Conviction for murder in District Court of Grimes County, with punishment fixed at ten years in the penitentiary.
We find in the transcript no bills of exception. In the statement of facts there appear several notations of objections to testimony without anything to evidence the fact that an exception was taken save in one instance. Appellant offered in evidence the examining trial testimony of one Roy Beckham for impeachment purposes, claiming that said Beckham had not testified in preliminary trial to anything relative to cursing, and that he desired to introduce that part of the testimony taken down in the examining trial which showed that said Beckham had not testified anything about cursing. The state thereupon offered all of said examining trial testimony. Appellant's counsel stated that they objected to it except for impeachment purposes. The State contended that if one party introduced part of a document the other had a right to introduce the remainder. *Page 616 Appellant's counsel stated that they objected because this was the testimony had at a former trial of the case, a portion of which was introduced for impeachment purposes, and the remainder did not thereby become admissible. The court overruled the objection and it is stated that to this the appellant excepted.
It becomes evident from the above that appellant introduced the examining trial testimony for the purpose of showing that Beckham did not testify to certain things upon said trial. We are at a loss to know how he could establish the fact that said witness did not so testify, except by the introduction of all his examining trial testimony. Appellant could only make his proposed proof by a process of exclusion, and without the introduction of all the testimony of the witness Beckham so given at the examining trial, we cannot see how he could satisfactorily show that said witness had not testified regarding cursing. The record wholly fails to show what part of the examining trial testimony appellant offered or introduced, and in this condition we cannot appraise the injury, if any, of the introduction of all the testimony. With the exception of the above, we find nothing in the statement of the facts introduced on the trial of the case which could in any way be construed as a bill of exceptions.
In his motion for new trial appellant sets up misconduct of the jury in that they discussed in their retirement certain matters. The court heard evidence on this point and overruled the motion. We think the record discloses no abuse of the discretion of the trial court in the matter.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.