
    PETERS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.)
    1. Criminal Law (§ 1090*) — Appeal—Bill oe Exceptions — Admission of Evidence.
    Assignments of error to rulings on evidence cannot be considered in the absence of bills of exceptions reserved thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    2. Criminal Law (§ 404*) — Demonstrative Evidence.
    The garments worn by decedent at the time of the homicide are admissible in evidence if they illustrate any issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.*]
    3. Criminal Law (§ 1141*) — Appeal—Burden oe Showing Error.
    It cannot be said that the court erred in denying a motion for new trial on the ground of error in rejecting evidence, in a homicide case, that accused was once confined in a state penitentiary, where the time of confinement was not shown in the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3015, 3020, 3022, 3023; Dec. Dig. § 1141.*]
    4. Affidavits (§ 5*) — Who may Take — Counsel for Affiant.
    An affidavit made 'by accused in connection with his motion for a new trial for newly discovered evidence should not be made before accused’s counsel, but before a disinterested person.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.*]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Mike Peters was convicted of first degree murder, and he appeals.
    Affirmed.
    Chas. Owen and J. B. Larazola, both of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted, and convicted of murder in the first degree, and his punishment assessed at imprisonment for life.

The first two grounds in the motion for new trial, complaining of the action of the court in admitting the garments worn by deceased, at the time he was killed, in evidence, and rejecting certain testimony' about deceased having once been confined in tbe Arkansas penitentiary, cannot be considered, as no bills of exceptions were reserved.

If bills bad been reserved, the garments worn by deceased at the time of the homicide are always admissible if they serve to illustrate any point in the case; and, under the evidence, the clothing was properly admitted.

As it is not shown in the motion at what time deceased was confined in the penitentiary, if he ever was, as presented, if a bill had been reserved, we could not say the court erred in the matter. The evidence raised the issue of murder in the first degree, and the court did not err in submitting that degree of homicide to the jury. The only other ground in the motion alleges newly discovered evidence.

The affidavit was made before appellant’s counsel. It has been the unbroken rule of decision in this court and the Supreme Court that counsel in the case eanhot take such affidavits. Therefore this is not presented in a way we can review the action of the court. Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567. And we think this rule a sound one which will appeal to the judgment of all lawyers. Such affidavits ought to be made before wholly disinterested parties. But we have read the affidavit, and it is shown that the witness would testify that he was driving a wagon near the scene of the homicide and heard quarreling; that he saw deceased come out of his house and walk towards the point where appellant was standing; that deceased had no weapons of any character, but, when he got near the porch on which appellant' was standing, appellant shot him, and continued to do so as he staggered and turned away. This testimony, in the light of the testimony of those who were present and witnessed the entire difficulty and heard all the remarks, .could not and would not have produced a different result had the testimony been introduced on the trial. It is proven beyond question that deceased was unarmed at the time he was killed, and appellant admits that his mind was calm and sedate at the time he shot.

The judgment is affirmed.  