
    GANT v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Criminal Law (§ 1064) — Appeal—Presentation and Reservation in Lower Court op Grounds op Review-Necessity op Mouton por New Trial.
    Under Supreme Court rules (142 S. W. vii et seq.), providing that in a motion for a new trial all grounds relied on shall be stated, or the court on appeal will not consider such grounds, the court on appeal will not consider bills of exceptions complaining of matters not presented to the trial court in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    2. HoMicrDE (§ 203) — Evidence — Dying Declarations.
    In a prosecution for murder, statements made by deceased when there was no hope of recovery and with the knowledge of impending death were admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    3. Criminal Law (§ 366*) — Evidence — Res Gestas.
    In a prosecution for murder, statements made by deceased to his wife, ■ who was present when the fatal shot was fired, immediately thereafter were admissible as part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, S14, 819, 820; Dec. Dig. § 366.]
    4. Criminad Law (§ 1091) — Appeal and ER-bob — Specification of Errors.
    In a prosecution for murder, a hill of exceptions that the court erred in admitting testimony tending to show that there was “bad feeling between the Gants [defendant’s people] and Howards [deceased’s people]” was too indefinite for reyiew.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. § 1091.]
    5. Homicide (§ 166) — Evidence—Motive— Llb Feeding.
    In a prosecution for murder, the court properly admitted eyidence of bad feeling between defendant and deceased on the question of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    6. Criminad Law (§ 1091) — Appead and Error — Specification of Eeeors.
    Where bills of exceptions do not show, the answers given to questions, and the questions themselves present no error, the hills will be overruled.
    [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.]
    7. Ceiminad Law (§ 922) — Motion fob New Triad — Exceptions at Tbiad.
    No exceptions having been filed to the charge of the court during the trial, complaints in the motion for new trial came too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    8. Crimunae Law (§ 829) — Requests fob Instructions — Instructions Adready Given.
    The court properly refused defendant’s request which was sufficiently embraced within the charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminad Law (§§ 955, 956) — Appead and Ebeob — Presentation and Reservation in Lower Court of Grounds of Review.
    Where, .in a homicide case, a ground of a motion for a new trial, complaining that the jury was allowed to separate during its deliberation, was not supported by affidavit, and there was no bill of exceptions reserved, the appellate court could not consider the objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2368-2391; Dec. Dig. §§ 955, 956.]
    Appeal from District Court, Marion County; H. F. O’Neal, Judge.
    Joel Gant was convicted of murder, and he appeals.
    Affirmed.
    R. R. Taylor, of Jefferson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 17 years confinement in the penitentiary.

The record before us contains several bills of exception relating to the admissibility of certain testimony. These bills were not filed until after court adjourned, and in the motion for a new trial no complaint is made in regard to any of these matters. Our Constitution has provided that the Supreme Court may make rules for the government of proceedings in all the courts in this state, and the Supreme Court has provided in its rules that, in a motion for a new trial filed in the trial court, all grounds relied on shall be stated, or the court on appeal will not consider such grounds. Rules, 142 S. W. vii et seq. In the motion for a new trial the matters complained of in these bills of exception were not presented to the trial court as a reason why he should grant a new trial, and they are presented to us in bills of exception filed after term time. Of course, the bills can be filed after term time if the matter is presented to the trial court in the motion for new trial, but hereafter, to authorize this court to review these matters, the record must disclose that they were presented to the trial judge in the motion for a new trial, and that he overruled them. Motions for a new trial are required to be filed that the trial judge may.correct his own errors, if error there be; it is'not fair to him to present a matter to us and ask that we reverse a ruling which he was given no opportunity to rule on. We call attention to this matter, and will expect and require attorneys to present all the grounds upon which they rely in the motion for new trial filed in the court below.

As frequently said by this court, “assignments of error,” other than the motion for new trial, have no place in the record, and will be stricken therefrom. However, we have read these bills, and they present no error in the ruling of the trial court. The first relates to the testimony of Dr. Lake, who testified as to statements made to him by deceased. It is manifest that deceased had no hope of recovery and knew that death was certain, and the statement made was clearly admissible under the rules governing dying declarations. In the second bill it is claimed the court erred in admitting the testimony of Matilda Howard, who testified she was the wife of deceased, was near him' when the fatal shot was fired, and at once went to him. This statement was admissible as res gestas of the transaction. In the third bill it is claimed that the court erred in admitting testimony going to show that there was “bad feeling between the Gants and Howards,” Phil Howard being the deceased. The bill is too indefinite to present any question for review. It would be clearly admissible to show that bad feeling existed between appellant, Joel Gant, and deceased, Phil Howard, on the question of motive, and the bill presents no error. In the next bill it is not shown what answer, if any, W. B. Stallcup gave to the question propounded; and in the next it is shown that the court sustained the objection to the question propounded to the witness Izora Lang, and the questions in and of themselves present no error. The next bill complains that the juryman Hoe Lock was disqualified because he could not read nor write. This ground of the motion is supported by no affidavit; the bill contains no evidence adduced on the hearing, and the court, in approving the bill, states: “The testimony of Doc Lock shows that he could read and write.”

This case was tried the 23d day of last November, and no objection or exceptions were filed to the charge of the court during the trial, and complaints in the motion for a new trial would come too late. However, we have carefully reviewed the grounds stated in the motion for new trial, and are of the opinion none of them present error.

The only special charge requested by appellant was sufficiently embraced in the charge of the court, in the absence of any objection to the charge as given at the time same was read to the jury.

There is a complaint in the motion for new trial that the jury was permitted to separate during its deliberation. This ground is supported by no affidavit to the motion for new trial; no bill of exceptions is reserved, presenting the testimony heard, and the testimony heard, if any, was not filed during term time. So we cannot review this ground of the motion.

The original' indictment is sent up with the record, and is not subject to the criticism contained' in the motion to quash.

The judgment is affirmed.  