
    KENNISON v. STATE.
    (No. 10133.)
    (Court of Criminal Appeals of Texas.
    April 21, 1926.
    Rehearing Denied May 26, 1926.)
    1. Criminal law &wkey;>598(7) — Application for continuance for absence of witness living in forum, for whom no process had been issued, held properly refused (Vernon’s Ann. Code Cr. Proc. 1916, art. 616).
    In prosecution for failing to stop and render aid, application for continuance because of absence of witness living in town of forum who was in car collided with, and for whom no process had been issued during two months in which case was on file, fails to show any occurrence during trial which could not have been foreseen by reasonable diligence as required by Vernon’s Ann. Code Cr. Proc. 1916, art. 616, and was properly refused.
    2. Criminal law &wkey;>656(2) — Restatement by court of district attorney’s question to witness as to necessity of medical attention for persons rendered unconscious in wreck, made to clarify question, held not injurious to defendant, prosecuted for failing to stop and render aid (Pen. Code 1925, art. 1156).
    In prosecution for failing to stop and render aid in automobile collision under Pen, Code 1825, art. 1160, restatement by court of district attorney’s question to witness as to necessity of medical-attention to persons rendered unconscious in wreck, made to clarify question by district attorney, held not injurious to defendant.
    3. Criminal law <&wkey;>368(2), 1169(1) — Testimony as to- observation of driver of car containing persons injured in collision whether defendant’s car was going to pass him, made near time of accident, held part of res gestae and of no harm to defendant (Pen. Code 1925, art. 1150).
    In prosecution for failing to stop and render aid in automobile collision under Pen. Code 1925, art. 1150, statement by witness that she heard driver of ear occupied by persons injured in collision say, “I wonder if they are going to pass,” made near time of collision, held admissible as part of res gestae, and in any event of no possible harm, to defendant.
    4. Criminal law <&wkey;1120(8) — Relevancy and materiality of objection to testimony must appear in bill of exceptions to enable reviewing court to determine question.
    One reserving exceptions to testimony must make relevancy and materiality of his objection appear by such statements in bill of exceptions as will enable Court of Criminal Appeals to determine whether objection was well founded.
    5. Criminal law <&wkey;>656(2) — Remark of court to witness not to tell what he was thinking, made after answer by witness that he did not think defendant knew car was wrecked, held not improper in prosecution for failing to stop and; render aid (Pen. Code 1925, art. 1156).
    In prosecution for failing to- stop and render aid in automobile collision under Pen. Code 1925, art. ll^O1, where district attorney objected to answer of witness that he did not think defendant knew car. was wrecked, remark of court to witness, “don’t tell what you are thinking,” held not improper. ’
    6. Witnesses 4&wkey;255(9), 393(3) — Question by district attorney as to witness’ testimony before grand jury that defendant was mad at time of collision held proper to refresh witness’ recollection or for impeachment purposes (Pen. Code 1925, art. 1150).
    In prosecution for failing to stop and render aid in automobile collision under Pen. Code 1925, art. 1150, where witness testified that he did not know whether defendant was mad at time of collision, question by district attorney as to his testimony before grand jury that defendant was mad 'held proper to refresh witness’ recollection or for impeachment purposes.
    7. Criminal law <&wkey;-l 1761/2(3)— Question of defendant, charged with failing to stop and render aid, whether he was married, if erroneous, held cured by withdrawal of same and instruction to jury not to consider it (Pen. Code 1925, art. 1150).
    In prosecution for failing to stop and render aid in automobile collision under Pen. Code 1925, art. 1150, question of defendant whether he was married, if erroneous, is cured by with-, drawal of same by court and instruction not,to consider same.
    
      Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. M. Kennison was convicted of failing to stop and render aid, and he appeals.
    Affirmed.
    Culwell & Culwell, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Potter county of failing to stop and render aid; punishment fixed at a fine of $250 and 6 months in the county jail.

Appellant was charged under article 1150 of the 1925 P. C., with the operation of a motor vehicle which struck and collided with another vehicle containing people, and that he failed to stop and render aid to the occupants of the vehicle so collided with. Without stating at any length the testimony, we think it amply sufficient to support the jury’s conclusion that appellant did collide with another car, and that persons were injured thereby, and that he failed and refused to stop and render them any aid or assistance.

There are a number of bills of exception. The first complaint is of the refusal of an application for continuance made during the trial. Our statute (article 616, Vernon’s Ann. Code Or. Proc. 1916) provides for the granting of a continuance during a trial when proper application is made therefor, showing that something has occurred since the trial began which could not have been foreseen by the use of reasonable'diligence. The instant application' was made because of the absence of a witness who was on the car collided with, for whom no process had been issued, notwithstanding the case had been on file from September 17, 1925, to November 17th of said year, same being the date of the trial. This wholly fails to show that anything occurred during the trial which could be asserted by appellant as a matter of surprise which no reasonable diligence could have averted.

There is complaint at the action of the learned trial judge because of a statement made by him, apparently in an effort to clarify a question asked by the state’s attorney. It appears that the district attorney asked Dr. Patton the following question:

“State whether or not in your medical opinion it is necessary for them, (persons injured) to have medical attention, to determine whether or not — to ascertain the extent of their injuries and whether or not they need medical attention?”

And the witness answered:

“It is impossible to say. Some that never get medical attention survive, and some that get the best die.”

