In our original opinion we stated that no bills of exception were in the record complaining at the reception or rejection of testimony. In this we were in error. No brief was on file for appellant, but in his motion for rehearing our attention is called to the trial judge's approval of the statement of facts which also contains a specific approval of the "bills of exception reserved therein." This is such an unusual procedure that we failed to observe the language of the court's approval until our attention was called to it in the motion. It appears well settled that exceptions to evidence admitted over objection of defendant may be embraced in the statement *Page 33 of facts, and that such exceptions will be considered under certain limitations and restrictions. (See Branch's Ann. P.C., page 138, Section 214 for collation of authorities.)
Appellant complains in one bill at certain testimony elicited by the State from the witness George Whitefield. The witness was an undertaker and prepared the body of deceased for burial. He testified that there were five bullet holes in the body of deceased entering from the left side; one entered just below the left nipple and one two or three inches below the left arm pit and a third which entered on the left side of the stomach; that a fourth bullet pierced the left thigh and a fifth one pierced the leg about the knee on the left side. After having described the wounds he testified "that in his opinion a man shot in the body like the deceased was shot would be able to walk after being so shot from the back yard up the kitchen steps through the kitchen and into the middle room of his own strength after receiving such wounds, notwithstanding he was of the age of deceased and old and decrepit."
This opinion testimony was objected to on the ground that the witness had not shown himself to be an expert nor qualified to give such an opinion. The evidence further shows that witness was not a practicing physician and had never studied medicine or surgery and was only acquainted with the art of embalming as a practical science. Such testimony was inadmissible, the witness not having shown himself an expert upon the subject about which he was interrogated, and the evidence should have been excluded. It remains then to ascertain whether the error committed by the learned trial judge in admitting such evidence demands a reversal at the hands of this court. Evidence was introduced of the firing of many shots both in the house and in the yard and some witnesses testified that as many as two shots were fired in the house after appellant and his brother had left the premises. Appellant himself testified that as he and deceased were struggling in the back yard deceased had a pistol which was fired several times. He disclaims knowledge as to whether any of these shots struck deceased or not, but claims that Will Brown, one of the inmates of the house, fired at them from the back door while they were struggling in the yard, and that from the weakening of deceased at the time he was sure one of these shots struck him. The issue was not whether deceased was able to walk into the house from the back yard after receiving the wounds, and in our judgment the testimony of Whitefield had little probative force. Appellant himself testified that after he had succeeded in getting loose from deceased while they were struggling in the back yard "and that as he ran on out and away Turner Gamble (deceased) went on back into the house."
So it appears from the testimony of appellant himself that deceased did return into the house without assistance, and we have been *Page 34 unable to discover under the circumstances in what way the inadmissible statement of Whitefield should be held to be reversibly injurious. Among other defensive charges presented was one instructing the jury that:
"— if you believe from the evidence some person or persons fired the shots at the time and place of the homicide which killed deceased, Turner Gamble, but you believe that said shots were fired by some persons other than Lonnie Reeves or his brother Walter Reeves, then in that event you will acquit this defendant; and if you have a reasonable doubt as to whether such other parties fired the shots which caused the death of deceased then you will give defendant the benefit of such reasonable doubt and acquit him."
The foregoing charge unquestionably authorized the jury to acquit appellant if any party other than his brother or himself fired the shots that resulted in deceased's death, regardless of where the shots may have been fired from, or whether they were fired before deceased left the house, while he was in the yard or after he returned to the house. Under the peculiar facts of the instant case we are constrained to hold that we would not be justified in reversing the judgment because of the objectionable testimony from the witness Whitefield.
While Bessie Brown, a witness for the State, was testifying she was shown a photograph and testified that it was a correct picture of the premises about the place where the homicide occurred; that it was taken on Wednesday following the shooting on Sunday. Appellant "objected to the exhibition of said picture to the jury because it was not shown by the testimony that said premises were the same as they were at the time of the difficulty and that the conditions were not the same; that on the day the picture was taken it was raining, and that the condition had generally changed and that the picture was not shown to have been taken under the same circumstances which existed at the time of the killing."
Whether a bill of exception appears in the statement of facts or in the record as an independent bill the rule is that the objection stated will not be regarded as a certificate of the trial judge that the ground existed upon which the objection is based. (For authorities see Section 209, page 134, Branch's Ann. P.C.). There is nothing in this bill which enables us to pass upon the correctness or otherwise of the objections urged, and we will not feel bound to examine the entire statement of facts to determine whether they afterwards developed. (See Branch's Ann. P.C., Section 214, page 52, and authorities there collated.)
The State's counsel asked appellant's witness Alex Robinson if he had not at one time been convicted of robbery in Dallas County. Objection was interposed because the records of the court were the best evidence. The inquiry was not for the purpose of disqualifying *Page 35 the witness, but only as affecting his credibility. It was not necessary to produce the judgment of conviction. Further objection was urged that the conviction inquired about was too remote. The conviction inquired about occurred in 1914, and the punishment assessed was five years in the penitentiary. After serving two or three years he was pardoned. The present case was tried in 1922. If he only served two years of this sentence he would have been at liberty something like six years when the inquiry was made. It is shown that since the pardon he had not been charged with any character of crime. The question was discussed at some length in Vick v. State, 71 Tex.Crim. Rep. and many cases reviewed. As stated by Judge Davidson in the Vick case, no iron bound rule as to the date of conviction can be laid down. This was illustrated in Oats v. State, 67 Tex. Crim. 488, 49 S.W. Rep., 1194. That it should not be the solely controlling issue can readily be seen in an instance where conviction may have occurred many years before, and the wtiness have remained in the penitentiary under that conviction up to within a short time of the trial. We are not inclined to hold that the conviction inquired about was too remote. The same principle was discussed in Bibb v. State, 86 Tex.Crim. Rep., 215 S.W. Rep., 312.
Appellant also complains because he was not permitted to ask a State's witness if he had not in 1910 been indicted in seven cases charging him with passing forged checks, and if the indictments were not dismissed in 1912. It is not necessary to pass upon the action of the court in sustaining the State's objection for the reason that the proof as to the indictments went into the record. Counsel had the original indictments in his hand which he presented to witness while making the inquiry. On re-direct examination the State proved by the witness that the indictments were dismissed in 1912, and was asked if counsel now representing appellant but then being assistant district attorney did not have them dismissed. He did not know who dismissed them. So it may be seen that appellant got the benefit, if any there was, in putting the jury in possession of the facts regarding the indictments against said witness. We discover no injury which could have resulted to appellant from asking if his attorney had not dismissed the prosecutions. Even if he had, there is not the slightest intimation that he acted otherwise than in good faith in the matter.
We have examined all other bills of exception incorporated in the statement of facts and none in our opinion present any error calling for a reversal of the judgment. The other matters relative to complaints at the charge of the court were considered upon the former submission.
The motion for rehearing is overruled.
Overruled. *Page 36