
    NUGENT v. STATE.
    (No. 8756.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied June 17, 1925.)
    1. Criminal law <&wkey;l 120(4) — Objection to question, not set out in bill of exceptions, held unavailing.
    Objection to testimony of witness as to question be asked deceased after shooting, where question is not set out in bill of exceptions, is unavailing.
    2. Criminal law <&wkey;366(6)— Statement of deceased 40 minutes after shooting held res ges-tae.
    Where witness- stated that he got to deceased about 40 minutes after shooting, and that deceased was suffering intensely, part of his face and arm being shattered by shot, deceased’s statements that he and defendant had no words, but that defendant stepped out of the grass and commenced shooting,' was res gestae, and objection thereto was not well taken/
    
      3. Homicide <&wkey;l63(l) — Testimony of witness as to trouble with defendant held without relevancy to issue of latter’s reputation.
    In murder prosecution, testimony of state witness on cross-examination that he had had trouble with defendant was without relevancy to issue of defendant’s reputation, and sustaining objection to further inquiry was without error.
    4. Criminal law <&wkey;>l 120(3) — Bill of exceptions must show what answer to question objected to would have been.
    Error cannot be predicated on exclusion of testimony, unless hill of exceptions shows what answer of witness would have been to question if he had been permitted to make it.
    5. Homicide &wkey;>!69(8) — Statement that fqcts stated as to decedent’s conduct with others than defendant were known to latter held not to give legal reason for admitting testimony.
    Mere statement in bill of exceptions that facts stated were known to defendant would not put trial court nor Court of Criminal Appeals in possession of legal reason for admitting testimony of words, acts, and conduct of deceased with various parties other than defendant.
    6. Criminal law &wkey;>!09l(l4) — Joining several matters in bill of exceptions held violative of rule thereon.
    Where matters set out in separate paragraphs of bill of exceptions were neither the same nor rested on the same footing as to their admissibility, joining of such matters in one bill of exceptions was violation of rules.
    7. Criminal law <&wkey;>l 120(6) — Unless trial co,urt apprised of reason for admitting testimony of independent transactions, which would have to appear in bill of exceptions, its action in rejecting testimony will be upheld.
    Unless trial court was apprised in some way of reason for admitting testimony of deceased’s independent transactions, which reasons would have to appear in bill of exceptions, its act in rejecting testimony will be upheld.
    8. Criminal law <&wkey;720(9) — -Remarks of county attorney that defendant shot victim from behind and shot his arm off held supported by testimony.
    Where, in murder prosecution, testimony showed that shots which killed deceased came from the rear, and that the bones of one of his arms were shattered, there was no abuse of argument for state’s attorney to tell jury that defendant shot deceased from behind and shot his arm off.
    On Motion for Rehearing.
    9. Criminal law &wkey;j598(6) — Defendant held without diligence in application for continuance.
    Where court remained in session more than six weeks after indictment was filed, and no subpoenas were issued until succeeding term six months later, defendant was not diligent in securing attendance of witnesses, and his motion to continue was properly denied.
    10. Criminal law <&wkey;366(3) — Statement made in response to question may be res gestae.
    That statement by deceased 40 minutes after shooting was made wholly or in part in response to a question would not prevent it being res gestse.
    11. Criminal law <&wkey;ll!4(l) — Court of. Criminal Appeals knows nothing of case before it except what is in record.
    The Court of Criminal Appeals knows nothing of any case before it, save what appears in the record.
    12. Criminal law <&wkey;III9(!) — Bill of exceptions held to contain nothing on which to predicate error in refusing defendant time to talk to his witnesses.
    Bill of exceptions, setting forth that when state had introduced its testimony defendant’s attorney asked for time to talk to his witnesses, and court replied that he had had two’ days to talk to them, and trial must proceed, gives appellate court nothing on which to predicate error in refusal of time.
    13. Criminal law <&wkey;l 120(7) — Bill of exceptions must show purpose of evidence.
    Every bill of exceptions must show within itself that which is asserted as error, and also why the thing complained of is error, and, if complaint is of rejection of testimony, bill should show that purpose for which testimony was desired was stated.
    14. Criminal law <&wkey;695(6) — Bill of exceptions which sets out evidence, part of which i$ admissible, presents no error, where blanket objection is made.
    A bill of exceptions which sets out evidence, a part of which only is admissible, presents no error, where a blanket objection is made.
    15. Criminal law &wkey;>109l (4)— Bill of exceptions should not set out different statements of different people to which distinct objections might have been made.
    A bill of exceptions should not set out different statements of different people, made at different times and places, to which distinct objections might have been made.
    Appeal from District Court, Henderson County; Royall R. Watkins, Judge.
    John Nugent was convicted of murder, and he appeals.
    Affirmed.
    Ernest ,A. Landman, of Athens, for appellant.
    ' Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Henderson county of murder, and his piinishment 'fixed at five years-in the penitentiary.

