizzie Pool, was dead at the time of the trial; nor that Joe Sylver, the husband of the deceased in this case, was permitted to testify that he did not know just in what position a certain door was at the time deceased was shot; nor that immediately after the shooting of deceased said Sylver had returned from the kitchen; nor that just after Sylver reached his wife, Lizzie Pool, another of the victims of the shooting, disappeared from the room.

Testimony tending to show that appellant entertained malice toward his wife or toward her sister Lizzie Pool, both of whom were shot in the transaction involved in the instant killing, was admissible, and the fact that a certain witness was permitted to testify that Lizzie Pool had given him an account against appellant which he was trying to collect and relative to which appellant made certain statements, was competent. As being admissible for substantially the same reasons, it was competent to prove that appellant’s wife had filed suit for divorce against him, and to prove statements made by the appellant relative to ibis wife coming back to him, or what he would do to her, or whát he would do to Lizzie Pool if she did not quit bothering him about the money that he owed her.

Testimony as to the bullet holes in the house occupied by deceased, which bullet holes were around the door, would not seem to be objectionable; nor do we regard the objection made to the introduction of the decree of divorce between appellant and his wife as sound. At the time of the shooting appellant was the husband of Oubie Davis, but when this trial was had she had been divorced, and-the introduction of the decree of divorce was made necessary by the objection to her becoming a witness. By said decree the bar to her testifying was removed, and testimony as to the divorce was'pertinent for the purpose of showing the competency of the witness.

We see no reasonable objection to the testimony of the witness that he saw appellant’s wife and her sister out at the hospital after the shooting; nor to testimony as to the acts and conduct of the appellant in the presence of his wife and her sisters immediately preceding the beginning of the difficulty ;, same being res gestee of the transaction. Objection to a witness testifying that he knew' Saphronia Cadge, and that she was Caldwell’s cook and a friend of Lizzie Pool, could not be upheld by us, in the absence of a showing in the bill of exceptions of some fact or facts made the basis of the objection to the testimony. This leads us to call attention to the condition of a number of bills of exception in this record. It has always been the rule of this court that the errors complained of must be made to appear from the. bills of exception themselves. In the comparatively early case of Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730, this court, speaking through Judge Davidson, said:

“Another reason why the bill of exception should point out specifically the errors complained of is to enable this court to ascertain what error was committed without having to examine other portions of the record. This is not 'done by a general exception. The bill must be so certain and full in its statements that the errors complained of are made to appear by the allegations of the bill itself.”

The rule is uniformly adhered to. It is not enough to state that certain matters are objected to and then set out the objections which were' stated by the attorney to the court as being his objections. The facts, settings, surroundings, and circumstances must appear in the bill from which this court might determine whether an error had in fact been committed and that it was prejudicial.

Nothing of that kind appearing in any of the< remaining bills of exception, the judgment will be affirmed. 
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