
    WHEELER v. STATE.
    (No. 5887.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1920.)
    1. Homicide <©=3340(4) —Accused cannot complain of charge on offense of which he was acquitted.
    Where accused was indicted for assault to murder, but was conyicted only of an aggravated assault, he was acquitted of the charge of assault to murder, and cannot complain of the court’s charge on that offense.
    2. Criminal law <©=> f091 (5), 1120(3) — Exceptions to exclusion of foundation for impeachment held insufficient.
    A bill of exceptions to the exclusion by the court of a question asked a witness for the state to lay a foundation for impeachment, which was excluded by the court because the statement was immaterial, is too indefinite for consideration where the bill does not show how the matter came up, or explain its relation to the case and to the testimony, and where the evidence is not before the appellate court, the matter will not be reviewed.
    Appeal from District Court, Franklin County ; J. A. Ward, Judge.
    N. M. Wheeler was convicted of aggravated assault, and he appeals.
    Affirmed.
    Wilkinson & Davidson, of Mt. Vernon, and T. M. Newsome, of Winnsboro, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen.,- for the State.
   DAVIDSON, P. J.

Appellant, under an indictment charging assault to murder, was convicted of an aggravated assault and fined $50.

A number of exceptions were reserved to the court’s charge on assault to murder. Having been acquitted of that offense, appellant is not in position to complain of the rulings of the trial court in that respect.

There were exceptions reserved to the court’s charge on aggravated assault. In the absence of a statement of facts, we are unable to intelligently revise any of the matters presented.

There is a bill of exceptions reserved to the action of the court refusing to permit counsel to ask Lovelady the following question:

“Do you remember telling Vernon Hair that you did not see N. M. Wheeler run over Sam Tailor and you did not believe he did run over him?”

The state’s objection to this question was sustained. The purpose of this question, as stated in the bill, was to lay a predicate for the impeachment of the witness. Had the witness been permitted to do so, he would ■have answered in the negative; that is, that he did not make the imputed statement. The court qualifies this bill by stating that the opinion of the witness as to whether defendant did or did not run over gam Taylor is immaterial, and a witness could not be impeached on an immaterial matter. How the matter came up and its relation to the case and the testimony is not explained. The bill is too indefinite for consideration. The evidence is not before us, and we are unable to revise the ruling of the court in regard to matters which would call for a familiarity with the evidence.

The judgment will be affirmed on this record.  