
    WOMACK v. STATE.
    (No. 3234.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Cbiminal Law (§ 1090) — Appeal—Denial oe Continuance — Bill oe Exceptions.
    The denial of a continuance cannot be considered by the appellate court when not raised or presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. 'Dig. § 1090.]
    2. Criminal Law (§ 1091) — Appeal—Bill oe Exceptions — Sufficiency.
    A bill of exceptions to the admission of evidence is insufficient where it merely states the grounds of objections, and contains no statement of facts, approved as such, setting out the matters on which the objections were predicated.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 412) — Evidence—Declarations — Admissibility.
    Where a witness in a homicide case testified that defendant stated to him, in response to an inquiry as to where he got the blood on his shirt, that he had killed deceased, and that the witness then gave him another shirt, which he put on at the house, the testimony of M., who was present at the house but had not heard such statement, that defendant stated, in response to her inquiry concerning the blood, that he had something to tell her, but he would not tell her because she was of bad repute, was properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.]
    4. Criminal Law (§ 1038) — Appeal—Presentation Below — Failure to Instruct.
    Where accused fails to object to the court’s charge before it is read to the jury, on the ground that it fails to state that a certain witness is an accomplice, and no special charge to that effect is requested before the charge is read, error cannot be predicated on the court’s failure to so instruct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    5. Criminal Law (§ 1086) — Appeal—Presentation por Review — Instructions.
    Neither a paper objecting to the court’s charge and filed in the record and containing the style and number of the cause, but not signed by any one or showing that it was presented to the trial court, nor special charges, which were copied in the record, followed by the word “refused,” with the trial judge’s signature, were sufficient to present for review the correctness of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    6. Criminal Law (§ 784) — Circumstantial Evidence — Instructions.
    An instruction on circumstantial evidence should be given only where the evidence is purely circumstantial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1992, 1960; Dec. Dig, § 784.]
    7. Criminal Law (§ 780) — Evidence op Accomplice — Sufficiency—Instructions.
    Evidence held insufficient to show that one of the state’s most material witnesses was an accomplice so as to require an instruction thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    8. Criminal Law (§ 829) — Instructions on Alibi — Sufficiency.
    Where the court so charged on presumption of innocence, reasonable doubt, and burden of proof as to cover the question of alibi, no other charge on the subject of alibi was required.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminal Law (§ 1124) — Appeal—Presentation for Review — Denial of New Trial.
    Where accused fails to present by bill of exceptions the question of a juror’s misconduct on which he relied as one ground for a new trial, and does not show by any statement of facts the testimony introduced thereon at the hearing on the motion for new trial, the denial of a new trial will not be reviewed, though accused has filed a statement by the official stenographer, purporting to give such testimony, but not agreed to by the attorneys or approved by the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Henry Womack was convicted of murder, and appeals.
    Affirmed.
    Jack & Jack, of Corsicana, for appellant. James Kimball, Dist. Atty., of Groesbeck, Hawkins Scarborough, of Corsicana, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of murder, and Ms punishment assessed at 12 years in the penitentiary.

The evidence is amply sufficient to sustain the conviction.

Appellant complains that the court erred in overruling his motion for a continuance. This is not raised nor presented by a bill of exceptions. The question, therefore, cannot be considered. See some of the cases cited in Branch’s Crim. Law, § 260, subdivision 3.

After the proper heading of the style of the ease, etc., by one of appellant’s bills he shows that the court permitted Mattie Robinson, one of the state’s witnesses, to testify:

“That the defendant told her the evening after the alleged killing and the next evening after the festival at Dick Turner’s, at her house in Cor-sicana, Tex., that he had something to tell her, but he would not tell her because she was common on the town and was of bad repute.”

The balance of the bill is made up of appellant’s objections to the introduction of this testimony, which were mere objections and not statements of facts and not approved as such by the court. This bill is wholly insufficient to authorize this court to consider it. Best v. State, 164 S. W. 997, and authorities there cited. From the bill it is impossible to tell 'whether such testimony was admissible or not. If we could go to the record we would find that it was shown thereby that appellant and others were at said witness’ house the next day after the killing the preceding night; that he had blood on his shirt, and that he told another witness at said house that he had killed the deceased the night before, and how he had killed him, where the body was, and the particulars thereof, and that the blood on him was gotten on him from the dead man at the time he killed Mm; that he applied to this witness for a shirt to put on, and that witness furnished him one of his shirts which he put on at said house. It was at this time that said witness, Mattie Robinson, demanded of appellant an explanation of the presence of the blood on his shirt, and then it was he told her what she testified. So that, even if we could consider the bill, the evidence objected to was admissible.

Appellant next contends that the court should have charged that one of the most material witnesses, Dock Palmer, was an accomplice, and erred in refusing to give his charges on that subject. As to this the record does not show that appellant made any such objection to the court’s charge before it was read to the jury, nor that he requested either of Ms special charges before the charge was read to the jury.

