This conviction was for assault to murder, the punishment being assessed at two years confinement in the penitentiary.
The facts are copied into and sent up in the transcript, and can not, therefore, be considered. On motion of the Assistant Attorney-General the facts are stricken from the record, inasmuch as the statutes require that in felony cases the evidence shall be sent up separately from the transcript.
Appellant's first bill of exceptions recites that the appellant asked Hawkins if it was not a fact that he had had a great many difficulties with various parties in the neighborhood over gaming and other matters, and if he had not threatened to kill Henry Ivie, and if he had not made the threat that the next time he had any trouble with one of those negroes he would not fight with his fist, but would take his gun to them or would use it on them, and was then asked if he had not drawn a brick bat on Robert Gilmour and threatened to brain him, and if he did not strike John Hays over the head with a rail, all just prior to the alleged shooting. The State objected because the matters were irrelevant and immaterial, and the witness would have answered, *Page 101 if permitted to do so, each of said questions in the affirmative. The purpose and object of this testimony is not stated in the bill of exceptions. Where testimony is offered by the appellant and is excluded by the court, the object and purpose of seeking such evidence must be shown by the bill, and usually such purpose must be stated. For the reason that the bill does not state the object and purpose of seeking to introduce this evidence, it is held that it does not sufficiently present the matter for revision.
2. Another bill shows that while McNeil was testifying, the district attorney, on cross-examination, asked him if "he was not shooting craps there that night, meaning the place where the game was shown to have been played." The witness denied playing. The district attorney was then permitted to prove by the appellant that he had been prosecuted and arrested, and was under bond for shooting craps that night. Appellant objected because this was immaterial, incompetent and improper, and because the credibility of the witness could not be attacked in such manner. This bill is rather indefinite and fails to show how this could have been injurious to appellant. It may have been that this character of testimony was legitimate in developing the matters incidental to and surrounding the trouble that night, if it is intended by this bill to state that the assault by appellant upon Hawkins was made on that occasion. It may have been legitimate further for the purpose of impeaching or contradicting this witness, but the trouble is, the bill is so indefinite that we are unable to tell whether from the face of it there was error in admitting the testimony. The court qualified the bill by stating that Hawkins had testified that this witness was in the crap game, and the witness denied it. The district attorney then asked the witness if he had not been arrested, charged with gaming on that particular occasion, and if he was not denying the fact that he played in order to keep from paying a fine. The court admitted this evidence, as he states, for the purpose of showing the witness' motive for thus testifying. As the bill presents the matter, we fail to see that there was sufficient error to require a reversal.
3. There is another bill of exceptions in regard to the testimony of the witness Shaw practically like the preceding bill and qualified in the same manner by the judge.
4. There is another bill which recites that Shaw, on cross-examination by the district attorney, was asked if it was not a fact that he had been prosecuted and had cases against him at Sulphur Springs, and if when he left that place he was not under bond and the bond forfeited. Objection was urged that this was irrelevant, immaterial, incompetent and prejudicial, and because the credibility of the witness could not be in this manner attacked. These objections being overruled, the witness denied leaving Sulphur Springs on account of any charges. He also denied that he was under bond, but admitted that he went away for about a year. The answer of this witness could in *Page 102 no way, as far as we can see, be injurious to appellant. The matters were left as testified by the witness, so far as the bill shows; his denial that he left Sulphur Springs on account of these matters was not attacked by the State or sought to be attacked. The answers, we think, were in no way damaging. It may have constituted a predicate for the impeachment, but there the matter rested.
5. Another bill recites that Humphrey, the county attorney, made the opening argument for the State. At this point counsel for appellant informed the court he did not wish to make an argument. Whereupon the district attorney demanded and was accorded the right to make an argument for the State. Appellant objected and it is recited that the district attorney did make a lengthy and able argument. The court approved this bill by stating that when the evidence was closed he asked the attorneys for both sides how much time was desired for discussing the case. After consulting among themselves it was announced to the court that they would take an hour and fifteen minutes. The county attorney, Humphrey, opened for the State. Appellant's counsel stated they did not desire to argue the case. The district attorney then proceeded to make an argument consuming the time allowed the State. In this there was no error. This direct question was decided adversely to appellant in Vines v. State,31 Tex. Crim. 31.
The judgment is affirmed.
Affirmed.
ON REHEARING. April 19, 1911.