Appellant was convicted in the County Court of Floyd County of aggravated assault, and his punishment fixed at twelve months in the county jail and a fine of $100.
Appellant presents to us for our consideration what purports to be his bill of exceptions No. 5, accompanied by his affidavit to the facts therein stated. An examination of the contents of this document shows that it was presented to the trial court as a bill of exceptions, and that upon same the trial court made a written statement that no objection was made to the argument of the prosecuting attorney therein complained of, when such argument was made to the jury, and further that no exception was taken to said argument, and that the same was not allowed or approved as a bill of exceptions. Accepting the statements of the trial court as being correct, which fact does not appear to be disputed in any part of said purported bill of exceptions, or the affidavits accompanying same, it is clear that there is nothing before us in this connection which we can consider. If the attorney for *Page 544 appellant sat quietly by and permitted argument which he thought objectionable, and lid not raise his voice in opposition thereto, and took no bill of exceptions and asked no charge requesting the jury not to consider same, we would be without power to consider the matter as same is here presented.
The separation of the jury is made the subject of complaint. This being a misdemeanor case, the separation of the jury is provided for by Article 746, Vernon's C.C.P. In the absence of an affirmative showing to the contrary, we must presume that said separation was allowed in accordance with the provisions of said article, and that the proper instructions were given the jury and obeyed by them. We cannot accept here as raising objections to the action of the trial court, ex parte statements as to conditions and surroundings which, from the standpoint of the appelant, might make the separation of the jury objectionable. Such matter should have been made the subject of an objection to such separation at the time and should have been followed up by proof or offered proof of the fact that by reason of such separation some illegal and injurious matter took place from which injury was reasonably certain. An abuse of the discretion of the trial court in this matter would not ordinarily appear from a statement by appellant of the fact that there was feeling against him, and that the jury might have been exposed to hearing conversations between parties interested.
By his bill of exceptions No. 2 appellant complains that he was not allowed to ask a character witness for the defense, on redirect examination, what appellant's conduct had been toward her. There is nothing in the bill or the record which shows that the State upon cross-examination of said witness had asked her anything reflecting upon the relations of appellant toward her or his conduct with her, and in such case we see no reason why appellant should be allowed to go into his personal conduct toward said witness. Likewise, by appellant's bill of exceptions No. 3 he seeks to show by certain witnesses that when present when lewd conversations were being had, appellant took no part in them and had been heard to express his displeasure at same. We know of no rule of law holding such evidence admissible. Nothing appears in the State's cross-examination of appellant's character witnesses which would in anywise call for or justify such testimony.
Appellant's remaining bill of exceptions is directed at what he characterizes as the remarks of the private prosecutor made during the examination of the prosecutrix as a witness. The bill of exceptions sets forth in question and answer form various things that occurred during said examination, there being remarks made by appellant's counsel, and also by State's counsel, which might have been omitted and the proceedings been more orderly. The particular matter complained of is stated in the bill as follows: It appears that following remarks of both counsel, the attorney for appellant said to the court: "We ask the court not to consider any of the remarks of counsel." The private prosecutor said: "The remarks of counsel on either side — I am willing *Page 545 to do that. Let the court instruct the jury not to consider the remarks of counsel on either side." Appellant's counsel then said: "I am talking about his; he can make an objection to my remarks, if I have said anything. I would like to ask a ruling of the court." Thereupon the court said: "The motion will be overruled." Appellant's counsel then stated: "We want a bill of exception to the refusal of the court to instruct the jury not to consider the speech of Mr. Martin." This leaves the matter of appellant's complaint in such an indefinite condition as to bring nothing before this court for review. Appellant first asked the court not to consider any of the remarks of counsel, and his last statement was to ask the court to instruct the jury not to consider the speech of Mr. Martin. The bill of exceptions contains probably a dozen remarks of Mr. Martin, private prosecuting counsel. At which of these this motion of appellant is directed we are unable to ascertain.
It is not necessary to state the evidence at length. Prosecutrix was a woman, being the mother of three children, all of whom were away from home on the day of the occurrence, which is the basis of the prosecution. Appellant came to the house and after remaining for some time about the premises, according to prosecutrix, came into the house and grabbed her around the waist and pulled her close to him, and held her until she jerked loose. Conduct of this character would necessarily be exceedingly humiliating and offensive to a good woman, and if the jury believed the testimony we think they were justified in the punishment inflicted.
Finding no error in the record the judgment of the trial court will be affirmed.
Affirmed.