
    FULLER v. STATE.
    (No. 11310.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied June 20, 1928.
    1. Criminal law <@=>1091 (4) — Bill of exceptions in prosecution for unlawfully carrying pistol, complaining of testimony as to seeing defendant behind empty house, held insufficient.
    In prosecution for unlawfully carrying a pistol, bill of exception complaining of admission of testimony that witness saw defendant back of an empty house held insufficient to show testimony admitted was immaterial or irrelevant.
    2. Criminal law <§=1144(12) — Where no facts were stated in bill affirmatively showing testimony was irrelevant or immaterial, it was presumed trial court correctly admitted it.
    Where no facts were stated in bill of exceptions which would affirmatively show that testimony alleged to have been erroneously admitted was irrelevant or immaterial, court on appeal was Required to presume that trial court correctly admitted the testimony.
    Commissioners’ Decision.
    Appeal from Nacogdoches County Court; F. P. Marshall, Judge.
    
      Glynn Fuller was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    Seale & Denman, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   • CHRISTIAN, J.

Tbe offense is unlawfully carrying a pistol; the punishment was assessed at a fine of $100.

The state’s testimony showed that appellant carried a pistol in bis automobile. Appellant's testimony showed that he was carrying the pistol for the purpose of trying to sell it to a party with whom he was negotiating.

Appellant brings forward ten bills of exception, which fail to manifest error. Most of said bills were taken for the purpose of reserving, exceptions to testimony admitted over appellant’s objection. Said bills are not supported by sufficient facts to apprise this court of the prejudicial nature of the testimony complained of. For example, bill of exception No. 1 reads as follows:

“Be it remembered that upon the trial of the above styled and numbered cause the court permitted the state to prove by its witness Carl Busch, over defendant’s objection, the following: ‘I saw the defendant there. I came upon him hack of 'an empty house, the first house the other side of Joe Allen’s store, going up the hill.’
“But the court overruled defendant’s objection to said testimony, to which action of the court the defendant then and there in open court excepted, for the reason that said testimony was wholly immaterial, in that the defendant was on trial for unlawfully carrying a pistol, and for the further reason that said testimony was highly prejudicial to the rights of this defendant, in that it was an attempt upon the part of the state to inject into the evidence of the case that defendant was at the back of an empty house, which was the house that burned that night, and defendant here now tenders this, his bill of exception No. 1, and asks that the same be signed, approved, and filed as a part of the law in this cause, which is accordingly done this 20th day of August, A. D. 1927.”

It would manifestly be impossible for us to determine from the foregoing bill whether the testimony therein set forth was material or relevant to any issue in the case. There being no facts stated in the bill which would affirmatively show that the testimony was not relevant and material we must indulge the legal presumption that the ruling of the trial court in admitting the testimony was correct. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569.

The evidence being sufficient to support the conviction, the judgment is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

MORROW, P. J.

Our re-examination of the record in the light of the motion for rehearing leaves us of the opinion that there is no matter presented for review which would authorize a reversal of the judgment.

The motion for rehearing is overruled. 
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