Conviction of murder, punishment thirty-five years in the penitentiary. *Page 367
Appellant shot and killed Ben Savage. His theory on the trial was that he shot at one Lewis because he thought Lewis "was fixing to shoot" him. The state's theory was that appellant shot Lewis and then turned and shot Savage. The testimony is ample to support the state's theory.
Bills of exception Nos. 1, 2, 6, 7 and 15 complain of what are deemed to be comments by the learned trial judge on the weight of the testimony. Each bill has been examined and none of the statements attributed to the court below appear to us to be comments on the weight of the testimony before the jury. To illustrate: It is not such comment for the court to say that a question asked and not answered, is not material; nor for the court to say of a matter inquired about, that same was in the record. We find nothing in any of said bills of exception.
Complaint is made of the court directing appellant's counsel to take his seat while examining a state witness. It is not shown in the bill whether in fact counsel did so sit down, but we infer that he did. Such matters are practically of necessity confided to the discretion of the trial court. No injury is shown.
There is nothing in bill of exceptions No. 4 of any statement of facts which would afford us light on the materiality or relevancy of the things asked and rejected. Same further shows objection to a question not answered and not in itself harmful. Further, we might observe that the objection made to the court does not seem to have been acted upon.
Bill No. 5 shows that a defense witness was asked on cross-examination by the state if he was not under indictment for hi-jacking a white man, to which he answered "yes." Much argument seems to have been indulged in before the court below regarding a former trial of the witness upon said indictment, and as to the effect of the opinion handed down by this court. The discussion wound up by the trial court overruling the objection. We see no error in the matter. Even though we suggested in our opinion handed down in the trial of said case, that under the facts before the trial court, and at the time the case was originally tried, it would have been proper to direct a dismissal of the case, and that the accused be tried in a juvenile court, still, when the case was called for trial later, if it was discovered that he was over the statutory age of juvenility, he could not then be tried and sent to the reformatory, but would be tried as in any other felony case.
Bill of exceptions No. 8 shows that a state witness was asked if another state witness by the name of Lewis had been running a gambling house at the time of and prior to this shooting. The *Page 368 state's objection to this was sustained. Mr. Branch in Sec. 168 of his Annotated P. C. cites many authorities supporting the proposition that evidence of particular acts of misconduct is not admissible. See McAffee v. State, 17 Tex.Crim. App. 135; Conway v. State, 33 Tex.Crim. Rep..
No error appears in the action of the State's Attorney, during his cross-examination of a defense witness, in asking him if a certain writing, shown witness, was not signed by him, and if he did not therein make a certain statement at variance with his testimony given on this trial. The witness answered in the affirmative. Substantially the same complaints appear in bills Nos. 10, 11, 12 and 13. We are not in accord with the contention in either of said bills.
Bill No. 14 shows that during the cross-examination of a defense witness she was asked by the District Attorney if she did not tell him to put a certain matter in a written statement. This was objected to as being hearsay and tantamount to the attorney testifying, and as causing the jury to believe that witness was lying. Certainly it was an effort of the state to show that she was not telling the truth. We do not perceive any ground for holding that the attorney was testifying, and as far as the hearsay objection is concerned, we observe that practically all predicates laid to impeach witnesses will necessarily be hearsay as to the defendant in the particular case.
Bill of exceptions No. 15 shows that to a question asked by the State's Attorney, an argumentative answer was returned, and upon the question being repeated, the witness made an evasive answer. At this point defense counsel objected on the ground that state's counsel was arguing with the witness. The trial court suggested "She was arguing. She was asking him a question." We think the trial court stated the facts. The witness, not the examiner, was arguing.
Bill of exceptions No. 16 sets out that a defense witness was asked if she did not tell the State's Attorney, the day after the killing, and if it was not put into her written statement: "I called to him but he would not stop," to which the witness replied, "I might have told you that." The bill sets out numerous objections but no facts showing the immateriality or otherwise, or the possible harm of the question, or its answer.
We have examined bills of exception Nos. 17, 18, 19, 20 and 21 and find nothing in them a discussion of which could possibly *Page 369 be of any benefit. We are of opinion that none of them present error.
Being unable to agree with any of the contentions made by appellant, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.