
    HILL v. STATE.
    (No. 8127.)
    (Court of Criminal Appeals of Texas.
    May 14, 1924.
    Rehearing Denied June 18, 1924.)
    1. Criminal lav/ 1091 (2) — Bill of exceptions complaining of conduct and language of court held not to present error.
    Bill of exceptions complaining of language and conduct of court, but failing to show that same took place in presence and hearing of jurors who sat on the trial, held not to present error.
    2. Criminal law <@^>1091 (I) — Injurious nature of matter complained of must be shown by definite and specific averments.
    Injurious nature of matter complained of in bill of exceptions must be made known by definite and specific averments.
    3. Criminal law @=»656(8, 9) — Remark of court during cross-examination held not on weight of evidence or to convey opinion.
    Comment of court during defendant’s cross-examination of character witness, “If you don’t want this witness to injure your case, you bad better let her go right now,” held, though apparently improper, not within Code Cr. Proc. 1911, art. 787, forbidding dis-, cussion or comment by court on weight of evidence or its bearing or remarks calculated to convey judge’s opinion.
    4. Homicide <®xx>l63(2) — Exclusion of proof of previous killings by deceased held not to present error.
    Refusal of court to permit witness to testify that deceased had killed two men held not to present error, where the date of such occurrences was not shown to have been within the rules relating to the admission of such evidence.
    5. Homicide <©=3250—Evidence held to sustain conviction for. murder.
    Evidence held to sustain conviction for murder.
    Appeal from District Court, Eastland. County; E. A. Hill, Judge.
    Bennie Hill was convicted of murder, and he appeals.
    'Affirmed.
    B. D. Shropshire, of Fort Worth, and Jud-kins & Dodson, of Eastland, for appellant.
    .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 Eastland county of murder, and his punishment fixed at 25 years in the penitentiary.

There are three bills of exception in the record. The first complains of language and conduct of the trial court, but unfortunately the bill presenting the complaint fails to show that same took place in the presence and hearing of any jurors who sat upon this trial. On this point the bill states:

“While the jury panel for the week were seated in the courtroom and before the jury had been impaneled to try this case.”

Appellant was charged with murder, and no statement appears in the bill of exceptions as to where the special venire was when the acts and conduct referred to took place, nor is there any showing that such venire was waived, or that any of the jurors for the week who saw or heard same were on the jury selected to try this case. Under the well-recognized rule that the matter com-pilained of must be made known to be injurious by definite and specific averment, we are compelled to hold against appellant upon this point.

It is further complained in another bill of exceptions that while appellant was cross-examining a state witness, the court in the presence and hearing of the jury remarked:

“If you don’t want this witness to injure your case, you had better let her go right now.”

The setting or surrounding circumstances are not given in the bill of exceptions. The witness was a character witness. Conceding for the purpose of the decision the apparent impropriety of the remark, we observe that the statute invoked, article 787, C. C. P., forbids discussion or comment by the court on the weight of the testimony, or its bearing in the particular case, or the making of any remark calculated to convey to the jury the judge’s opinion of the case. We are not able to bring the matter complained of here within the comprehension of said article. The remark is as easily susceptible of any effort on the part of the court to assist appellant’s counsel, as otherwise. There is no brief on file for appellant, and we are unable to understand how said remark was a comment on the weight of the evidence or calculated to convey to the jury the court’s opinion of the case.

The only other bill complains of the refusal of the court to permit a witness to testify to the fact that prior to the homicide, and at a date which is not shown to be within the rules admitting such evidence, deceased had shot two other men. It is plain that there should be such averment -relative to the time as would make it appear to this court that the evidence was admissible. The general objection sustained by the court would otherwise appear sufficient.

The evidence both from the state and defense witnesses shows overwhelmingly that appellant, deceased, and two others were engaged in a game of dominoes for money. Deceased won, and was in- the act of putting the money thus obtained in his pocket, when appellant shot him. Appellant did not combat this by his own testimony further than to say that, when deceased put the money in his pocket, he looked at him and, thinking deceased was going to shoot, he shot and killed deceased. Statement® made by appellant which were in testimony showed threats by him to kill deceased; other statements attributed to appellant directly after the shooting, as to the manner and circumstances of same, were introduced by the state and were entirely contradictory of the testimony given by appellant on the trial.

Finding no error in the record, an af-firmance will be ordered. 
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