Bryant v. State

Willson, Judge.

I. Sheriff Townsend, a witness in behalf of the State, was permitted to testify that he arrested the defendant on this charge; that, while having him under arrest, he caused him to remove his overshirt and expose to view his undershirt, which had spots of blood upon it, and that said witness at that time had not warned defendant that statements made by him might be used in evidence against him. Said witness was also permitted to identify said undershirt, and to exhibit the same to the jury for their inspection. Defendant saved a bill of exceptions to the ruling of the court admitting this evidence, but we are" not informed by said bill of the objection, or objections, made to the admissibility of said evidence.

In Mayo v. The State, 7 Texas Ct. App., 342, it is said: “Inasmuch as the judge cannot discuss or comment upon the proposed evidence, but must simply decide upon the objections made to it, it seems fair to infer that all objections intended to be relied on must be clearly stated, so that he may act in reference to all, and that a failure to assert any objection would be tantamount to a waiver of all objections not affirmatively presented.” This rule is now well settled by repeated decisions of this court. (Walker v. The State, 9 Texas Ct. App., 200; King v. The State, 13 Texas Ct. App., 277; Davis v. The State, 14 Texas Ct. App., 645.) We will say, however, that in our opinion no valid objection could have been made to the competency of said evidence. (Whart. Cr. Ev., § 777; People v. Gonzales, 35 N. Y., 49; Burrill on Cir. Ev., pp. 259, 260; 1 Best’s Ev., § 201; Com. v. Sturtevant, 117 Mass., 122; Hart v. The State, 15 Texas Ct. App., 202; Meyers v. The State, 14 Texas Ct. App., 35; Walker v. The State, 7 Texas Ct. App., 245.)

II. Defendant’s second bill of exceptions is defective in the same particular as the first. It does not inform us upon what ground or grounds he objected to the alleged incompetent evidence. This evidence, however, also appears to us to be free from any valid objection. Although the defendant was under arrest when he made the statements objected to, still it was proved that he made the same voluntarily, and after having first been cautioned by the officer having him in custody that any statements made b}7- him might be used in evidence against him. (Code Crim. Proc., art. 750; Harris v. The State, 6 Texas Ct. App., 97; Waite v. The State, 13 Texas Ct. App., 169.)

*116III. Several objections are made, in defendant’s motion for a new trial, to the charge of the court, but no exceptions were taken to the charge at the time of the trial. Several special charges were requested by the defendant, and refused by the court. We have closely examined and fully considered the sufficiency and correctness of the court’s charge as given to the jury. It is in the main correct, and embraces all the law applicable to the evidence. It did not submit the law of murder in the second degree, nor did the evidence demand any other instructions than as to murder in the first degree. There are, we think, some immaterial errors in the charge, but they are of a character which manifestly could not have prejudiced the defendant; but, on the other hand, whatever influence they might have had upon the minds of the jury must have been favorable to the defendant. As to the special charges which -were refused, in so far as they were correct and applicable they had been fully embraced in the charge given to the jury.

IY. While the evidence upon which this conviction is founded is circumstantial, it is, to our minds, sufficiently cogent and certain to place the defendant’s guilt of the murder beyond all reasonable doubt, and to exclude every reasonable hypothesis of bis innocence. We find no error in the conviction, and the judgment is affirmed.

Affirmed.

[Opinion delivered April 29, 1885.]