Short v. State

GRAVES, Judge.

Appellant was convicted of murder without malice, and given two years in the penitentiary.

There is no statement of facts brought forward in the record.

Appellant complains in his first bill of exceptions of the court’s overruling his application for a continuance because of the absence of the witness Eugene Fountain, who it was alleged would give certain favorable testimony for appellant. The trial court’s qualification to said bill recites that upon certain information and notice to defendant’s counsel, the court conducted a hearing, and ascertained that defendant’s counsel, in the presence of the defendant, had excused this witness from attendance upon the court at the time of the trial hereof. We think under Art. 543, subdiv. 4, C. C. P., that the witness was shown to have been.“absent by the * * * consent of the defendant.” Also see 9 Tex. Jur., Sec. 142, p. 848, and authorities there cited.

Bills of exceptions Nos. 2, 3 and 4 can be treated together. It appears that one witness for the defendant was a man by the name of George Maxey. Since there is no statement of facts it cannot be definitely stated what all of his testimony was; however, it does appear that on his direct examination he testified to facts showing that he was present at the scene of the difficulty which resulted in the death of Booth, and that he was shot in said difficulty. He apparently testified that the shot which took effect in him was accidental. He was asked on cross-examination if he had not, after the time of the homicide, stated to a deputy sheriff named Holt and to the county attorney Wilburn that the shooting of him by the defendant was not an accident and that defendant shot the deceased for nothing. After the witness had stated that he had not previously made such contradictory statements the deputy sheriff Holt and the county attorney Wilburn were placed on the stand by the State and it was proven through them that the witness Maxey had made such prior inconsistent statements. The bills of exception complain both of the cross-examination of the witness Maxey and of the impeachment testimony given by the county attorney and deputy sheriff. It is contended that to impeach him concerning whether or not the shot which took effect in him was accidental was impeaching him on a foreign matter. We really do not think that the bills of exception can be appraised because there is no statement of facts in the ecord and the bills themselves do not show that the testimy set out is all of the testimony bearing upon this issue. ere may be some facts in the record which would clearly 'e the testimony admissible, and in the absence of a showing m che bill itself that this is all of such testimony, the bill may not be appraised. Stewart v. State, 2 S. W. (2d) 441; Pilgrim v. State, 219 S. W. 451; Riley v. State, 255 S. W. 171; 4 Tex. Jur., Sec. 168, p. 235.

Bills of exception Nos. 6 through 9 complain of the court’s charge. In the absence of a statement of facts these bills of exception may not be appraised. 4 Tex. Jur., Sec. 170, p. 238, and numerous authorities there cited.

By bills of exception No. 5 the appellant complains that Dr. O. S. Oates, whose qualifications were admitted, testified that one bullet entered the front of the deceased’s body above the left nipple and one below the left nipple, and that either wound was calculated to produce death, and that in his opinion was produced by a 38 caliber bullet; and thereafter the doctor was permitted to testify whether or not he thought it was physically possible for a man shot as he testified the deceased was to close up his knife and put it in his pocket after such wounds had been received. This evidence was permitted over the objection that it called for a conclusion and also that the doctor had not shown himself qualified to testify to such facts. The bill does not show that this is all the testimony of the same nature and it is quite possible that the statement of facts would reveal similar testimony which was unobjected to. In the absence of such a statement of facts the court cannot appraise the bill, particularly where the bill does not preclude the presence in the record of the same testimony from other sources.

Finding no error shown, the judgment is affirmed.