The appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and from this judgment he prosecutes this appeal. The record contains what purports to be a statement of facts in the case. No file mark appears on the statement of facts, and we are not informed when it was filed. It is properly approved by the judge, but whether filed in term, ten days after, or subsequent to the adjournment, we are not informed. It cannot therefore be considered for any purpose. In the absence of a statement of facts, we cannot pass upon the action of the court in refusing to continue or postpone the case. While the diligence may have been perfect, and the testimony of the absent witnesses material, we cannot determine whether such testimony was probably true, because it is tested by the testimony introduced upon the trial, which is not before us. In passing upon the charge of the court, the rule is that, if the charge as given was applicable to any state of facts, we must hold it sufficient, in the absence of a statement of facts, unless it contains an expression of the court as to the credibility of the witness or the weight to be given to the testimony, or unless it sums up the testimony, or contains something which is calculated to arouse the passions and prejudice of the jury against the accused. We have examined the charge of the court, and find no error in it, tested by the allegations in the indictment. In the absence of a statement of facts, a charge might violate the provisions of Art. 678, Code Crim. Proc., which would be reversible error, because this article expressly inhibits the court from using any argument calculated to arouse the sympathy or excite the passions of the jury. The charge does not comment upon the testimony, does not sum up the evidence, or express an opinion as to the weight of the testimony. It is therefore without objection in this respect.
It appears from the record, by a bill of exceptions, that an operation *Page 397 was performed upon the deceased, soon after he was shot; that before the operation he made a statement in regard to how he received the wound, from whom, and giving the circumstances attending the shooting. His statement was reduced to writing, and, over the defendant's objection, introduced in evidence as containing his dying declaration. The objection was that the deceased was not conscious of approaching death, that there was a lingering hope of recovery remaining with him. This is assigned as error. In reply we have to say: First, that a bill of exceptions, in the absence of a statement of facts, must show upon its face that it contains all of the evidence introduced on the trial in regard to the matter complained of; second, that, while this written statement may not have been admissible, the deceased may have, when conscious of approaching death or immediate dissolution, referred to it, and approved it as a correct statement. The statement of facts supports this proposition, and it demonstrates that this may occur. While we cannot consider the statement of facts, we allude to it as an illustration of the correctness of the rule we state, viz: That all of the testimony bearing upon the question as to whether he had a hope of recovery or not must be stated. The bill of exceptions must show that that was the only statement that he made; for if he approved the written statement, or made a declaration afterwards, when fully conscious of approaching death, which was consistent with that statement, which had been reduced to writing, no injury could result to the accused. The written statement, standing alone, was not admissible. There was a lingering hope of recovery. But we are not informed by the bill that this was all the testimony bearing upon the condition of the deceased's mind; and, as has been stated, afterwards, when the deceased was conscious that he was about to die, he may have referred to the written statement, and approved the same as a correct version of what occurred at the time of the shooting; and the second bill of exceptions, bearing upon this subject, shows that he did do this. If the deceased gives a version of what occurred at the time the fatal wound was received, believing that he would recover, and his statement is reduced to writing, and if, afterwards, he, believing that he was going to die, refers to and approves the statement as being correct, the statement is competent testimony as dying declarations. Mockabee v. Com.,78 Ky. 380; Young v. Com., 6 Bush, 317; Reg. v. Steele, 12 Cox, Crim. Cas., 168; State v. McEvoy, 9 S.C. 208.
The objection to the testimony of Patterson is not well taken. The testimony shows bitter feelings on the part of the defendant towards the deceased, and also establishes threats of a very serious character, and is therefore admissible upon other grounds. The appellant's bills of exceptions, Nos. 6 and 7, are not approved by the judge. The appellant did not bring himself within the rule laid down in Exon v. State, 33 Tex. Crim. 461. Bill of exception No. 8 complains of the remarks made by the District Attorney to the jury. If the remarks were improper, the court acted very promptly in instructing the jury not to regard *Page 398 them. The appellant moved for a new trial upon the ground that he was surprised at the testimony of the witness, William Teal. This cannot be relied upon for a reversal, in the shape in which it is presented. When surprised by the testimony of a witness, the party cannot continue the trial, and urge this matter for a new trial. He must move to withdraw his announcement, and ask for a postponement or continuance of the case so that he can meet the testimony of the witness. This is a well settled rule. In regard to the motion to withdraw the announcement and continue the cause because of the testimony of the witness, Freeman, we make the same observation as we did in regard to the continuance of the case. In the absence of the statement of facts, we cannot determine whether the testimony of Freeman, if he had been examined in the case, was probably true. This question can only be determined upon all of the facts in the case. The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.