
    John W. Cavanar v. The State.
    No. 9049.
    Delivered February 24, 1924.
    Rehearing denied March 18, 1925.
    1. —Murder—Bill of Exception — Must Conform to Rules.
    Where on a trial for murder a bill of exception taken to the admission of statements made by appellant on the ground that the appellant was under arrest at the time, is not equivalent, to a specific statement in the bill that appellant was in fact under arrest.
    
    2. —Same—Evidence—Erroneous Admission of — Not Reversible Error.
    Where testimony of a witness is admitted erroneously, it will not constitute reversible error, if the same evidence has been admitted without objection from another witness. As is said in the Wagner ease, 53 Crim. Rep. 307. “It is well settled in this state that the erroneous admission of testimony is not cause for a reversal, if the same fact is proven by other testimony not objected to.”
    3. —Same—Practice—On Appeal — Rule..
    The practice in this state is that when a ruling of the trial court upon the receipt or exclusion of evidence is attacked on appeal, the correctness of the ruling will be presumed, in the absence of a showing in the bill of exceptions to the contrary, and the presumption in favor of the ruling is not overcome by a mere recital in the bill of the grounds assigned for opposing the ruling. See numerous authorities cited in this opinion.
    4. —Same—Separation of Jury — Not Reversible Error — In this Case.
    Where, upon the trial of this case, one of the jurors went into the toilet of the court house, and the other jurors went up stairs into -the court room he following shortly, the separation was not such as to warrant a reversal. See Bayer v. State, 96 Tex. Crim. Rep. 310.
    Appeal from the District Court of Limestone County. Tried below before the Hon. A. M. Blackmon, Judge.
    Appeal from a conviction for murder; penalty, life imprisonment in the penitentiary.
    The opinion states the case.
    
      Wallace W. Mason, and E. G. Lloyd, Jr., of Groesbeck, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   MORROW, Presiding Judge.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

It seems that the appellant and his wife were in their house alone; that at some time between the evening of the 20th of April and the morning of the 21st of that month, the throat of the appellant’s wife was cut and she was killed. The appellant’s throat was cut.and he was wounded. There was a razor found, and its condition, together with the appearance of the premises, indicated that the homicide had been committed with the razor in the house in which the deceased and appellant were found.

Two boys were the first to discover the condition of appellant and deceased. According to the testimony of one of them, he and a companion went to the home of the appellant and knocked on the door. Eeceiving no response, they looked in the window and saw the appellant and his wife lying on the floor. Appellant cursed the witness and told him to go away. The boys informed the witness Eeese, father of the deceased, who went immediately to the premises and found his daughter and the appellant lying on the floor facing each other. The daughter was dead.- The witness said to the appellant: “John, what did you do this for; what did you kill her for?” Appellant replied: “I was tired of living.” The witness testified “I thought he was dying then or would be dead in a few minutes.” Popejoy, the sheriff, and Bradley, his deputy, arrived after a short time. Upon entering the premises, Popejoy found the deceased and appellant lying upon the floor. The appellant was wounded and blood was coming out of the windpipe as he breathed. There was a razor laying upon the floor near the appellant’s feet with blood upon it. The witness noticed that the appellant opened his eyes, looked up and was trying to speak.

Bradley testified that while appellant was lying on the floor, about thirty of forty minutes after the witness reached the scene, and while the sheriff had gone for a truck, the appellant made a reply to a question propounded by Bradley, which question and answer were received in evidence. A bill of exceptions was reserved to the receipt of this testimony in which it is said:

“The said defendant, by counsel, objected to the introduction of said evidence at the time it was offered for the reason that same was a statement-of the defendant confessing his guilt, made by him to an officer while he was under arrest and in the custody of'said officer without the defendant being first duly warned that he did not have to make any statement and that any statement he made might be used in evidence against him on his trial for the offense for which he was under arrest.”

