Appellant was convicted in the District Court of Jones County of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at three years in the penitentiary.
A motion was made to disqualify Hon. W.R. Chapman, the district judge who tried this case, but same was overruled and this action is made the subject of a bill of exceptions. Article 617 of our Code of Criminal Procedure contains an enumeration of those things which will disqualify a judge from sitting in any case. The grounds appearing in the motion in the instant case are not named in said statute. It was set up that the offense was alleged to have been committed upon a farm belonging to Judge Chapman and that he and his wife were present on the day of the alleged commission thereof, and that his wife was a witness in said case, and that the judge himself was cognizant of the facts. Judge Chapman did not testify in the case. As stated above, none of the statutory grounds of disqualification were made to appear. The motion was properly overruled.
The first bill of exceptions in the record complains of a question by the State to McKennon, a witness for appellant, the question and answer being as follows:
"I will ask you if just prior to that, you and this defendant's boy didn't come down here and threaten Mattie Cleveland and try to make her leave and not appear before the grand jury? To which the witness was permitted to answer, over the objection of the defendant: `I was there but wasn't there for that purpose.'"
The question is addressed to a matter which would be inadmissible without a showing of some connection of appellant with the mission and message of the witness, but the answer given and set out in said bill of exceptions only states the presence of the witness at Mattie Cleveland's place, and denies the purpose and statements which if in testimony would have been hurtful and would have rendered said testimony incompetent. The witness having so answered, the bill of exceptions presents no error.
Appellant's next bill of exceptions was refused by the court, who himself prepared and filed in lieu thereof a bill, the correctness of which is attested both by the court and the official court stenographer. *Page 597 The bill approved by the court sets out at length the testimony of a witness, at the conclusion of which it is stated that appellant said he objected to the testimony, to which the court replied the objection is overruled, and it is stated that appellant's attorneys said "we except." Appellant's next bill of exceptions is marked refused with the statement and qualification by the trial court, which it verified by the official stenographer, that no objection of any kind was made to the testimony set out in said refused bill.
Appellant's next three bills of exception are identical and are also marked refused by the trial court, and in lieu thereof the court below files a stenographic report of the testimony in question and answer form of the witness which is complained of, at the end of which testimony appears an objection by appellant which was sustained by the court as to the last question asked before said objection was made. There then appears a statement by appellant of an objection as follows:
"Mr. Farrow: We object also to the fact that young Payne or anyone else except the defendant himself, if they have established the fact that he did, we submit it without objection, but we have_____."
This court has often stated that attorneys may not sit quietly by and allow objectionable testimony to be introduced without stating some objection. In such case it is too late to make the objection after the testimony is before the jury. None of said three bills as same appear in the record show error. There also appears relative to said bills of exception, the affidavits of appellant's attorneys in which it is substantially stated that they made no specific and detailed objection to the matters complained of in said bills of exception, only stating to the court that they objected to the testimony; that the reason they took no more specific objection was that the court below had repeatedly told them that in each and every case where appellant objected to the admission of any testimony the court would allow a full bill of exceptions and would permit the affiants to incorporate in such bill of exceptions any and all objections to the admission of the testimony.
Practice such as indicated in these affidavits could seem but to lead to confusion and trouble, but in any event such action and statements of the trial court would seem to require of the accused that when the testimony was offered which was deemed undesirable, an objection should then be stated. The course pursued in each of the three bills above mentioned, as indicated by the stenographer's notes, to the correctness of which he certifies, was that after the objectionable evidence was before the jury appellant's counsel then said that he objected thereto. This would hardly seem to come within the broad promise of the trial court contended for by appellant's attorneys. We observe that the only safe rule is that one which has the approval of experience and judgment and in consonance with the statute, that is, that when an objection is made to such matters as are deemed hurtful, if it is not desired to then fully state the grounds of objection, that *Page 598 there should be made and reduced to writing or taken down by the stenographer some memorandum of the agreement between the court and counsel that the grounds of objection may thereafter be more fully stated to the particular matter. In all our courts of felony jurisdiction we now have official court stenographers who should make stenographic record of each question asked, each objection made, and each ruling of the trial court or agreement relative thereto, and it appears to us that there could be little room for dispute as to just what was said and done in any given case.
