
    GOLDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.
    Rehearing Denied May 8, 1912.)
    L Criminal Law (§ 1104) —Appeal—Record — Duty of Clerk in Making Transcript.
    In making up a transcript of the record of a criminal case, it is the duty of the clerk to include the complaint as part of the record, though it has no file mark thereon, where accused in no way objected to the consideration of the complaint or information in the court below.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2776, 2885, 2886; Dec. Dig. § 1104.]
    2. Criminal Law (§ 1032) — Appeal—Presentation of Grounds of Review in Court Below.
    Where the objection was in no way raised in the court below, an accused cannot, on appeal, complain that the conviction cannot be sustained because of the want of a file mark on the complaint.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642-, Dec. Dig. § 1032.]
    3. Criminal Law (§ 1167) — Appeal—Harmless Error — Complaint.
    Where an information charging accused with a misdemeanor was based on an affidavit which was made a part of the record, the conviction will not be disturbed because a complaint charging accused with the misdemeanor did not become part of the record in the ease owing to the lack of a file mark by the clerk.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.]
    4. Criminal Law (§ 1167*) — Appeal—Harmless Error — Complaint.
    One convicted of a misdemeanor cannot complain that the complaint bore no file mark by the clerk; the error being wholly harmless.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. I 1167.]
    5. Criminal Law (§ 1090) — Appeal—Bill of Exceptions — Necessity.
    Objection that a complaint, charging accused with the misdemeanor with which he was convicted, bore no file mark by the clerk, cannot be considered, where not presented on appeal by a bill of exceptions showing the facts.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    6. Criminal Law (§ 1091) — Appeal—Bill of Exceptions.
    A paper, purporting to be a bill of exceptions, containing objections to the charge, which does not show on its face that those objections were made at the time the charge was given or that the paper was proved by the trial judge as a bill of exceptions, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Criminal Law (§ 1091) — Appeal —Exceptions — Particularity.
    In a misdemeanor case, especially where accused requested no special charges to cure any of the alleged errors, a bill of exceptions," stating that accused excepted to the court’s charge on the ground that the same- was not the law, that the court set out and read a purported letter, and for that reason charged the jury on conspiracy giving a wrong charge, and failed to charge on defendant’s not being able to read and write or his other defenses, is too general to be reviewed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 1091) — Appeal—Bill of Exceptions.
    A purported bill of exceptions to the overruling of accused’s motion for a new trial, which contains all the various distinct grounds of accused’s motion, raises none of those separate grounds so that they can be passed upon as a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. |§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    9. Criminal Law (§ 1038) — Appeal —Motion for New Trial — Grounds.
    i-In a prosecution for a misdemeanor, grounds in a motion for a new trial attacking the charge of the court cannot be reviewed; the rule in misdemeanor cases being that, in order to have the charge of the court reviewed, exceptions must be taken and special instructions be requested, such as desired.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2646; Dee. Dig. § 1038.]
    10. Criminal Law (§ 1091) — Bill of Exceptions — Setting Out Evidence.
    A bill of exceptions, complaining that accused’s wife was cross-examined on matters not brought out by him on her direct examination, presents no question for review, where it does not show what was the wife’s direct testimony.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803,' 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    11. Criminal Law (§ 1092) — Bill of Ex-ceptio ns — Allo wance — Certification .
    Objections in a bill of exceptions and the statement that accused’s wife was improperly cross-examined are not approved as facts by the action of the trial court in approving the bill.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    12. Criminal Law (§ 1110) — Appeal—Bill of Exceptions.
    The appellate court cannot look to the statement of facts in the aid of a bill of exceptions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. § 1110.]
    Appeal from Travis County Court; R. E. White, Judge.
    John Golden was convicted of knowingly sending a letter threatening to kill and to burn the, property of another, and he appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted for knowingly sending a letter threatening to kill, and to burn the property of, one Almquist. - He was convicted and given tile lowest penalty, a fine of $100.

Tlie prosecution was by complaint and information. Tbe complaint was made by Geo. S. Matthews and sworn to before John E. Shelton, county attorney of Travis' county. The information was made by Mr. Shelton as said county attorney and states on its face that it was based “on the oath of George S. Matthews, a competent and credible person, herewith filed.”

In making out the transcript for this court, the clerk, in accordance with the instructions of appellant’s attorneys, did not copy, as a part of the record, said complaint, because it was claimed that while it was with the filed papers of the cause it did not have the file mark of the clerk thereon. The Assistant Attorney General by agreement with appellant’s attorneys, instead of having a certiorari, had sent up to be considered as a part of the record, if it could legally be done, a properly certified copy of this complaint. The appellant for the first time, in this court, raises the point that the said complaint had no file mark thereon. He did not in any way in the lower court make a motion to strike it out, quash it, or to strike out or quash the information, nor did he make a motion in arrest of judgment on that account, nor is there any bill of exceptions in the record raising the point. The clerk of the court below should have included, under the circumstances, said complaint as a part of the record, so that this court could pass upon the question instead of himself, or the appellant’s attorney doing so. This, in our opinion, would be the proper practice. No reflection is intended upon either the clerk or appellant’s attorney in the matter. They both, doubtless, acted upon what they believed to be correct.

