The appellant was convicted of perjury, and his punishment assessed at three years in the penitentiary.
This is the second appeal of this case to this court; the former appeal will be found in 272 S.W. 170, where a sufficient statement of the facts is given.
The record contains twenty-four bills of exception, the number of which precludes a separate consideration of each bill. Bill No. 1 complains of the refusal of the court to sustain appellant's motion to quash the indictment. There is no error shown in the ruling of the court on this issue.
Bills Nos. 2, 3, 4 and 5 complain of the action of the court in permitting the state to reproduce the testimony of Judge Terrell, deceased, given on the former trial to the effect that the citation in the divorce proceedings between appellant and his wife was by publication, and that same was a civil suit and the issues were joined therein, appellant's contention being that said testimony was not the best evidence. The record discloses that the petition and affidavit for citation by publication were afterward introduced in evidence, which would render the evidence complained of in this bill harmless, even if the admission thereof was error.
Bill No. 6 complains of the action of the court in permitting the state to introduce the affidavit of appellant for citation by *Page 210 publication. There is no merit in this contention, and if any error was shown same would become harmless on account of other testimony of the same character being introduced without objection. Campbell v. State, 89 Tex.Crim. Rep.,230 S.W. 695; Flores v. State, 89 Tex.Crim. Rep., 231 S.W. 786; Emmons v. State, 273 S.W. 253.
Bills Nos. 7, 8 and 9 complain of the action of the court in permitting the state to introduce in evidence the written confession of the appellant, and especially that portion of same stating that appellant had a boy about three years old, and that shortly after he left his wife at Wichita Falls he began living in adultery with a woman by the name of Warren, the objection being that said portions of the confession were prejudicial and immaterial. The same character of evidence was introduced from other witnesses without objection, and what we have said with reference to bills Nos. 2, 3, 4 and 5 fully applies to these bills.
Bill No. 10 complains of the action of the court in permitting the state to prove by appellant's wife that she had lived in Wichita Falls for ten years, with exception of two years, when she lived in the town of Bowie, and that the appellant was her husband. This bill discloses that as soon as this witness testified that she was the wife of appellant, the court, upon inquiry of said witness, discovered that the judgment in the divorce proceedings granted appellant by Judge Terrell, had afterward been set aside and refused to permit the state to interrogate said witness further. No request was made to withdraw this testimony from the jury. This bill, as presented, shows no error. There was an abundance of testimony from other sources, introduced without objection, as to the residence of the appellant's wife and to the same effect as testified to by her.
Bill No. 12 complains of the action of the court in permitting the state to introduce the judgment in the divorce proceedings between appellant and his wife wherein the divorce was granted by Judge Terrell, deceased, to the appellant, the grounds of objection being that same was prejudicial and immaterial. This bill, as presented, shows no error. The matters set out in said judgment were fully testified to by other witnesses, without objection, and if any error was committed in the admission of same, it was harmless. The appellant's objection was not to any particular portion of said judgment and was too general. See Spearman v. State, 68 Tex. Crim. 449, 152 S.W. 915.
Bill No. 14 complains of the refusal of the court to instruct the jury not to consider the testimony of the appellant's witness, *Page 211 Fuller, to the effect that he was appointed by the court to represent the defendant cited by publication in the divorce proceedings, appellant contending that the order on the minutes of the court would be the best evidence of his appointment. Other testimony to the same effect as that complained of in this bill is in the record without objection, and there is no error shown in this bill.
What we have said with reference to bill No. 14 fully applies to bill No. 15.
Bill No. 17 complains of the refusal of the court to permit appellant to prove by the attorney, C. H. Rogers, who represented him in the divorce proceedings, what advice or counsel the witness gave to the appellant relative to the divorce suit in question. This bill is defective in that it fails to show what the appellant expected to prove by said witness. This court has repeatedly held that such bills will not be considered where the court cannot determine from the bill itself the supposed error complained of, Hill v. State,230 S.W. 1005; Thompson v. State, 234 S.W. 401; Nugent v. State, 273 S.W. 599.
Bill No. 19 complains of the action of the court in permitting the state to prove by appellant on cross-examination that he was living in adultery with Ina Warren in Fort Worth during the pendency of the divorce suit against his wife. There is no error shown in this bill. There was other testimony to the same effect introduced in evidence without objection thereto, and, besides, under the facts in this case, this testimony was admissible to show motive, and to rebut appellant's contention that the divorce proceedings were based on the misconduct of his wife, and especially in view of appellant's marriage to said Ina Warren soon after the divorce was granted.
Bills Nos. 18 and 21 complain of the action of the court in permitting the state, on cross-examination of the appellant's witness, C. H. Rogers, to read from the statement of facts prepared and signed by said Rogers in connection with the divorce proceedings, the statement being to the effect that the appellant testified therein that he had not seen his wife for several years and did not know where she was. Appellant also objected to the introduction of the statement of facts by the state in evidence to the jury. The appellant objected to said testimony because same involved hearsay acts and declarations not binding on him. In the former appeal, this court held that this evidence was admissible for impeaching purposes, but that the court should limit same to the purposes for which it was introduced. In the instant *Page 212 case the trial court followed the direction of this court in the former appeal, and consequently no error is shown in this bill.
Bill No. 20 complains of the action of the court in permitting the state, on cross-examination of the appellant, to ask him if it were not a fact that at the time he was arrested and brought to the courthouse and saw his wife, he broke down and admitted the whole thing and stated that he lied in order to get a divorce and marry Ina Warren, all of which was answered in the negative by the appellant. This court holds that where improper testimony is attempted to be elicited and a negative answer is given, same ordinarily is not error. Ard v. State, 276 S.W. 263. However, the same character of testimony sought to be elicited from the appellant was embraced in appellant's written confession which was introduced by the state in evidence to the jury.
We have carefully examined the entire record, and failing to find any reversible error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.