We find at page 3 of the transcript a motion to strike from the record the evidence of the officers to the effect that they arrested the appellant on the street in the city of Uvalde and took from his person a pistol and other articles; that the defendant fled and was shot by the witness Miller and retained in custody of the officers. The motion is based upon the ground that the evidence was not admissible in the absence of a search warrant, and that there being no search warrant, the evidence was obtained in violation of Arts. 4 and 4a, C. C. P., 1925, and received in violation of Art. 727a, C. C. P., 1925. This document bears no authentication of the trial judge. On the minutes of the court there is endorsed an order overruling the motion in which it is said: "The defendant then and there excepted in open court." At *Page 668 what stage of the trial this motion was presented and acted on is not disclosed by the proceeding upon which it is sought to have this court review the action of the trial court. In Art. 2237, Rev. Civil Stat., 1925, the following statement is found:
"If either party during the progress of a cause is dissatisfied with any ruling, opinion, or other action of the court, he may except thereto at the time the said ruling is made, or announced or such action taken, and at his request time shall be given to embody such exception in a written bill. The preparation and filing of bills of exception shall be governed by the following rules;"
In nine subdivisions of the article the requisites of a bill of exceptions and the procedure with reference to its preservation and allowance are set forth. Where the ruling of the court on the admission of evidence or the refusal to exclude it, the statute requires that a bill of exceptions in writing shall be presented to the trial judge within the time allowed by law in which it shall set forth the evidence in substance, stating that it was received, that a motion was made to exclude it, the grounds of the motion upon which the exclusion was sought, and the ruling of the court thereon. When the bill is presented to the judge he has the opportunity to either allow the bill or file one of his own which would set up the facts true to the record. So far as we are aware, this is the only way in which the action of the court in refusing to exclude evidence can be brought up for review. This is made manifest by the many decisions of this court which are collated in Branch's Ann. Tex. P. C., Secs. 207-219; also in Vernon's Ann. Tex. C. C. P., 1925, Vol. 2, Art. 667, note 22, p. 362. See also Bargas v. State, 86 Tex.Crim. Rep.; Wilson v. State, 87 Tex.Crim. Rep.; Williams v. State, 94 Tex. Crim. 60; Abbott v. State, 94 Tex.Crim. Rep.; Martin v. State, 92 Tex.Crim. Rep.; Madsen v. State, 95 Tex. Crim. 439; Bailey v. State, 101 Tex.Crim. Rep.; Reid v. State, 105 Tex.Crim. Rep.. Either party is privileged to waive any objection to evidence, and where there is no bill of exceptions either to the receipt of evidence or to the refusal to exclude it, the record is in no condition to invoke a judgment of the reviewing court on the propriety of its receipt. The statute is definite in requiring that the matter be presented by a bill of exceptions. See Art. 667, C. C. P., supra.
The motion for rehearing is overruled.
Overruled. *Page 669