
    GILES v. STATE.
    (No. 11206.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Criminal law @=>422(2) — Admission of district attorney’s testimony that one indicted for complicity with defendant had been acquitted, but was reindicted, held error.
    In prosecution for theft, admission of testimony of district attorney that man indicted for complicity in theft with defendant had been acquitted under instructions from court, but that he had been reindicted, held error; the testimony being irrelevant.
    2. Criminal law @=31092(1I) — 'Trial court may not qualify bill of exceptions by matters not transpiring during trial or immediately connected therewith.
    Trial court has no- right to qualify bill of exceptions by statement of matters known personally to the judge which did not transpire during the trial or were in no manner immediately connected therewith.
    3. Criminal law. @=>1092(11) — 'Trial court should refuse to approve bills of exception not properly reflecting record, but qualification over objection and exception cannot be considered.
    Where hills of exception are presented which do not properly present the record, trial court should refuse to approve them, but court’s qualification of such bill over proper objection and exception cannot be considered.
    4. Criminal law @=>649(3) — Where defendant’s counsel1, delayed by trial elsewhere*, wired and phoned asking half day’s postponement, and arrived at time stated, judge’s refusal of postponement was error.
    Where defendant’s counsel was trying case in another county, and, on finding he could not conclude his trial, wired and phoned asking postponement of case from 9 a. m. to 1:30 of the same day, and was present at time specified, refusal of court to grant the postponement requested was error.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    L. R. Giles was convicted for theft, and he appeals.
    Reversed and remanded.
    T. B. Ridgell, of Breckenridge, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for felony theft; punishment, six years in the penitentiary.

Since the disposition of this case is in nowise affected by the facts related by the witnesses, a discussion of same will not be indulged. There are a number of bills of exception taken to the argument. The qualifications appended to these bills were excepted to by appellant and for this reason cannot be considered, but we do not believe the bills of exception present any error, considered without the qualifications.

One bill of exceptions complains of the introduction of testimony by the district attorney. Aside from the explanation of the antecedent facts appearing in the qualifies: tion to the bill, the relevance of the testimony does not appear. We cannot hold this testimony harmless to the accused. The district attorney testified that a man indicted for complicity in this theft with appellant had been acquitted under instructions from the court, but that he had been’ reindicted.

There are three bills of exception complaining substantially of the proposition that appellant was deprived of the presence and representation by his counsel who had gone to another city to try a case and was unable to get back. Each of these bills have appended to them lengthy qualifications consisting largely of statements of facts relative to conversations between the court and appellant’s counsel, and agreements and understandings had between them under which appellant’s counsel went away from Stephens county to Rockwall county to try a case there at the time the instant ease was set. The qualifications of the court are excepted to and such exceptions appear in a separate bill duly drawn, and approved by the court. We are compelled to give effect to the exceptions. The trial court has no right to qualify a bill of exceptions by a statement of matters known personally to the judge which ‘did not transpire during the trial, or were not in some manner immediately connected therewith. Forrester v. State, 95 Tex. Cr. R. 62, 252 S. W. 785. The trial court has no right to qualify a bill of exceptions over the objections of the appellant, but in such case should follow the course prescribed by statute. Moore v. State, 87 Tex. Cr. R. 569, 226 S.W. 415. It is the duty of the court, if bills of exception are presented which do not properly reflect the record, to refuse to approve them. The qualification of such bill over proper objection and exception cannot be considered. Holder v. State, 96 Tex. Cr. R. 556, 258 S. W. 1070; Plunk v. State, 98 Tex. Cr. R. 140, 265 S. W. 158; Smith v. State, 100 Tex. Cr. R. 234, 272 S. W. 793; Rochelle v. State, 107 Tex. Cr. R. 79, 294 S. W. 860. When we consider said bills of exception apart from the qualification attached thereto by the trial court, we are not able to hold, in the face of the statements made therein, that appellant was not injured by the refusal of the court to postpone the ease or to wait until appellant’s counsel returned. It is made to appear that, when counsel for appellant discovered that he could not conclude his trial in Rockwall county in time to reach Breekenridge by 9 o’clock on Tuesday morning, he wired and phoned from Rockwall and from Fort Worth asking that the case be postponed until 1:30 on that day, at which time he could be present. It is shown that he reached Breekenridge and was present by that time. We are of opinion that, accepting the facts as stated in said bill of exceptions as true, the court should have granted the postponement.

The judgment is reversed and the cause remanded. 
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