Appellant and deceased were brothers and, according to the state’s testimony, had had a disagreement. Deceased was down on a lake fishing. Appellant was also down there. The two men met and appellant shot and killed deceased. Appellant claimed that deceased was advancing upon him with a hoe. These theories seemed to have been submitted to the jury in a charge apparently satisfactory to the accused. His complaints are of other parts of the trial.

Appellant sought a continuance for various witnesses. The indictment herein was filed August 23, 1923, and, as far as we learn, the first process applied for by appellant was February 21, 1924. None of the process is attached to or set out either in the application for continuance or the bill of exceptions complaining of its refusal. It does not seem to be contended that any of the process had been served, and nothing appears to show whether it had been. returned, or whether alias process had been secured, and no-showing why such action had not been taken. No such facts are stated as will enable us to know whether diligence -was exercised. The learned trial judge was in a better position to know about this than we are from this record, and we see no reason for doubting the correctness of his ruling.

Complaint appears in another bill of the reception of the testimony of a witness, who appears to have gotten to deceased'soon after the shooting. He was not far away and states'that he got there in about 40 minutes. Deceased was suffering intensely: part of his ,face and arm being shattered by shot from a shot gun. As far as revealed by the bill of exceptions, this witness was the first person who got to deceased after the shooting. It is stated in the bill as one of the grounds of objection that this witness asked deceased a 'question, -but the question is not set out, and under the authorities this objection would appear to avail nothing. It is also urged that the statement was not res gestse, but we are not' inclined to believe the contention sound. In section 83 of Mr. Branch’s Annotated P. C. many authorities are cited fully covering a case like this and apparently supporting our conclusion that this testimony was res gestse. Deceased stated to this witness:

“We didn’t have any words: John just stepped out of the grass there and thrówed up his gun and said: ‘G-d d-n you; I am going to kill you,’ and just commenced shooting.”

We think the objections-not well taken.

State witness Morrow was asked on cross-examination if he and appellant had not had trouble, and admitted that they had. Asked further what kind of trouble, witness said bad trouble and that he did not want to discuss it. At this point the state objected to further inquiry as to the kind and character of the trouble, and the objection was sustained. It seems that the ground urged for its admission was that appellant’s reputation was at issue. We see no relevancy of the testimony to this point, and. further observe that the bill does not show' what the answer of the witness would have been if he had been permitted to make it. No error. appears in this matter. Nor have we been able to perceive error in the- refusal of the court to .allow appellant further time, after the state had closed its case, in which to talk to his witnesses. The bill states that the court then informed appellant that he had had two days and that he would not allow him any more. The bill discloses no abuse of the discretion of the trial court in this matter of procedure.

