
    FARRIS v. STATE.
    (No. 5282.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.
    On Motion for Rehearing, March 19, 1919.)
    1. Criminal Law @=1092(8) — Appeal—Exceptions Filed Late.
    The Court of Criminal Appeals cannot consider a bill of exceptions filed November 30th under an order of October 30th,i extending the time 30 days from date, which expired November 29th.
    2. Criminal Law @=1090(14) — Appeal — Bill os Exceptions — Refusal op Instruction.
    In absence of bill of exceptions reserved to failure to give charge not showing from contents or anything connected with it whether it was presented to court before or after main charge or after case was concluded, Court of Criminal Appeals cannot consider action of trial court.
    3. Criminal Law @=1090(8,11) — Appeal-Absence of Bill of Exceptions.
    Court of Criminal Appeals cannot consider alleged errors in introduction of evidence and errors committed by the court on trial, where none are brought up by proper bill of exceptions.
    On Motion for Rehearing.
    4. Criminal Law @=1054(1), 1092(4) — Appeal —Evidence—Bill of Exceptions.
    If defendant desired to object to introduction of testimony, it was his duty to have excepted to such action, and to have embodied exception in bill approved and filed within 30 days after adjournment of court, or else to have brought before Court of Criminal Appeals, in a legal way, some sufficient excuse.
    5. Criminal Law @=1056(2) — Appeal—Reservation — Exceptions—Instructions.
    Where no exception was taken to charge despite express provision of statute that if there is an objection which defendant desires to present on appeal he must make his objection known in writing before the charge is read to the jury, defendant cannot come before Court of Criminal Appeals for first time and attempt to argue incorrectness of charge.
    Appeal from Criminal District Court, Dallas County; C. A. Fippen, Judge.
    Isaac Farris was convicted of murder, and appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant is charged by indictment in criminal district court No. 2 of Dallas county with the offense of murd.er, and upon his trial was found guilty and his punishment fixed at five years in the penitentiary.

There appears but one bill of exceptions in the record and the court is without authority to consider same because it was filed too late in the trial court. On the 30th of October, 1917, the court made an order extending the time for filing the statement of facts and bill of exceptions for 30 days “from that date.” This time expired on the 29th day of November, and the bill of exceptions was filed November 30th, and, it being too late, this court cannot consider same.

No exception was taken to the charge of the court on the trial, and but one special charge asked, which does not show from its contents, or anything connected therewith, whether it was presented to the court before or after the main charge or after the case was concluded. There was no bill of exceptions reserved to the failure of the trial court to give this charge from which we can get any such information, and we cannot, therefore, consider the action of the trial court in refusing to give said special charge.

Various matters are complained of in the motion for new trial; but as they are mostly with regard to the introduction of evidence and errors committed by the court on the trial, and none of them are brought to this court by proper bills of exceptions, the court therefore cannot consider same.

No reversible errors appearing in the record, the judgment of the lower court is affirmed.

On Motion for Rehearing.

This case is before the court upon appellant’s motion for a rehearing, in which he complains at length of this court’s refusal to consider the error of the lower court in admitting testimony as to what occurred in the conversation between appellant and the deceased. Our statute has provided that if any person is aggrieved from the admission of testimony upon a criminal trial, he shall make known his objection to the court, and, if the same is overruled, that he shall preserve the entire matter and present it to this court by means of a bill of exceptions, the requisites and formalities of which are both statutory, and have been passed upon by this court in decisions without number. If this appellant desired to make an objection to the introduction of the testimony of the witness Bane, and get the court’s action thereon brought before this court for review, it was his plain duty to have taken his exception to the action of the trial court and to have embodied said exception in a bill which it was his duty to have approved and filed within 30 days after the adjournment of the court, or else to have brought before this court in a legal way some sufficient excuse for not having done so. We decline to consider the bill of exceptions seeking to present this erroneous action of the court below, for the reason that the said bill was not filed in the trial coprt within the statutory time. This is perfectly apparent from an inspection of the same, and we are not at liberty to consider any reason that may be presented by appellant in argument here why said evidence was admitted and the harm that might have resulted to appellant therefrom. These are matters which should have appealed to appellant’s counsel and induced him to present his objections to this court in a proper manner.

What we have just said applies to the other contention, made by appellant on this motion for rehearing, to wit, that the court committed a fundamental error in its charge. No exception was taken to the charge of the court below, notwithstanding the fact that the statute expressly provides that, if there be objection which the appellant desires to present here, he must make his objection known in writing, and before the charge is read to the jury. Having wholly failed to do this, it is entirely too late for appellant to come before this court and attempt to argue that the charge is incorrect.

What we have just said applies to the remaining ground of appellant’s motion, to wit, that the court refused to give his special charge as requested. The statutes of this state plainly require that every charge that is requested of the court must be requested before the argument of the case, and this fact must appear from the charge or the hill of exceptions retained to the court’s action in refusing to give it. The special charge in this case has nothing in it or around it, before it or after it, upon its face or by bill of exceptions, or in any other manner, to show whether it was presented to the court and by him refused before the trial begun or after the verdict was brought in. This court cannot tell whether the special charge was presented before the argument begun or not, and certainly cannot, in that condition of the record, be called upon to consider whether the principle embodied in such special charge is correct or not.

The motion for rehearing is accordingly overruled. 
      @=For other cases see same topic and KEY-NUMBF.R in all Key-Numbered Digests and Indexes
     