It is evident from the bill complaining of the irregularity of the election of a special judge, and of all subsequent proceedings affecting this case, that the trial term of the court below was not adjourned by the sheriff or constable at any time subsequent to the day of the convening of court under the statute, and prior to the election of the special judge who presided in this case. It is also plain that on the morning of the fourth day of said term, in accordance with the provisions of Art. 1922, Revised Civil Statutes, 1925, a special judge was elected by the members of the bar present, which judge, after due qualification, proceeded to assume the duties pertaining to said office and to sit during said term of court at which this case was tried.
We adhere to our holding that it was not intended by the terms of Chap. 156, Acts Regular Session, 40th Legislature, to repeal existing laws providing for the time and method of electing special *Page 211 judges, as in ordinary cases. Said Art. 1922, supra, seems to include the morning of the fourth day of the term of court as proper for the election of such judge, when said court has not been adjourned for the term. T. M. Ry. Co. v. Douglass,69 Tex. 694; Garza, et al. v. State, 12 Texas Crim. App. 261.
Bill of exceptions No. 4 makes no specific complaint which we can appraise. Evidence of intimacy of appellant with his stepdaughter, and that it had reached a stage where its discovery seemed imminent and inevitable, and that to shield himself appellant caused said girl to falsely accuse deceased with being the author of her shame, which seems to have been used by appellant as an excuse to kill deceased according to the State's contention, would be pertinent. This does not seem controverted in the bill whose objection was that too much proof of such facts was allowed. If appellant so concluded, he should have set out in said bill a definite fact, — a certain part of the testimony, — a definite boundary, where the admissible ended and the other began. He did not do so.
The killing was in April 1927. The girl in question was allowed to testify that in March 1927 she and appellant decided that she was pregnant, and he began to give her medicine. Objection that this was evidence of a different offense from that charged, would not seem to avail. It is allowable to prove the commission of a distinct offense when same becomes a part of the proof of the case on trial. Kelly v. State, 31 Texas Crim. App. 211; Dawson v. State, 32 Tex.Crim. Rep.; Knauf v. State, 108 Tex.Crim. Rep..
Bill No. 6 sets out none of the facts or circumstances surrounding the killing or that led up to same. For aught we know therefrom, it may have been exceedingly material for the State to explore to its beginning the intimacy between appellant and his stepdaughter. When we are asked by a bill of exceptions to hold erroneous the rulings of the court, such request must stand or fall on the averments of the bill itself.
A complaint at the admission of a written confession based on the fact that said paper "Has other things on it," can not be sustained where same does not set out what the other things on said paper, are.
Appellant's bill No. 8 sets out two full pages of the testimony containing the cross-examination of his witness Annie Wheeler, part of which was plainly admissible. We can not consider such a bill.
Being unable to agree with any of the matters set up in appellant's motion, same will be overruled.
Overruled. *Page 212