The State has filed a motion for rehearing in which the correctness of our opinion on appellant's motion for rehearing is challenged. Our attention is directed to the recitals in the bills of exception as being insufficient to present the question of the use for impeachment purposes of indictments pending against appellant claimed to have grown out of the same transaction for which he was on trial. An examination of the bills leads us to the conclusion that the State's contention is right, and that we confused appellant's argument in his brief with the recitals in the bills. The impression made upon our minds, and the thing we desired to express in our former opinion on rehearing, was that it was obnoxious to all the rules of right and reason for the State to return more than one indictment against an accused growing out of the very same criminal act, and upon which only one conviction could be legally obtained, and then upon a trial under one indictment use the existence of the others as a means of affecting the credibility of accused as a witness. We adhere to that portion of our former opinion upon rehearing.
Bill of exception three recites that the State elicited from appellant on cross-examination that there were three other indictments pending against him in the district court of Van Zandt County. The foregoing is all the recital that the bill contains as to the facts. The objection urged to this testimony was that the other indictments were a part of and grew out of the same transaction as the one for which he was then upon trial and that such indictments could not be used for impeaching purposes. This was only ground of objection and did not amount to a certificate of the fact. In approving this bill the court specifically says: "The objection was made for the reasons assigned, but the court does not approve the assignment that the three indictments against defendant grew out of the same transaction, or that the State depended on the same witnesses." In bill of exception number two it is certified that the State was permitted to prove by the sheriff that there were five other cases pending against appellant in the district court of Van Zandt County. The very same objection was urged to his testimony as is found in bill number three and the same explanation attached to the bill, with the further statement that the court "was not advised in any way that the indictments grew out of the same transaction."
Our reports are full of cases supporting the proposition that a mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the bases of objection are true, but that it merely shows that such an objection was made, and that one who complains of the introduction of evidence should incorporate so much of the facts in his bill as would verify *Page 145 the truth of the objection. A long line of cases will be found collated under Section 209, Branch's Ann. P.C. supporting this proposition. Later cases to the same effect are Savage v. State, 91 Tex.Crim. Rep., 239 S.W. 945, and Smith v. State,92 Tex. Crim. 446, 244 S.W. 522. Many other cases could be cited but we deem it unnecessary. If there has ever been a departure from the rule stated we are not aware of it.
We have concluded that we were in error in sustaining appellant's motion for rehearing and the order to that effect is set aside, the State's motion for rehearing is granted, and the judgment of affirmance heretofore ordered is confirmed.
Affirmed.
ON REHEARING.