DISSENTING OPINION ON MOTION FOR REHEARING. Appellant's bill of exceptions No. 14 shows that a Mrs. Moore was on the stand as a witness for appellant, and had said that she had a conversation with deceased regarding the wife of appellant, and was then asked: "What did you tell him and what did he say to you?" The State objected without giving any ground therefor, and the court sustained the objection.
The bill of exceptions does not state that appellant then stated to the court what he expected the witness to answer but merely sets forth that "Had she been permitted to answer and testify she would have stated that a short time prior to the homicide and on two different occasions she had a conversation with deceased, etc." Then follows at length what deceased should have said on both occasions as well as what she said to him. If appellant did not state to the court at the time what his expected answer was, — the question obviously calling for a purely hearsay conversation between deceased and a third party, — so as that the court could have acted advisedly upon the question of whether the expected answer was admissible or not, under all the authorities the action of the court below in rejecting the testimony should be upheld. He who asserts error must affirmatively show same by his bill of exceptions. All presumptions are in favor of the correctness of the rulings of the lower court. My Brethren say that the court does not state in the bill that the expected answer was not then set before him. He is not required to so state, and to hold that he must, — is to cast aside the uniform presumption in favor of the correctness of the lower court's rulings and to shift to his shoulders the burden of showing the correctness of his action. This, to my mind, is a clear reversal of all our procedure and opinions in this regard.
In addition to the failure of the bill to state that the trial court was then apprised that the witness would state as follows, etc., the averment as to what the witness would have answered as stated in in the bill, makes clear that such averment is not as to what was then *Page 201 stated to the court, but is of what was later inserted in the preparation of the bill. When the bill shows that in answer to the specific question, "What did you tell him and what did he say to you," witness would have testified that a short time before the homicide and on two different occasions, etc., * * * deceased told her, etc., this so plainly states a purported answer which, if then put before the court as being that expected, would have promptly called from the court a sustaining of the objection, and seems to be a matter so plain as not to require argument or analysis.
Again, the lengthy statement set out as the substance of the two conversations which the witness was expected to state in answer to the question, comprised much of a lecture purported to have been given deceased by witness Moore. This would under no theory have been admissible. When a blanket bill of exceptions is taken to evidence, part of which is proper and part not, we always uphold the action of the trial court in the matter. I cannot sanction the rule here laid down in either particular. The motion for rehearing should be overruled. My Brethren not agreeing with me, I respectfully record my dissent.