The court, in charging the" jury on the issues in the case, said that the testimony of Bradley could be considered alone in passing upon the question of sanity or insanity of the appellant at the time of the killing and that it was limited to that purpose. It is to be noted that the bill does not affirmatively state that the appellant was under arrest at the time. Prom the bill it appears that Bradley, a deputy sheriff of Limestone County, was called as a witness and testified on behalf of the State as follows:

"John Cavanar made a statement to me while lying in the middle of the floor. ‘I asked him why he did what he did’, and he said, ‘I wanted to go and wanted her to go with me’.”

The balance of the bill is quoted above.

The rule is well established that the mere statement of the ground of objection does not supply the necessary requisites of a bill. See Branch’s Ann. Texas P. C., p. 134, see. 209. In other words, in the present case, the mere statement in the bill that there was an objection made upon the ground that the appellant was under arrest at the time is not equivalent to a specific statement in the bill that the appellant was in fact under arrest.

The testimony of Bradley of which complaint is made, however, is substantially the same as that revealed by the witness Reese, which, statement seems to have been made by the appellant before the officers arrived and before there was any question of arrest. According to his testimony, Reese rushed into the premises and observing the conditions, asked the appellant why he killed the deceased and received the reply which the witness detailed, as above set out. If in this view we are correct, the rule of evidence which ordinarily obviates the necessity of a reversal for the receipt of improper testimony when the same evidence from another source is before the jury without objection, would operate upon the testimony of Bradley. This nuestion was -under consideration in Wagner’s case, 53 Texas Crim. Rep. 307, in which Judge Ramsey, writing the opinion, used this language:

"It is well settled in this State that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Texas Crim. App. 404; Walker v. State, 17 Texas Crim. App. 16; Johnson v. State, 26 S. W. Rep. 504; Stephens v. State, 26 S. W. Rep. 728; Logan v. State, 17 Texas Crim. App. 50; West v. State, 2 Texas Crim. App. 460, and Carlisle v. State, 37 Texas Crim. Rep. 108.

This principle has been applied in many subsequent cases. See Snow v. State, 91 Texas Crim. Rep. 1; Charles v. State, 85 Texas Crim. Rep. 537; Davis v. State, 83 Texas Crim. Rep. 546; Mason v. State, 79 Texas Crim Rep. 169; Moore v. State 81 Texas Crim. Rep. 302; Smith v. State, 81 Texas Crim. Rep. 369; Utsler v. State. 81 Texas Crim. Rep. 504; Goss v. State, 83 Texas Crim. Rep. 353; Kountz v. State, 241 S. W. Rep. 161; Nochols v. State, 238 S. W. Rep. 234.

Touching the testimony of Bradley, however, it may be plausibly contended that its receipt in evidence would be justified under the rule of res gestae. See Calloway v. State, 92 Texas Crim. Rep. 508; .also motion, for rehearing, p. 516. At all events, it may have been res gestae, and the bill of exceptions does not show the contrary. The practice is that when a ruling of the trial court upon the receipt or exclusion of evidence is attacked upon appeal, the correctness of the ruling will be presumed in the absence of a showing in the bill of exceptions to the contrary. In Moore’s ease 7 Texas Crim. App. 14, the principle is announced that the presumption in favor of the ruling is not overcome by a mere recital in the bill of the grounds assigned for opposing the ruling. This is emphasized in Douglas v. State, 58 Texas Crim. Rep. 122; Fuller v. State, 50 Texas Crim. Rep. 14; Bigham v. State, 36 Texas Crim. Rep. 453; Hamlin v. State, 39 Texas Crim. Rep. 579; James v. State, 61 Texas Crim. Rep. 232; Conger v. State, 63 Texas Crim. Rep. 327; Morgan v. State, 82 Texas Crim. Rep. 615.