In our opinion appellant's contention now made that this conviction cannot be sustained because of the want of a file mark on the said complaint is incorrect on four distinct grounds: First, that the question cannot be raised in this court for the first time; second, that under the facts disclosed, the statement by the county attorney in' the information that the information is based on the said affidavit, which was filed therewith,' was sufficient; third, that no possible injury is shown to the appellant by the file márk not being placed thereon, even if it was not placed thereon-; and, fourth, that the only proper way to raise the question in the court below and present it here was by bill of exceptions showing the facts. State v. Elliott, 41 Tex. 224; Goss v. State, 40 S. W. 263; Kennedy v. State, 9 Tex. App. 400; Schott v. State, 7 Tex. App, 616; Stinson v. State, 5 Tex. App. 31; Castleman v. State, 43 S. W. 994.

There appears in the record a short paper filed by appellant’s attorneys which states that the defendant in open court excepts to the charge of the court in some particulars in very general language. It does not show on its face, or otherwise, that even these objections were made at the time the court gave the charge to the jury, and said paper was not approved by the judge below as a bill of exceptions or otherwise. So that it cannot be considered for any purpose.

By another bill, which shows to have been filed on December 12, 1911—the term at which the trial occurred having adjourned on November 25, 1911—appellant shows that in open court, before a verdict was reached, the appellant excepted to the court’s charge and filed the same in writing. After giving the style and number of the cause and the court where pending, it is: “Now comes the defendant in open court and excepts to the court’s charge as same is not the law. That the court set out and read a purported letter to the jury in his charge thereby laying great stress on same, and for the reason the court 'charges the jury on a conspiracy, and gives a wrong charge on conspiracy, and no indictment charging conspiracy or that defendant acted with any one; and failed to charge on defendant’s not being able to read or write or set up any defense of defendant’s.” These objections or exceptions are too general to require this court to pass on them, even in a felony case, and certainly are insufficient in a misdemeanor case, and especially when appellant requests no special charge on the subject to cure any of these claimed errors. Berg v. State, 142 S. W. 884; Ryan v. State, 142 S. W. 878, and authorities cited in said two cases.

The appellant has a bill of exceptions to the overruling of his motion for a new trial. He copies the motion therein of more than 8 typewritten pages, containing 17 sep-1 arate and distinct grounds in his motion. The uniform holding of this court is that none of these separate grounds is thereby so raised as that we can pass upon it as a bill of exceptions.

In the motion for new trial there are several grounds attacking the charge of the court. These cannot be considered by us. It is the well-established rule in this state, as stated by Presiding Judge Davidson in Basquez v. State, 56 Tex. Cr. R. 330, 119 S. W. 861, as follows: “The motion for new trial contains four grounds, the first three of which criticise the court’s charge on circumstantial evidence. This conviction is for a misdemeanor. The rule in misdemeanor cases is, in order to have the charge of the court reviewed, exception must be taken to the charges given, and that special instructions be requested, such as are desired, otherwise this court, under the statute, will not revise supposed errors. It may be well enough to repeat here what was said in the case of Woods v. State, 75 S. W. 37: ‘This being a misdemeanor case, omissions in the charge of the court must be cured at the time by special written charge requested by appellant. His failure to make such request, even though the omission in the charge be erroneous, will not authorize this court to reverse the case. However, appellant’s counsel, in argument before this court, insists that article 723, Code of Criminal Procedure of 1895, has changed the rule with reference to misdemeanors. We have carefully examined this question, and in our opinion said article merely extends the time of exception to the charge of the court, but in no way cures the failure of the defendant in misdemeanors to tender special charges to the court at the time of the trial. Since the adoption of article 723, this question has been before this court several times, and in each instance we have held that the old line of authorities on the question of charge in misdemeanor cases still applied. Ramsey v. State, 65 S. W. 187; Garner v. State, 70 S. W. 213; Bush v. State, 70 S. W. 550. For authorities under the old article, see White’s Annotated Code of Criminal Procedure, art. 715, § 813, subd. 6.’ See, also, Sehoennerstedt v. State, 55 Tex. Cr. R. 638, 117 S. W. 829. The only manner in which appellant presents his criticism of the charge is set out in motion for a new trial, He did not ask special instructions; at least, none are found in the record. Under this condition of things we are not authorized to review the alleged errors.” It is unnecessary to cite other authorities, because such is the uniform and unbroken line of decisions of this state in misdemeanor eases. The court gave, without qualification, every special charge that the appellant requested—five in number. The appellant made a motion requesting the court to give a peremptory instruction to find the appellant not guilty, which the court correctly refused to give.

By several bills of exceptions appellant complains that the county attorney was permitted to ask the appellant’s wife, whom he introduced as his witness, certain questions on cross-examination on matters not brought out by him on her direct examination. None of these bills show any of her testimony on direct examination or what she testified on direct examination. The grounds of appellant’s objections were that she was the wife of the appellant, and that the county attorney could only cross-examine her upon matters brought out by him, and that he asked no such questions or brought out no such matters. The rules about the preparation of bills of exceptions and what they shall contain have been so long and so well established by this court that it is needless to cite them again, but see Conger v. State, 140 S. W. 1121-1122, and section 857, p. 557, and section 1123, p. 732, of White’s Annotated Code of Criminal Procedure, where some of the cases on this subject are collated. As stated above, none of these bills in any way show what the testimony of appellant’s wife was on direct examination.

Appellant’s objections that the state could not cross her on anything not drawn out by him on her direct examination were stated as objections and are not approved as facts by the court in approving any of the bills.

We cannot look to the statement of facts in aid of the bill. None of the bills set out the proceedings within themselves, so that we can tell .whether or not the questions or any of them were improper.

We have carefully gone over and considered the statement of facts, and in our opinion the evidence was amply sufficient to sustain the verdict of the jury.

There being no reversible error presented, the judgment will be affirmed.  