It is insisted that we erred in declining to consider appellant's bill of exceptions No. 2, our action being based *Page 167 on the fact that said bill was in question and answer form. We have again examined it and have concluded that said bill should be considered, but in view of the qualification placed thereon by the trial court same presents no error. The evidence referred to in said bill, the rejection of which is complained of, would have had no effect save that of impeachment of the witness Balch. The court qualifies the bill by stating that Balch admitted while on the witness stand that he did lie to the witness at the time referred to in the impeaching testimony and stated that the reason he did so was because he was afraid of appellant. One who admits the truth of a predicate laid for the purpose of impeachment thereby renders useless the admission of impeaching testimony.
It is also complained that we erred in declining to consider bill of exceptions No. 5 relating to the refusal of a special charge. The reasons for our refusal appear in the original opinion. In Harper v. State, 86 Tex.Crim. Rep., 217 S.W. Rep. 703; Grissom v. State, 87 Tex.Crim. Rep., 222 S.W. Rep. 237, Lucas v. State, 88 Tex.Crim. Rep., 225 S.W. Rep. 257; Berlew v. State, 88 Tex.Crim. Rep., 225 S.W. Rep. 518, and many other cases which might be cited, this court had adhered uniformly to the rule that unless a special charge shows upon its face or by some notation thereon made by the trial court, that the same was presented after the evidence closed and before the argument begun, — or unless the refusal of said charge be complained of by a separate bill of exceptions in which the said facts were shown, this court could not consider such bill. We presume upon appeal that the trial court acted upon reasons sufficient unless the contrary is made to appear, and the learned trial judge in the instant case having refused the special charge, we presume that he refused it, if for no other reason because it was not presented in time. The rule seems well settled.
The motion for rehearing will be overruled.
Overruled.