
    SPILLMAN v. STATE.
    (No. 10727.)
    Court of Criminal Appeals of Texas.
    March 2, 1927.
    Rehearing Denied April 13, 1927.
    1. Assault and battery <§=>88 — Proof of former grudges and difficulties is admissible in trial for aggravated assault.
    In trial for aggravated assault, proof of former grudges, ill will, and difficulties between parties is admissible.
    2. Assault and battery <@=>83 — Testimony as to smelling intoxicating liquor on defendant’s breath at time of assault held admissible.
    In trial for. aggravated assault, testimony that witness could smell odor of intoxicating liquor on defendant’s breath at time of assault was admissible.
    On Motion for Rehearing.
    3. Criminal law <§=>1091 (2) — Bill of exceptions must verify truth of asserted grounds for objections.
    Mere statement of objections in bill of exceptions is not enough, but truth of things asserted as grounds for objections must be verified in bill.
    
      4. Criminal .law <©=31091 (4) — Bill of exceptions to testimony as to prior assault held insufficient as not showing asserted immateriality, impropriety, or prejudicial effect thereof.
    Bill of exceptions to admission of assaulted party’s testimony that defendant beat hyn up once before, on grounds that it was not assault for which defendant was on trial, but different transaction, immaterial and irrelevant, and that it was improper and prejudicial to prove previous difficulties between parties, held insufficient as stating no facts showing immateriality, impropriety, or prejudicial effect of such testimony.
    5. Criminal law <§=1091 (4) — Statement in bill of exceptions that testimony as to prior assault referred to different transaction is insufficient; statement of facts showing immateriality to issue being required.
    Statement in bill of exceptions that testimony by assaulted party as to prior assault referred to different transaction does not suffice, but there must be statement .of facts from which court may'know that proof, of something occurring at different time was not materially related to some issue involved.
    6. Criminal law <§=1092(11) — Qualification of bill of exceptions to assaulted party’s testimony as to prior assault by statements as to question asked him on cross-examination, and his redirect testimony as to why he did not speak to defendant at time of assault charged, held relevant. ,
    Trial court’s statements, in qualification of bill of exceptions to admission of assaulted party’s testimony as to prior assault on him by defendant, that defendant’s counsel asked prosecuting witness on cross-examination, if he did not speak to defendant on entering house at time of alleged assault and that witness, on redirect examination, stated that he did not do so because defendant had knocked him down some two weeks before, held relevant..
    7. Criminal law <@=747 — Conflicting testimony presents jury question.
    Conflicts in testimony are for jury’s settlement.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    N. H. Spillman was convicted of aggravated assault, and he appeals.
    Affirmed.
    Mays & Mays, of Fort Worth, Hubert Dor-man, of Amarillo, and 0. Ellis, Jr., of Ruling, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeclt, for the State.
   LATTIMORE, J.

Conviction of aggravated assault; punishment, 30 days in the county jail.

There are two bills of exception. The first shows appellant’s objection to testimony by the alleged injured party that appellant had assaulted him a couple of weeks before the assault, which forms the basis for this prosecution. No citation of authorities is needed to support the proposition that proof of former grudges and prior ill will and difficulties between the parties is admissible.

The other bill of exceptions was taken, to testimony of a witness to the effect that, at the time of the alleged assault herein, witness could smell the odor of intoxicating liquor upon appellant’s breath. Such testimony was plainly admissible.

A discussion of the facts seems unnecessary. They are ample to support the judgment.

No error appearing, "the judgment will be affirmed.

On Motion for Rehearing.

We set out in our former opinion no analysis of the two bills of exception. No complaint is now made of our holding in regard to the second of said bills, but appellant complains of the fact that, in regard to our opinion in overruling his first contention, we failed to give any reasons or state them at any length. Bill of exceptions No. 1 shows that the assaulted party was allowed to testify as follows:

“He (meaning defendant) had beat me up once before without any cause; he had knocked me down a couple of weeks before that: after the defendant knocked me down he left the premises.”

This was objected to because not the assault for which apjiellant was on trial; 'a different transaction; improper and prejudicial to prove a previous difficulty between the parties; immaterial and irrelevant

It is the universal holding that a mere statement of objections in a bill of exceptions is not enough. The truth of those things, asserted as grounds for such objections, must be verified in the bill. Nothing, appears in the bill under consideration from which we may know that the testimony objected to was not material, or to show that it was improper or prejudicial. The statement that it referred to a different transaction does not suffice. There must be such a statement of facts as that we may know that proof of something occurring at a different time was i- ot materially related to some issue involved" ii the present case.

There is an explanation attached to the bill being considered, which escaped our notice. The trial court therein states that defense counsel had asked prosecuting witness, on cross-examination, if it was not true that when he came into the house where appellant was, on the occasion of the alleged assault, he did not speak to appellant, and it is stated that in explanation of this fact the witness was asked, on redirect examination, “Why did you not speak to him?” and witness give as his reason that appellant had knock eel Mm do'ivn sopie two weeks before. No objection was made to tbis qualification to said bill of exceptions. It appears perfectly relevant.

We have ’before us appellant’s brief wMch reached this court too late for consideration before the ease was originally decided, but same has been examined in connection with this motion. The facts, from the state’s standpoint, showed apparently an unprovoked assault upon a man much older than appellant. Conflicts in testimony are for the jury’s settlement, and there seems ample support in this case for the conclusion of guilt reached by them.

The motion for rehearing will be overruled. 
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      ^pjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     