
    McHENRY v. STATE.
    (No. 3399.) 
    
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Ckiminai, Law &wkey;>1092 — Appeal — Questions Reviewable — Bill of Exceptions.
    Where the court refused bills of exception, and accused made no attempt to prove them, they cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;5l092.].
    2. Criminal Law &wkey;>llll — Appeal—Bill of Exceptions — Qualification — Acceptance.
    Accused, accepting bills of exception as qualified by the court in. approving them, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. <i&wkey; 1111.]
    3. Criminal Law &wkey;>419, 420 — Evidence-Admissibility.
    Accused, desiring the testimony of what third persons told a witness, should call the third persons as witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <&wkey;419, 420.)
    4. Criminal Law <&wkey;llll — Appeal — Questions Reviewable — Conduct oe District Attorney.
    A bill of exceptions relating to the argument of the district attorney, which, as qualified, shows that the district attorney used no such language as stated in the bill as prepared, and which then sets out the language which was used, and that the language was in direct reply to the argument of attorney for accused, presents no error for review on appeal.
    . [Ed. Note. — Eor other cases, see .Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. &wkey;> 1111.]
    5. Witnesses <&wkey;374 —Bias — Impeaching Evidence.
    The reason why a sheriff had discharged his deputy, the prosecuting witness, was properly excluded, as not showing animus or ill will toward accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dee. Dig. &wkey;374.)
    6. Criminal Law <&wkey;730 — Appeal — Questions Reviewable — Misconduct oe District Attorney.
    A bill of exceptions complaining that during the trial the district attorney said, while a witness was testifying, that accused was a pet of the officers of the county, that accused objected to the remarks, when the district attorney replied that he “never said that he was the officers’ pet,” but said “he might be this officer’s pet,” qualified so as to show that the remarks were made during a colloquy between the district attorney and accused’s counsel, and that the court directed the jury not to consider the remarks, and reprimanded the district attorney and accused’s counsel, presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=730.]
    7. Criminal Law <§=>726 — 'Trial—Argument of District Attorney.
    The statement of the district attorney that the law was made for negroes as well as the white people, called out by language of defendant’s counsel, was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. <@=726.]
    8. Criminal Law <©=3938 — New Trial — Grounds — Impeaching Testimony.
    Newly discovered testimony, impeaching the prosecuting witness on an immaterial issue, is not ground for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <@=938.]
    9. Criminal Law <@=942 —New Trial-Grounds — Impeaching Testimony.
    A new trial on the ground of newly discovered testimony, which will not tend to impeach prosecuting witness, but, if anything, tend to corroborate his testimony, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. <@=942.]
    10. Bribery <©=11 — Evidence—Sufficiency.
    Evidence held to sustain a conviction for attempted bribery.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 10; Dee. Dig. <@=11.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Tom McHenry was convicted of crime, and he appeals.
    Affirmed.
    B. L. Durham, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       Rehearing denied February 24, 1915.
    
   HARPER, J.

In this case R'. B. Green, who was a deputy sheriff, testified that after the arrest of Tom Flemming on a charge of unlawfully carrying a pistol, and while he was on his way to jail with Flemming, appellant approached him and offered first to pay him $30 to release Flemming. Upon his declining to do so, appellant then offered him the sum of $50, and then $60, to release Flemming, all of which it seems he declined, and Flemming was placed in jail. Upon this testimony appellant was indicted, charged with attempting to bribe Green to release a prisoner, and, when tried, he was convicted, and his punishment assessed at two years’ confinement in the state penitentiary.

Bills of exception Nos. 7 and 8 were refused by the court for reasons stated, and, as appellant made no attempt to .prove them up, of course they cannot be considered.

Bills of exception Nos. 1, 2, 3, 4, 5, and 6 were qualified by the court in approving them. Appellant accepts the bills as qualified and files them, and, under such circumstances, is bound by the qualification. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368.

Bill No. 1 is in effect refused, because, in the. order approving same, it is stated that the witness was permitted to testify to all facts within his knowledge, and objections were sustained only to that portion of the testimony of the witness wherein appellant had sought to have him to testify what third parties had told him. If appellant desired such testimony, he should have called the persons as witnesses who told Justice Crawford these things, and not attempted to prove such statements by Judge Crawford.

Bills 2 and 4 relate to the argument of the district attorney. The qualifications state the district attorney used no such language as stated in the bills as prepared, and then in the qualification sets out the language which, in the opinion of the court, was used, and the further fact that the language used was in direct reply to the argument of Mr. Durham, attorney for appellant. As approved, these two bills present no error. The court was not requested to instruct the jury to not consider the remarks, and the authorities cited by appellant are not in point.

