McShan v. State

Appellant was convicted in the District Court of Montgomery County of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The facts seem to amply support the verdict. The prosecuting witness testified that on or about the 18th of June, 1922, at about 9 o'clock in the daytime and about a quarter of a mile south of Fostoria he bought a pint of whisky from appellant for which he paid him $1.75. Appellant denied this but admitted that he saw prosecuting witness on the 19th. By other proof it was shown that appellant was in and near Fostoria on the night of the 19th. The prosecuting witness was attacked by the defense and sustained by the State, as to his reputation for truth and veracity.

There are five bills of exception in the record. The first complains that while the defense witness Strode was giving testimony of a conversation had by him with prosecuting witness, he stated that at a certain point he asked said witness how the grand jury got his name on the indictment, — at which point he was interrupted by an objection by the State's attorney, which objection was sustained. The bill of exceptions merely states that appellant offered the proposed testimony to impeach the witness Balch who testified on cross-examination that he did not tell the witness Strode that he never bought whisky from the defendant. There is no attempt made in the bill to set out what the witness would have answered to the question propounded to him while a witness on the stand, the answer to which was objected to by the State. In such condition the bill presents no error.

Bills of exception Nos. 2 and 3 are in question and answer form and *Page 166 this court, following the mandates of Art. 846 of our C.C.P., must decline to consider such bills.

Bill of exceptions No. 4 sets out that the court failed to charge all the law applicable to the facts in evidence in that the evidence raised the issue of alibi, and further recites that "At the time of said trial defendant excepted to said charge because of the above mentioned defect therein, and now tenders this his bill of exception and asks that the same be approved," etc. There nowhere appears in the record any written exception to the court's charge such as is clearly required by the terms of Article 735 C.C.P. It is there stated that one desiring to except to the charge of the court must do so in writing pointing out specifically the error objected to. In addition to the fact that the record in this case fails to show that any exception in writing to the charge was presented, — the bill under consideration nowhere states that an exception in writing was taken. A bill of exceptions merely setting forth the fact that defendant excepted to the charge will not be sufficient to justify this court in concluding that the exception was in writing as the law requires, but on the contrary this court will be compelled to believe that the exception was not in accordance with the statute.

Bill of exceptions No. 5 complains of the refusal of a special charge. When we refer to said special charge as set out in the transcript at the time and place when requested of the court, there is nothing about it, either as a part of the charge itself or in any notation made thereon by the learned trial judge, which reflects the fact that it was presented to the court after the evidence was concluded and before the argument. An examination of the bill of exceptions under discussion reveals the same defect. It begins with the statement that upon the trial of the above cause the defendant presented to the court his written charge No. 1 as follows, and concludes with the statement that the court refused to give the charge and defendant then and there excepted to the ruling of the court and tenders his bill of exceptions, etc. It thus appears both from the special charge itself and from the bill of exceptions that the statute which requires special charges, in all save certain excepted instances, to be presented after the evidence and before the argument, was not complied with; or if complied with such fact is in nowise made known to this court.

There being nothing in the record reflecting the fact that appellant has not had a fair and impartial trial, and no error appearing, the judgment will be affirmed.

Affirmed.

ON REHEARING April 30, 1924.