In Ford v. State, 40 Texas Crim. Rep. 283, a murder case in which the death penalty was assessed, appellant offered his own declarations which were excluded upon the ground that they were not a part of the res gestae. Appellant complained of the ruling. This court said:

“Of course, if these statements or declarations as presented in the bill of exceptions were res gestae, the court committed an error in excluding the same. In our opinion, the bill should show all the circumstances which constitute the statement of appellant, under the circumstances, res gestae; that is, the bill should show on its face that the court committed an error in excluding the testimony.”

See also Brown v. State, 44 S. W. Rep. 175; McNeal v. State, 43 S. W. Rep. 792; Munger v. State, 57 Texas Crim. Rep. 384; Kirkpatrick v. State, 57 Texas Crim. Rep. 17; Vernon’s Texas Crim. Stat., Vol. 2, p. 542, note 29, subdivision 4; Anderson v. State, 83 Texas Crim. Rep. 276; Brown v. State, 83 Texas Crim. Rep. 451; Branch’s Ann. Texas P. C., p. 134, sec. 209.

If the appellant was under arrest, his verbal statement in the nature of a confession was not admissible upon the issue of insanity'. Hurst v. State, 40 Texas Crim. Rep. 378. If admissible at all, it was upon the issue of guilt, and its limitation by the charge of the court was unnecessary but favorable to the appellant.

For the reason stated above, we have concluded that the record fails to show that there was error in receiving the testimony of Bradley, and that even if it appeared improperly received, it being but a repetition of the testimony of Reese against which no objection was urged nor tenable, the receipt of Bradley’s testimony would not warrant a reversal of the judgment.

Insanity was the defensive theory. Upon that subject the evidence was conflicting. The solution of that issue by the jury is conclusive upon this court.

A separation of the jury is set up in the motion for new trial, but the facts developed, do not, in our judgment, sustain the contention. One of the jurors went into the toilet of the court house and the other jurors went upstairs into the court room. lie followed them shortly, and in our opinion, the transaction comes within the purview of the law as stated in Bayer v. State, 96 Texas Crim. Rep. 310; Wood v. State, 84 Texas Crim. Rep. 187; Watson v. State, 82 Texas Crim. Rep. 305, and other cases referred to in those mentioned.

No bills of exception save those that have been mentioned are found in the record.

The judgment is affirmed.

Affirmed.

ON MOTION POR REHEARING.

LATTIMORE, Judge.

Appellant files a motion for rehearing,, citing many authorities and showing care and effort in the preparation and presentation of the questions raised. A review of the record discloses but two bills of exceptions were taken, one of which complains of an alleged separation of the jury and the other, of the admission of the testimony of Jack Bradley, a deputy sheriff, who was permitted to make the statement set out in the original opinion. Alleged error in failing to sustain the second bill of exceptions is argued at length in the motion.

We are compelled to take the record as it is made in the trial court, and with reference to this matter, after stating the objectionable testimony in said bill, same sets out the objection made by appellant, which is also quoted in the original opinion, viz: that appellant objected to the admission of the statement because made to an officer while under arrest and without warning. How is this court- to know that appellant' believed himself to be under arrest? How is this court to know that the officer had disclosed his official capacity, or that same was known to appellant? These matters being stated in the bill merely as grounds of the objection, do not prove themselves. We have no better settled principle of practice than that the bill by its own contents and terms must manifest the truth of the matters stated as grounds of objection, and many authorities affirm the proposition that this court can not be compelled to search through the statement of facts and other parts of the record in order to-find out whether matters objected to were really objectionable. The bill before us, after stating the -objections made, proceeds to set forth that the court overruled the objections and admitted the testimony to which the defendant excepted. This is not enough.

We regret that we can not vary the rules established. A review of many authorities cited by counsel in his able brief would be interesting as probably explaining what he thinks to be utterances of the court in line with his* contention, but we are compelled to content ourselves with saying that we do not think same show the conclusion reached by us and announced in the opinion to be incorrect.

The motion for rehearing will be overruled.

Overruled.  