
    CANTERBERRY v. STATE.
    (No. 9178.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law @=>1 120(4) — Bill of exceptions, complaining of admission of testimony, but failing to disclose it, will not be considered by Court of Criminal Appeals.
    Bill of exceptions, complaining of admission of testimony, but failing to disclose it, except by general reference to statement of facts, will not be considered by Court of Criminal Appeals.'
    2. Criminal law @=1091 (2) — Bills of exceptions must be complete within themselves, and manifest fully error complained of.
    Bills of exceptions, when presented to Court of Criminal Appeals, must be complete within themselves, and manifest fully error complained of.
    3. Criminal law @=>1091(11) — Bill of exceptions in question and answer form will not be considered by Court of Criminal Appeals.
    Bill of exceptions in question and answer form will not be considered by Court of Criminal Appeals, in view of Code Cr. Proe. 1911, art. 846.
    On Motion for Rehearing.
    4. Criminal law @=t 186(4) — Error in charge not ground for reversal, unless it is prejudicial, or fair and impartial trial was not had.
    In view of Code Cr. Proc. 1925,' art. 660, error in charge is not ground for reversal, unless it' is prejudicial, or fair and impartial trial was not had.
    5. Criminal law @=!056(I) — Instruction, on manslaughter, deficient for omitting element of killing, held not fundamental error.
    In prosecution for murder, where accused was convicted of manslaughter, fact that an instruction on manslaughter was deficient in omitting the phrase “and hilled him,” after the word “deceased,” in charge tolling jury that, if accused struck deceased under the circumstances related, he was guilty of manslaughter, held not fundamental error, dispensing with necessity of excepting to such charge, in view of rest of charge and evidence.
    <g=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; Pelix D. Robertson, Judge.
    Jack Canterberry was convicted of manslaughter, and he appeals.
    Affirmed.
    Callaway, Dalton & Callaway, of Dallas, for appellant.
    Shelby S. Cox, Cr. Dist. Atty., of Dallas; and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted in Dallas county, charged with murdering his brother, Sam Canterberry, and was tried and convicted in the criminal district court of said county of manslaughter, and his punishment assessed at five years’ confinement in the penitentiary. The record discloses that there are no exceptions taken to the court’s charge, and no requested special charges presented. •The record as presented to us contains only two bills of exceptions, numbered 1 and 2.

Bill of exceptions No. 1 complains of the action of the court in permitting the state to introduce in evidence the written confession of the appellant. This bill fails to disclose the written confession complained of, and for much of the testimony we are referred generally to the statement of facts. This court holds that it will not consider bills of this kind, and that the bills which are presented to this court should be complete within themselves and manifest fully the error complained of. Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. W. 1054, and many other decisions we could cite, which we deem unnecessary.

Bill of exceptions No. 2 complains of the action of the court in permitting the state to .interrogate the defendant on cross-examination concerning a sore on his leg. This entire bill is made up in question and answer form. Under article 846, O. C. P., this court is unauthorized to consider this bill. This court in many decisions has upheld the article, supra, and refused to consider bills in question and answer form, which dectrine is so well established now that it is really unnecessary to cite authorities' in support thereof.

We have given this record as presented a careful examination, and find no reversible errors therein, and are of the opinion that the judgment of the trial court should be affirmed ; and it is accordingly so ordered.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

We discuss only a matter called to our attention by appellant’s motion, which was overlooked in our former opinion.

After defining murder, and applying the lavv as it related to that charge, the court told the jury, if they found appellant guilty of any degree of hdmicide, but had a reasonable doubt as to whether it was murder,, they would .give appellant the benefit of the doubt, acquit him of murder, and proceed to consider whether he was guilty of manslaughter. Then follows a charge explaining when homicide would be manslaughter. In applying the law as to that offense the court instructed the jury, if by reason of the things enumerated appellant’s mind was disturbed or excited to such extent as rendered it incapable of cool reflection, and while in such state of mind he “struck” deceased, they would find him. guilty of manslaughter. As this charge appears in the record before ns, the court omitted to tell the jury, if appellant struck deceased and “killed him” under the circumstances related, he would be guilty of manslaughter. No exception was taken to the charge by reason of the omission. The question for the first time is raised here; it being asserted that such omission is a fundamental error, of which this court should take cognizance, eren in the absence of exception to the charge.

As supporting this contention appellant cites the eases of Debth v. State, 80 Tex. Cr. R. 4, 187 S. W. 341; Moore v. State, 84 Tex. Cr. R. 256, 206 S. W. 683; Grant v. State, 59 Tex. Cr. R. 123, 127 S. W. 173; Barrios v. State, 83 Tex. Cr. R. 548, 204 S. W. 326; Pitts v. State, 85 Tex. Cr. R. 14, 210 S. W. 199; Flores v. State, 86 Tex. Cr. R. 235, 216 S. W. 170; Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046. Examination reveals that in all of the cases referred to the court either authorized a conviction for an offense not charged by the indictment, or authorized the infliction of a greater punishment than that provided by statute. If the charge complained -of here stood alone, it might present serious question; but the charge as a whole could not possibly have misled the jury. Immediately following the paragraph complained of, the court tells the jury the instrument or means by which a homicide is committed may be taken into consideration in judging of the intent of the party offending, and although they might believe that appellant killed deceased by striking him with a piece of iron or a stick of wood, yet, if said instrument was not likely to cause death, the jury could not presume that appellant designed to kill deceased, unless they found from the evidence beyond a reasonable doubt that, from the manner in which it was used, such intention evidently appeared. In another paragraph the jury were instructed, if they found appellant killed deceased, but further found that he did so by striking him' with a piece of iron or stick of wood, and the jury had a reasonable doubt whether, from the manner in which the said instrument was used, the intention to kill evidently appeared, they could under such circumstances find appellant guilty of an aggravated assault only. Furthermore, the evidence leaves no doubt that the death of deceased was occasioned by the blow struck by appellant. He says in his confession that, after striking deceased, he dragged him on- the railroad track, in order that he might be run over by a train. A train did later mutilate deceased’s body, but a witness who examined it immediately states that the body was perfectly cold, and that deceased appeared to have been dead some three or four hours before the train struck him.

By article 666, C. C. P., Revision of 1925 (formerly article 743), we are forbidden to reverse a judgment for errors in the charge, unless it appears from the record that the error was calculated to injure the rights of the party on trial, or unless it appears from the record that he has not had a fair and impartial trial. It is apparent that the matter complained of was an inadvertent omission from the charge, which doubtless would have been promptly remedied by the insertion of the proper words, if the omission had been called to the court’s attention by exception. Viewing the evidence and the charge as a whole, we cannot conceive that the jury could have possibly been misled into believing the court had authorized a conviction for manslaughter, unless they believe'd the blow struck by appellant resulted in deceased’s death. For the reasons stated, we think the contention of appellant that the charge in question should be held fundamental error cannot be sustained.

The motion for rehearing is overruled.  