We find in the record a filed paper with the style and number of the cause, which says, “Now comes the defendant and points out his objections to the court’s charge as now submitted to him:” Heading the charge is insufficient, and does not charge the whole law of the case: First, because there is no charge on circumstantial evidence. Second, because it does not charge accomplice’s testimony. The evidence shows that the state’s witness is an accessory or accomplice, and such charge is called for. Third, the fifth paragraph is not sufficient on the law of alibi. This is not signed by any one, and in no way shown to have been presented to the court for its action at any time. There are several special charges also copied in the record, at the bottom of which is, “Refused. H. B. Daviss, District Judge.” There is no bill of exceptions to the refusal of the court to give these charges or any of them, nor does the record in any way show when they were presented to the judge for his action. The state objects to this court considering any of these matters, because they are not properly raised, nor presented. We think the state’s contention is correct. However, if we could consider these questions, no error was committed by the trial judge.

It is only when the evidence is purely and wholly circumstantial that the court is authorized or required to charge on circumstantial evidence. See subdivision 2, section 813 of Judge White’s Ann. O. C. P. In his subdivision 4 of the same section, he says that where, in addition to proof of circumstances, the state has introduced proof of defendant’s admissions, the ease is not one of circumstantial evidence, and the court is not required to charge thereon. Under each of these subdivisions Judge White cites many of the cases. Both propositions are too well settled to make it necessary to collate or cite the other eases. In this case there was strong circumstantial evidence tending to show that appellant did the killing, but, in addition thereto, said witness Palmer testified to a full admission by appellant that he killed the deceased and the details of the crime.

We have carefully read and studied the evidence in this case, and in our opinion none of it shows or tends to show that said Palmer was either an accomplice or an accessory. Appellant himself claims it in his brief on this testimony of the witness, which we copy from his brief:

“I had a conversation with Henry Womack before the killing. He said Isaah Tolbert had pretty good money, and if we could get him out gambling we could get a pretty good stake, and he said,.‘I am going to have it if I have to kill him.’ He asked me if I had ever thought anything about getting Isaah out to gamble with him, and I said ‘No,’ and he said ‘Let’s figure some way to get him out.’ Babe got a pistol out before we left, and Henry called for it, and she gave it to him; that was my gun. I had a conversation on that Sunday with Henry at Robert’s house. Henry said, T take you for a friend; I got him.’ He said, ‘Plere is where I got this blood at; have you got any clothes here?’ and I said, ‘Yes.’ He said, ‘Get me a shirt to put on.’ I give him a shirt, and he put it on. At Mr. Tucker’s Henry said he would run off if it was not' for his family; said, ‘If you tell them, I will kill you.’ I told him I would not tell it. I knew Isaah had money; I heard Mr. Weaver tell Henry he was not putting it in the bank. I had my gun when I borrowed the dollar; I saw .Isaah’s money; I agreed to_ keep this a secret; I told him I would not tell it. Mr. Weaver asked me if I knew where he (Isaah) was; I told him, ‘No.’ Henry asked me if anything had gotten out, and I told him everything was quiet; I did not give it up and tell anything until I was arrested. I was arrested and kept in jail 6 weeks and 4 days. I talked with the officers and told them about what Henry told me. They let me out of jail, and I never have been prosecuted for anything”

—and on the fact that it was shown that when the body of the deceased was first found, said witness, as well as others, was arrested, placed in jail, and complaints made against all of them for the murder. The record also shows that as soon as the facts of the case were investigated, the prosecution against this witness was dismissed, he released from custody, the grand jury investigated the case and refused to indict him. Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Jones v. State, 163 S. W. 76; Minter v. State, 159 S. W. 300; Burge v. State, 167 S. W. 70, and the authorities cited in these cases. See, also, the cases collated in Branch’s Crim. Law, § 319, subd. 5, on page 180, and section 686.

In addition to the court’s charge that appellant was presumed to be innocent, unless his guilt is established by legal evidence beyond a reasonable doubt, and to give him the benefit of such doubt and acquit him if they had such doubt, he also charged that the burden of proof was on the state to show, beyond a reasonable doubt, that appellant was present at the time and place where deceased was killed, if he was killed, and if the jury had a reasonable doubt as to whether he was present at the time and place when and where deceased was killed, if he was, to find him not guilty. • Again, he charged them that before they could convict appellant, they must believe, beyond a reasonable doubt, that he killed deceased, and must further find, beyond a reasonable doubt, that no other person killed him, and if they had a reasonable doubt whether -appellant or some other person killed deceased, to acquit him. In addition to this, the court, in a clear charge, required the jury to believe, beyond a reasonable doubt that appellant killed the deceased under such circumstances as to make him guilty of murder before they could convict him.' This in every way met the question of alibi, and no other charge on that subject was required or would have been proper. Branch’s Grim. Law, § 32.

The only other question necessary to be decided is one ground of appellant’s motion for new trial, claiming.that one of the jurors in the presence of the others gave testimony to thpm which was not introduced on the trial of the case, and while they were deliberating. The record clearly shows that the court heard evidence on this question and after hearing it overruled the motion. We must assume that the court did so in accordance with the evidence heard, and that his action was supported.by the evidence. Appellant does not present the question by bill of exceptions, nor does he show by any statement of facts what the testimony was which the court heard on his motion. There is filed with the court papers a statement by the official stenographer, purporting to give this evidence, but this is in no way agreed to by the attorneys for either side, nor is it in any way acted upon or approved by the court. Hence it cannot be considered for any purpose. It is just as essential that the court shall pass upon and approve such statement of facts as it is that he shall do so as to the statement of facts on the trial of the case.

No error is pointed out which would authorize or justify the court -to reverse the case, and it is therefore affirmed.  