
    McSHAN v. STATE.
    (No. 8320.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.
    Rehearing Denied April 30, 1924.)
    1. Intoxicating liquors <&wkey;236(11) — Conviction-for selling sustained.
    Evidence held to sustain conviction of. selling intoxicating liquors.
    2. Criminal law <&wkey;>1120(3) — Bill of exceptions-failing to- seit out answer anticipated held Insufficient.
    A bill of exceptions directed to the exclusion of certain questions presents no error-wkere no attempt is made to set out what the-witness would have answerd.
    3. Criminal law <&wkey;l09l (I I) — Bills of exception in question and answer form not considered.
    In view of Code Cr. Proc. art. 846, bills of exception in question and answer form will not be considered.
    4. Criminal law <&wkey;>4 144(19) — Bill of exceptions insufficient to justify inference that exception to charge was in writing.
    Bill of exceptions merely setting forth fact that defendant excepted to charge will not justify Court of Criminal Appeals in concluding that exception was in writing, as required' by Code Cr. Proc. art. 735, but the court will deem that the exception was not in aecordance-with the.statute, especially when record shows-no written exception.
    On Motion for Rehearing.
    5. Witnesses «§^389 — Rejection of impeaching-testimony not error where truth of predicate-for purpose of impeachment admitted.
    Since one who admits truth of predicate laid for purpose of impeachment thereby renders useless admission of impeaching testimony, rejection of such testimony is not error.
    6. Criminal law &wkey;>1144(14)— Charge presumed refused] because not timely presented in absence of contrary showing.
    Where a special charge -refused did not show on its face or by court’s notation thereon-, that it was presented after the evidence closed and before argument begun, and bill of exceptions complaining of its refusal did not show this, it will be presumed it .was refused because not presented in time.
    
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      Appeal from ^District Court, Montgomery County; J. L. Manry, Judge.
    Lex McShan was convicted of selling intoxicating liquors, and he appeals.
    Affirmed.
    W. B. Browder, of Willis, and J. W. Strode, of Conroe, 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 Montgomery county of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The facts seem to amply support the verdict.' The prosecuting witness testified that on or about the 18th of June, 1922, at about 9 o’clock in the daytime and about a quarter of a mile south of Eostoria he bought a pint of whisky from appellant for which he paid him $1.75. Appellant denied this, but admitted that he saw prosecuting witness on the 19th. By other proof it was shown that appellant was in and near Eos-toria on the night of the 19th. The prosecuting witness was attacked by the defense and sustained by the state, as to his reputation for truth and veracity.

There are five bills of exception in the record. The first complains that, while the defense witness Strode was giving testimony of a conversation had by him with prosecuting witness, he stated that at a certain point he asked said witness how the grand jury got his name on the indictment, at which point he was interrupted by an objection by the state’s attorney, which objection was sustained. The bill of exceptions merely states that appellant offered the proposed testimony to impeach the witness Balch, who testified on cross-examination that he did not tell the witness Strode that he never bought whisky from the defendant. There is no attempt made in the bill to set out what the witness would have answered to the question propounded to him while a witness on the stand, the answer to which was objected to by the state. In such condition the bill presents no error.

Bills of exception Nos. 2 and 3 are in question and answer form and this court, following the mandates of article 846 of. our C. G. P., must decline to consider such bills.'

Bill of exceptions No. 4 sets out that the court failed to charge all the law applicable to the facts in evidence in that the evidence raised the issue of alibi, and further recites that—

“At the time of said trial defendant excepted to said charge because of the above-mentioned defect therein, and now tenders this his bill ■ of exception and asks that the same be approved,” etc.

There nowhere appears in the record any written exception to the court’s charge such as is clearly required by the terms of article 735, C. C. P. It is there stated that one desiring to except to the charge of the court must do so in writing pointing out specifically the error objected to. In addition to the fact that the record in this case fails to show that any exception in writing to the charge was presented, the bill under consideration nowhere states that an exception in writing was taken. A bill of exceptions merely setting forth the fact that defendant excepted to the charge will not be sufficient to justify this court in concluding that the exception was in writing as the law requires, but on the contrary this court will be compelled to believe that the exception was not in accordance with the statute.

Bill of exceptions No. 5 complains of the refusal of a special charge. When we refer to said special charge as set out in the transcript at the time and place when requested of the court, there is nothing about it, either as a part of the charge itself or in any notation made thereon by the learned trial judge, which reflects the fact that it was presented to the court after the evidence was concluded and before the argument. An examination of the bill of exceptions under discussion reveals the same defect. It begins with the statement that upon the trial of the above cause the defendant presented to the court his written charge No. 1 as follows, and concludes with the statement that the court refused to give the charge and defendant then and there excepted to the ruling of the court and tenders his bill of exceptions, etc. It thus appears both from the special charge itself and from the bill of exceptions that the statute, which requires special charges in all save certain excepted instances to be presented after the evidence and before the argument, was not complied with; or if complied with such fact is in nowise made known to this court.

There being nothing in the record reflecting the fact that appellant has not had a fair and impartial trial, and no error appearing, the judgment will be affirmed.

On Motion for Rehearing.

It is insisted that we erred in declining to consider appellant’s bill of exceptions No. 2, our action being basfed on the fact that said bill was in question and answer form. We have again examined it and have concluded that said bill should be considered, but in view of the qualification placed thereon by the trial court same presents no error. The evidence referred to in said bill, the rejection of which is complained of, would have had no effect save that of impeachment of the witness Balch. The court qualifies the bill by stating that Balcb admitted while on tbe witness stand that he did lie to the witness at the time referred to in the impeaching testimony and stated that the reason he did so was because he was afraid of appellant. One who admits the truth of a predicate laid for the purpose of impeachment thereby renders useless the admission of impeaching testimony.

It is also complained that we erred in declining to consider bill of exceptions No. 5 relating to the refusal of a special charge. The reasons for our refusal appear in the original opinion. In Harper v. State, 86 Tex. Cr. R. 446, 217 S. W. 703, Grissom v. State, 87 Tex. Cr. R. 465, 222 S. W. 237, Lucas v. State, 88 Tex. Cr. R. 166, 225 S. W. 257, Berlew v. State, 88 Tex. Cr. R. 241, 225 S. W. 518, and many other cases which might be cited, this court had adhered uniformly to the rule that unless a special charge shows upon its face or by some notation thereon made by the trial court that the same was presented after the evidence closed and before the argument begun, or unless the refusal of said charge be complained of by a separate bill of exceptions in which the said facts were shown, this court could not consider such bill. We presume upon appeal that the trial court acted upon reasons sufficient unless the contrary is made to appear, and, the learned trial judge in the instant case having refused the special charge, we presume that he refused'it, if for no other reason, because it was not presented in time. The rule seems well settled.

The motion for rehearing will be overruled.  