And at this point the trial judge said:

“Well, he asks, however, whether'or not, in a wreck that rendered persons unconscious, whether medical attention is necessary to see what is the matter with them.”

This last is the matter objected to. We do not think the action of the trial judge in so stating capable of any injury to appellant.

We are not able to fully comprehend the point in appellant’s bill of exceptions No. 3. It sets out an apparent colloquy between a state witness and counsel for appellant; same being concluded by a statement made by the witness as follows:

“Well, I heard the boy say so. He said, T wonder if they are going to 'pass or not.’ ”

This matter apparently related to a state-' ment made by the young man who was driv-r ing the car which was occupied by the persons injured in the collision, at or just prior to the occurrence. The bill shows that at this point appellant’s counsel requested the witness to not tell the jury what she had heard but only what she knew. If we understand the bill, appellant objected to this statement made to him by the witness, upon the ground" that it was not a part of the res gestee and not uttered in the presence of the accused; also that, in response to an inquiry made of the witness by the court, it was brought out that this statement was made very near the time of the collision: We are of the opinion the statement was res gestse, but, if there existed any doubt -as ■to the correctness of this position, we would not hold the matter one of any serious import. It is the statement of the driver of the car to the effect that he wondered if they were going to pass or not. The state’s theory was that appellant drove up opposite the car of the other parties and so near it for a distance that the fenders of the ears were scraping, and that he then drew away and ran into the car apparently on purpose, and knocked it in the ditch. Appellant’s theory was that he passed the car and did not know he struck it. We are unable to perceive .how the observation of the driver of the car as to whether they were going to pass or not could be considered hurtful.

Appellant also has ¿ complaint of questions propounded to defense witness Johnson by tbe district attorney relative to a statement made by him before the grand jury. It is stated that the district attorney handed the witness a statement in writing, and that witness admitted that he had signed the statement and claimed it was the truth; that the district attorney started to read from the statement, and did read as follows: “Did you make this statement to the grand jury: Merrill Kennison. * * *’?” At this' point the defense interposed an objec- | tion, which the court overruled, and the district attorney propounded the following question: “Did you make this statement to the grand jury: ‘Merrill, in reply to statement of girls that they would not do anything, told them they could get out and walk’?” Tlie materiality of this testimony, or its relation to the issues involved in this ease, is not made to appear in the bill of exceptions from any standpoint. The rule is well settled that one who reserves his exception must make the relevancy and materiality of his ■objection appear by such statements in the bill as will enable this court to determine whether the objection was well founded or not.

Another bill complains that, in response to a question to the' defense .witness Johnson as to whether he knew that appellant knew that the car had been wrecked, .witness answered that he did not think appellant knew that it was wrecked, or anything like that, that upon the district attorney objecting to the answer of the witness, the court remarked: “Wait a minute. Wait a minute. Don’t tell what you are thinking.” This remark of the court was objected to by appellant substantially on the ground that the court ought not to make such a statement. We do not think the statement an improper one. It might be more in keeping for the court merely to sustain the state’s objection, but for the court to tell the witness not to state what he was thinking, or to instruct the jury not to consider an answer improvidently made, which consisted of opinion of the witness, would not seem to be wrong.

Another bill complains of the cross-examination of defense witness Johnson, and that he was asked whether or not appellant was mad on the evening of the collision. Upon objection by appellant the court told the state’s attorney that he might ask if the accused appeared to be angry, whereupon the st.ate’s attorney changed his question and asked Johnson if appellant appeared to be angry on said occasion, to which witness replied that he did not know whether he was or not; that if he was he did not say he -was mad, that defendant did not appear to be angry or mad. Thereupon the state’s attorney asked Johnson if he had told the grand jury that defendant was mad, and he replied that he told the grand jury he would not swear defendant was mad or not mad because he was no mind reader. At this juncture the state’s attorney read from a written statement admittedly made by Johnson before the grand jury, the following: “He was mad”—and asked Johnson if he made that statement to the grand jury. It appears that the witness then testified that the grand jury asked him if defendant was mad, and he told them that he did not know whether he was or not, that-he read part of the statement before he signed it, and part of it he could not read; that he did not know whether he knew the statement was in the written statement at the time he signed it before the grand jury. We perceive no error in this matter. The written statement was never introduced in evidence, and we think it proper to ask the witness, for the purpose of refreshing his recollection, or for impeachment purposes if necessary, regarding his testimony before the grand jury.-

We perceive no material error in the state’s question to Appellant wherein he was asked if he was married. If erroneous, it was cured by the withdrawal of same by the court, and the jury were instructed not to consider same. The evidence overwhelmingly showed an intentional collision on the part of appellant with a car occupied by a number of people. Two of the occupants of the car were thrown out as a result of the collision, and one of them badly hurt. There is no dispute of the proposition that appellant did not stop or pay any attention to the result of his act. There was some evidence that his witness Johnson, who was in the' car with him, made some, effort to get assistance later.

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

On Motion for Rehearing.

The only complaint made in appellant’s motion is that we did not pass on the supposed error in the refusal of an application for postponement or continuance of the case because of the absence of a state witness. The court’s qualification to the bill of exceptions taken to this matter shows an entire lack of diligence in regard to the absent witness, who lived in the town and county, of the forum: nor is there an affidavit attached to the motion for new trial showing the truth of the matters stated as those expected to be proven by him. Appellant’s complaint is without merit.

The motion for rehearing is overruled. 
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