In connection with his motion for rehearing appellant brings forward a supplemental transcript containing bills of exception numbers three and four, which merely show exceptions to the court's qualifications to bills of exception numbers one and two.
Bill number two was in question and answer form, and it was recited in the body of the bill that the trial judge certified that such form was necessary. Among other things stated in what purports to be the court's qualification was a statement that the court "does not certify to the necessity of putting the bill in question and answer form. The court sees no reason why this bill should not be governed by the ordinary rules relating to preparation of bills of exception." It is appellant's contention that as bills three and four show that the qualifications to bills one and two were made and filed without notice to appellant's attorney that the notation mentioned should be disregarded as a qualification. We are not in accord with appellant in such contention. Art. 760, subdivision 3, C. C. P., reads as follows:
"* * * In all felony cases appealed, whenever the State and defendant can not agree as to the testimony of any witness, then so much of the transcript of the official court reporter's report with reference to each such disputed fact shall be inserted in the statement of facts as is necessary to show what the witness testified to in regard to the same, and constitute a part of the statement of facts, and the same shall apply to the preparation of bills of exception. Such stenographer's report, when carried into the statement of facts or bills of exception, shall be condensed so as not to contain the questions and answers except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved."
Said article very clearly provides that bills shall not be in *Page 483 question and answer form unless in the opinion of the trial judge such form is necessary. The quoted memoranda on bill number two shows that in the judge's opinion said form was not necessary, and we think it should not be regarded as a qualification to which exception may be taken. This disposes of bills two and four.
We are of opinion that bill number three shows that the qualification to bill number one should not have been placed thereon without the consent of appellant, and that the bill must be considered without such qualification. In fact in our original opinion the bill was disposed of without reference to the qualification. The bill shows that on cross-examination appellant admitted that he had been indicted in Randall County for theft of property over the value of fifty dollars. On redirect examination he was asked by his counsel if that indictment had not grown out of a "family squabble"; objection was interposed to said question and was sustained. The bill then proceeds as follows:
"That the defendant, if he had been permitted to answer said question, would have testified that said indictment had grown out of a family squabble; that it all came out of a gun play that was made on him by one Frank White; that White had been his landlord; that he, the defendant, was farming two sections of White's land and that Durrup was farming two sections of White's land; that White came over there and jumped the defendant up with a pistol and had another fellow with a pistol impersonating as an officer and threatened the defendant that he had come over to give him his pedigree; and the defendant would have testified that he, the defendant, knew the indictment in Randall County inquired about had grown out of this old trouble."
If appellant had been permitted to testify to everything recited in the bill it is observed that there is no averment of innocence of the theft charge in Randall County; no claim that any member of appellant's family instituted the prosecution or was a witness in the case, and nothing to support what appears to be only the expression of appellant's opinion that the prosecution grew out of a "family squabble." We therefore adhere to our original opinion that no error is shown which demands a reversal.
The motion for rehearing is overruled.
Overruled. *Page 484