Appellant again complains of many matters already decided by us in our original opinion, and seems to lay great stress upon a statement made by the trial court in its qualification of some of his bills wherein it is said that the subject matter of the bill was not mentioned nor urged in the motion for a new trial herein. We think such a statement by the court was but a preliminary to the qualification and not intended to mean that because of such omission, same should not be considered by the appellate court. We consider all bills properly prepared, approved and filed, and do not limit our consideration to matters found in the motion for a new trial. In Acosta v. State, 72 S.W.2d 1074, it was held that although a motion for a new trial was sworn to, it did not prove the truth of matters set up therein, but was only a pleading.
It is shown conclusively that after appellant's arrest he was taken from the premises and placed in a police car in the custody of two officers some distance from the garage apartment where appellant's wife lived. It was also shown that the officers then asked appellant's wife for permission to search such apartment, and she gave such permission. Again we think her answer to such request was admissible, and not only proven by one officer but also by another officer who heard such conversation.
Upon such search, consented to by the wife, were found certain articles, such as a white handled knife, like one described *Page 466 by the little girl as being used by appellant in threatening and cutting her, a cigarette lighter similar to one used by appellant in her presence, as well as bloody clothes and muddy shoes.
If the arrest was illegal, to which the writer does not agree, there was nothing revealed from the incidental search of appellant save his stubby mustache and the ring on his finger. The presence of the mustache upon his face at the time of the arrest and its absence at the time of the trial was testified to by witnesses without objection at the time of the trial, and Deputy Sheriff Maldonado testified that the silver ring shown him at the trial had been taken by him and Deputy Sheriff Carnal off appellant's finger, and this ring was offered in evidence as exhibit No. 21. We have searched the record again and find no objection to the introduction of this ring, said to have been taken from appellant's hand and introduced as exhibit No. 21. Therefore all that was obtained by virtue of this arrest of appellant was that he had a stubby mustache and a silver ring on his left hand. Both of these propositions entered the record from other sources without objection, and we see no error reflected herein because of the arrest of appellant under the circumstances herein portrayed.
Relative to the complained of remarks of the district attorney, we think these bills were propertly disposed of in the original opinion and need no further discussion.
This case evidences effective and intelligent efforts upon the part of the officers, and as presented leaves no room for reasonable doubt that the proper person who committed this offense was brought to trial.
Appellant's attorneys, both appointed by the court, deserve commendation for their diligent efforts in his behalf. After a careful review of this cause, and appellant's contentions in his motion, we are still convinced of the correctness of the views expressed in our original opinion.
The motion for a rehearing will therefore be overruled. *Page 467