1. A bill of exceptions, to entitle it to be
considered by this court, must have been presented to the trial judge during the term at which the trial was had for his allowance and signature, and within ten days after the conclusion of the trial. (Rev. Stats., Art. 1363; Code Crim. Proc., Art. 686.) | In this case a bill of exceptions, objected to by the Assistant Attorney General, was allowed and signed by the trial judge, and filed in the record, during the term, and within ten days after an order of the court overruling the defendant’s motion for a new trial. This, we think, was in compliance with the : statute, and we so understand the statute to have been con- . strued by our Supreme Court. (R. R. Co. v. Joachimi, 58 Texas, 452; Blum v. Schram & Co., Id., 524.) The judgment of the court overruling the motion for a new trial being regarded as the “conclusion of the trial.” 'If there had been no motion for new trial made, nor motion in arrest of judgment, the conclusion of the trial would be; we think, when the verdict of the jury is returned into court and has been received. (McCall v. The State, 14 Texas Ct. App., 353.)
3. It appears from a proper bill of exceptions that the prosecuting witness Tabor, whose money is charged to have been stolen by defendant, when testifying in the case in behalf of the State, instead of confining his testimony to facts, persisted in stating his suspicions and conclusions as to defendant’s guilt. This was objected to by defendant’s counsel, and the court was requested to require the examination of this witness by the district attorney to be so conducted as to elicit direct answers. The court refused to regulate the examination of the witness, but instructed him to confine himself to stating facts in answer to questions propounded to him, and the court also instructed the ¡ jury to disregard any statements made by the witness which ( were merely the suspicions, conclusions or opinions of the witness. Notwithstanding the court’s instructions to this witness, *330he still persisted in injecting into his testimony before the jury statements which were not evidence, and which were well calculated to prejudice the defendant in the minds of the jury. It also appears from the bill of exceptions that on a former trial of this case this same witness had testified in the same objectionable mannér.
In his motion for a new trial the defendant made the conduct of this witness one of the grounds of his motion. In view of the very meagre evidence in the case tending to prove defendant’s guilt, it is very probable that the illegal statements made by this witness, evincing, as he did, his conviction of defendant’s guilt, influenced the jury in their verdict. The court, we think, was altogether too lenient with this witness. When he persisted in putting before the jury his suspicions, conclusions and prejudices against the defendant, after repeated requests and instructions not to do so, he should have been fined for contempt, and, if need be, imprisoned.
As to the inculpatory facts proven against the defendant, they are very few and of a very uncertain and unsatisfactory character. Tracks similar to his were discovered at the place where the money was lost, and these, tracks were followed to his gate. These tracks, in connection with the witness Tabor’s suspicions and conclusions, constitute the case of the State. No other facts, except as to the tracks, were proved by the State, which are entitled to be regarded as inculpatory, and the proof as to the identity of the tracks found with those made by the defendant is by no means certain. In our opinion, the evidence, even when supplemented with the witness Tabor’s suspicions and opinions, is insufficient to exclude every other reasonable-hypothesis than that of defendant’s guilt.
We think the court erred in not granting the defendant anew trial, and for this error the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered May 28, 1884.