Bill No. 3 is a bill reserved to the' court declining to permit appellant to ask the prosecuting witness Green: “What reason did Sheriff Jordan give you for discharging you as deputy?” The witness Green was not on trial, but appellant was the person being tried. The bill does not allege that the witness Green had been indicted for any offense, and for this reason had been discharged by the sheriff. Attached to the contest of the motion for a new trial is an affidavit of the sheriff that the alleged answer in the bill does not correctly represent the facts, and the court, in approving the bill, shows that no such answer as is alleged could or would have been elicited from the witness. The matter does not relate in any way to the transaction for which appellant was being tried, and the court did not err in sustaining the objection, for it could not be a material inquiry in this case why the sheriff had dispensed with the services of Green as a deputy sheriff. At least appellant states no facts which would make it a material inquiry. The case of Green v. State, 54 Tex. Cr. R. 3, 111 S. W. 935, cited by appellant, does not sustain his contention. In that case it was held, as the question" and answer would have shown his animus, ill will, motive, etc., the testimony was admissible. In this case the question and answer could have had no such bearing.

In bill No. 5 it is claimed that during the trial Mr. Manry, the district attorney, said, while G. W. Childs was testifying, “that he (appellant) was a pet of the officers of Jefferson county”; that appellant objected to the remarks, when the district attorney replied, “I never said he was the officers’ pet,” but said, “He might be this officer’s pet, for all I know.” In approving the bill it is stated by the court the remarks were made dur-I ing a colloquy between appellant’s counsel and the district attorney, and the court at the time instructed the jury not to consider such remarks, and reprimanded at the time both the district attorney and appellant’s counsel for engaging in side-bar remarks. As qualified the bill presents no error.

Bill No. 6 complains that the district attorney stated during the trial, “The law was made for the negroes.” If such a remark had been made, it would have been improper, but in approving the bill the court says that, in reply to the language of the defendant’s attorney, state’s counsel had said, “The law was made for the negroes as well as the white people.” , This latter remark merely states a truism, and, as it was called out by the language of the defendant’s counsel, it was not improper.

These are all the bills in the record, but in the motion for a new trial appellant claims to have discovered new testimony, and asks a new trial on account thereof. In the course of his testimony the witness Green testified that after the arrest of Flemming he had turned him over to Dale Reeves, while he went to look for some other violators of the law; that he came back and got Flemming and started to jail with him, and it was as he was on his way to jail that the offer to bribe him was made by appellant. He did not state that Reeves was present when the offer was made, but his testimony excludes that idea.

Appellant, since the trial, has secured the affidavit of Reeves, who swears he was not present on that occasion, and that Green did not turn Flemming over to him to hold ■while he went to look for other persons. If Reeves had testified he was present and no offer to bribe was made, it would be material, but it is immaterial to whom Green turned Flemming over to hold for a few minutes. The offer to bribe, if made, had not then been made, and was not made until Green says he had again taken charge of the prisoner, and was on his way to jail with him. The testimony of Reeves could have no bearing, except to tend to impeach Green on an immaterial issue, and such testimony has never been deemed of sufficient importance to authorize a new trial.

He also attaches the affidavit of Mr. Tarver, who says he will testify that he had a talk with Green prior to the trial of this case, and he heard Green say: That the only way that he knew appellant was the man who offered to bribe him to release Flemming was that the man who offered to bribe him came on the train that day with Flemming. If Green did so state, this would be no contradiction of Green’s testimony on the trial. The testimony of Flemming and appellant both show that they came to Silsbee on the same train that day; that they got off the train together, and were together for some five minutes after getting off the train. So this testimony, instead of tending to impeach Green, would, if anything, tend to corroborate his testimony on the trial of the case, and the court did not err in refusing to grant a new trial on account of the alleged newly discovered evidence.

Appellant earnestly insists that the testimony is insufficient to sustain a conviction. We have read the testimony carefully and thoughtfully. If the testimony of Green is true, it supports the verdict, and evidently the jury believed him, and we cannot say his testimony is not true. Appellant presented a strong defense, and no one could have censured the jury if they had acquitted appellant. But it apparently did not raise a doubt in the minds of the jury that Green was not telling the truth. Appellant severely assailed Green on the trial, but this did not shake the jury’s confidence in his testimony, and it is asking too much that we, at this distance, wholly discredit and reverse the case.

There being no error pointed out in the record, the judgment is affirmed. 
      <g^?Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <©u5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     