Appellant’s bill of exceptions No. 5 sets out in five separate paragraphs words, acts, and conduct of deceased with various parties other than appellant. No facts are stated in any of said paragraphs informing this court as to what reason there might be for the introduction of said testimony. The mere statement that the facts stated were known to appellant would not put the trial court nor this court in possession of any legal reason for admitting such testimony. Several of said .paragraphs set out matter not admissible and the bill is clearly multifarious. The matters set out in the separate paragraphs thereof were neither the same nor resting on the same footing as to their admissibility, and the joining of such matters in one bill of exceptions is a plain violation of the rules. Some might be admissible and others not so. It would also seem a work of supererogation to call attention to the faet that, unless the trial court was apprised in some way of some reason for admitting the testimony of independent transactions, which reasons would have to appear in the bill of exceptions for the information of this court, we would uphold the action of the court below in rejecting the testimony.

We have carefully considered bill of exceptions No. 6 taken to the remarks of the county attorney and believe said counsel to be within, the record. The testimony shows that the shots which killed deceased came from the rear and that the bones of one of his arms were shattered. We do not think it any abuse of argument for state’s attorney to tell the jury that appellant shot deceased from behind and shot his arm off.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists that we were wrong in holding him without diligence in the matter of his application for continuance. In addition to what we said before, we observe that the term of the court below at .which this indictment was returned convened August 20, 1923, and the indictment was filed August 23d. Court remained in session more than six weeks thereafter and no subpoenas were issued, as far as this record indicates, until the succeeding term, which was in February, 1924. This trial term convened on the 4th of February and no subpcenas were issued until the 21st of said month. We have again examined the application and are confirmed in our conclusion that same shows no diligence.

That a statement was made wholly or in part in response to a question would not prevent it being res gestae. Johnson v. State, 46 Tex. Cr. R. 294, 81 S. W. 945; Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Hobbs v. State, 55 Tex. Cr. R. 302. 117 S. W. 811. The question ashed deceased, which is discussed in Lockhart v. State, 53 Tex. Cr. R. 589, 111 S. W. 1025, cited by appellant, is stated in the opinion in that case to have been leading, and it was also stated that in the answer thereto matters were introduced not germane.

This court knows nothing of any case before it, save what appears in the record. A bill of exceptions setting forth that, when the state- had introduced its testimony, the attorney for the defense asked for time to talk to his witnesses, and that the court replied that he had had two days to talk to them and the trial must proceed, gives us nothing upon which to predicate error in the refusal of such time. Nor does it help us to state in the bill that the trial began on March 3d and the state rested its case the afternoon of the 4th, and that during that time a venire of 75 men had been exhausted and 30 additional talesmen had been summoned, the jury completed, and the state’s testimony introduced. .

Ordinarily the accused does not wait until the trial begins to talk to his witnesses and find out what their testimony will be. In this case the defensive testimony covers 20 pages of the statement of facts, 15 of which contain the testimony of appellant and his brother. All of the other witnesses but one were character witnesses. This wholly fails to show any error in the refusal of the trial court to stop the proceedings in order to give appellant time to talk to his witnesses.

Appellant presents his case on assignments of error which are not called' for in practice before this court, but we made no point thereon in the original opinion; nor do we lay down any strict rules regarding bills of exception, which are looked to as the method of presenting errors in practice before this court. All of our decisions, however, agree that the rules laid down by the civil courts control.

The plain, well-understood rule is that every bill of exceptions must show within itself that which is asserted as error, and .also why the thing complained of is error. If the complaint is of the rejection of testimony, the bill should show that the purpose for which the testimony was desired was stated. It is also laid down by many authorities that the objection made thereto by the state should appear in the bill. It is also well understood that a bill which sets out evidence, a part of which is admissible and other not, presents no error, where a blanket objection is made; nor should a bill set out different statements of different people made at different times and places and to which distinct objections might have been made.

We held appellant’s bill No. 5 originally to be not in such condition as that we. could consider it, and we see no reason to change our conclusion.

The motion for rehearing is overruled. 
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