We do not care to again review bill of exception No. 4. It had our most careful attention upon consideration of the State's motion for rehearing. In appellant's motion for rehearing he asks that we again give consideration to bills of exception Nos. 2 and 3. In appellant's reply to the State's motion for rehearing, which reply was filed on March 29, 1930, there is an admission that bill of exception No. 2 shows an attempt to impeach LaBleu without any predicate being laid. This, we take it, eliminates said bill.
Bill of exception No. 3 first contains the indictment against appellant. We fail to see the necessity for this. The next two pages contain the State's reproduced testimony of LaBleu, who had died since testifying on the former trial. After his evidence was read, appellant's attorney said: "In connection with the testimony of Mr. J. B. LaBleu just read I want to state that I have some impeaching witnesses who are not *Page 510 here. When it comes our turn we want to offer some testimony to impeach him." To which the court remarked: "We will pass on that when we get to it." There is then set out in the bill sixteen pages of testimony, some of which was offered by the State and some by appellant. We have been unable to see the necessity of thus cumbering the bill. Finally the bill does recite that appellant placed on the stand the witness Mouser; that the jury was withdrawn at the request of the State, and, in the absence of the jury Mouser testified about a conversation claimed to have occurred between him and LaBleu, and between LaBleu and another party, and also testified that LaBleu's general reputation for truth and veracity was bad. The conversations that Mouser testified about occurred subsequently to the other trials of the case. The testimony just mentioned given by Mouser was objected to by the State on the ground that they could not see how it could impeach the dead man, which was LaBleu. If the court ever made any ruling upon the objection interposed by the State the bill fails to show it. It does recite that appellant excepted to the ruling of the court, and the bill concludes with a certificate of the judge that all the testimony of Mouser was given in the absence of the jury. It is nowhere stated in the bill that evidence was ever offered in the presence of the jury, either to the effect that LaBleu's general reputation for truth and veracity was bad, or that Mouser's testimony which would have tended to impeach LaBleu upon the question of the identity of appellant was ever offered in the presence of the jury. The bill fails to show that the court ever ruled upon the State's objection at all, or intimated in any way that he would not permit the evidence to go before the jury. In this state of the record no error is disclosed by this bill of exception.
Appellant's motion for rehearing is overruled.
Overruled.