As we understand the record before us the objections made were not made until after the matter objected to was before the jury, and also that when the bills of exception referring to same were presented to the trial court, it appearing therefrom that all these matters were objected to properly and the objections overruled, the trial court declined to approve said bills of exception. It is stated in the affidavits of one of appellant's counsel that the court told him that he wanted to examine the stenographic notes before taking action on said bills, and that if he could not approve them in the form in which they were presented to him, he would simply mark them refused and would prepare bills of exception and have same filed in this cause. This course seems from the record to have been followed by the trial judge. Each of the three original bills are in the record marked refused and are accompanied by bills in lieu thereof prepared by the trial court, the correctness of which latter are certified to by the official stenographer as reflecting the facts as they actually took place.
We have expressed our views in other cases of the refusal of the trial courts to permit the taking of bills of exception at the time the matter objected to took place, but the instant case does not seem to us to fall fairly within that criticism. The assurance of the trial court that counsel need not fully state his objections but that upon the noting of an objection this would carry with it the right to thereafter amplify same, which is the substance of the affidavits as we understand them, could not be extended to cover a case in which no objection was made when the objectionable question was asked and the answer given, but to which objection was only made later in the course of the trial. Under the agreement with the court as stated in the affidavits, we take it that counsel should have stated when the question was asked that he had an objection thereto. The trial court would then have been given the opportunity to sustain or overrule such objection. If no objection was made until after the question was asked and the answer given, we can not understand how the trial court could have been able to perceive that the matter was deemed objectionable. Controversies over records on appeal are most deeply regretted by us, and we are sure, by those concerned. We can only take such course as seems in consonance with the law and justice. The bills of exception as approved by the trial court, as stated above, present no error. They *Page 599 were filed in time. No bystanders bills, such as are contemplated by statute, were filed. The affidavits filed do not sufficiently evidence a refusal of the trial court to allow the taking of bills of exceptions presenting the matters complained of.
It is urged that the evidence does not sustain a conviction. There seems no controversy of the fact that on the day of the alleged possession for purposes of sale of the intoxicating liquor, such liquor was found in appellant's car. We find in the record the testimony of a witness who was in the same field with appellant on the day in question, under the influence of liquor. Said witness testified as follows:
"I had been drinking whisky when Mr. and Mrs. Chapman came up; I might have been able to walk if I had tried, I didn't try. I guess that was pretty good whisky. It looked like that whisky there, that looks just like it. I got the bucket for him to put the whisky in. I first asked Mr. Payne to sell me some whisky and he said he didn't sell whisky, he said he could give it to Mr. McKennon and there was a bucket laying down there in the turn row and they says they couldn't pour it in a bottle without wasting it and I says I can get a bucket and you can pour it in the bucket and then pour it in the bottle. I got a bucket and then they poured that whisky into the bucket and bent it so you could pour it in the bottle; they poured it out of the fruit jar into the bucket and out of the bucket into a bottle. I then gave Mr. McKennon two dollars and a quarter. After they poured the whisky out of the jar I guess they left the jar in the car; it was in the automobile at that time; I saw Mr. Payne get it out of the automobile when he poured it in the bucket."
It might be contended that this evidence showed a refusal in words on the part of appellant to sell to witness the liquor in question, but if we understand the language used and the law applicable thereto, it sets forth facts showing appellant to be in possession of liquor which he was willing to turn over to another party to dispose of in his presence and in each step necessary to transfer the possession of which appellant was a participant. The fact that another party claimed the liquor as his was for the jury and they have decided it adversely to appellant. Appellant's witness McKennon, who said the liquor was his, said he got it from Henry Giles. The State put Giles on the stand in rebuttal and he denied having sold or given the liquor to McKennon. We are unable to agree to appellant's contention regarding the facts.
Having thus disposed of each of the matters appearing in the record and finding no error therein, an affirmance is ordered.
Affirmed.