Appellant in his motion for rehearing admits that the court announced a correct proposition of law in the original opinion, in saying: "The objection to the evidence may be waived and is waived unless proper objection is made or timely motion to exclude is presented and proper bill of exception reserved exhibiting the ruling and the complaint thereof." However, appellant insists that the court did not pass upon the question presented by him which, as we understand his motion is; that although evidence has been admitted upon the trial without objection which would have been excluded had timely objection been interposed, this court should reverse the judgment if there is no other evidence in the *Page 297 record than that which might have been eliminated by proper objection at the time it was tendered by the state. We are not in accord with appellant's position in regard to this matter, and are unable to see how the one question insisted upon by him can be determined without also applying the rule which appellant himself admits to be correct. The statute (article 714, C. C. P.) provides that the husband or wife may, in all criminal cases, be witnesses for each other; but they shall in no case testify against each other except in criminal prosecutions for an offense committed by one against the other. It was at one time held that although one spouse may have been called as a witness by the other, that if in the cross-examination of said witness the state went further than was warranted by the examination in chief and developed new matter, that accused could take advantage of it without interposing an objection to the cross-examination at the time. This doctrine was departed from in the case of Ward v. State, 70 Tex.Crim. Rep., 159 S.W. 272. We quote from the Ward case as follows: "* * * it has always been held that where testimony is admitted without objection, and no motion was made to exclude it, no matter how erroneous it was in admitting it, it will not present ground for a new trial, nor reversal of the case on appeal. And while not passing on the Brock case (44 Tex. Crim. 335, 71 S.W. 20, 60 L. R. A., 465; 100 Am. St. Rep., 859), except in so far as to limit it to the rule there announced, we decline to make any further exception to the well known rule of law, that to the introduction of testimony an objection must be made during the trial, and if this is not done, the matter will not be reviewed after verdict, and such error in the introduction of testimony, if error there be, will present no ground for a new trial. It has always been the rule in this court that a party can not be heard to complain of illegal and incompetent evidence to which he did not object and except to at the time of its introduction, and which he made no motion to exclude during the trial of the case."
Following the foregoing statement in the opinion many cases are cited supporting the holding. Another illustration will be found in the application of the statute (article 727a, C. C. P.) which prevents the confession of one who may be in jail or in the custody of an officer from being admitted in evidence unless certain formalities required by the statute are complied with. Yet, it has been held many times that if a confession which lacks some of the formalities prescribed be admitted in evidence without objection it is a waiver on the part of accused of the objections which might have properly been interposed. See Walker v. State, 53 Tex.Crim. Rep.,110 S.W. 59. The same is true in our judgment with reference to appellant's contention in the present case; to-wit: that the search of appellant's car was made without probable cause and therefore that the evidence should not have been received under the provisions of article 727a, C. C. P. Although appellant interposed no objection to the *Page 298 evidence at the time it was offered, still it is insisted that this court should disregard the evidence and not permit the conviction to stand. If appellant's contention should be upheld, the mischief resulting would be hard to contemplate. In every case where certain evidence had gone into the record which might have been excluded upon proper objection, although objection was waived at the time, it would be urged that, disregarding such testimony, there would be left in the record no sufficient evidence upon which a conviction could be sustained. A holding to that effect would disorganize orderly court procedure and the effect would be little less than calamitous. Bennett v. State, 105 Tex.Crim. Rep.,286 S.W. 988.
The motion for rehearing is overruled.
Overruled.