In this case and those of Webb v. State, No. 11503 and Gerth v. State, No. 11504, opinions this day handed down, the appellants have filed identical motions for rehearing. We have been at some pains to carefully review the entire records in the light of the motions and of the confused condition of the records resulting from failure on the part of the trial court to approve the bills of exception presented by the appellant in each instance, and the filing in lieu thereof substitute bills prepared by the trial court, both the original and substitute appearing in the record. We observe in each record eleven bills of exception which were filed by the clerk of the trial court and are copied in each of these transcripts, none of which have been approved by the trial court and none of which should have encumbered these records.
Appellant again insists that his motion for certiorari should have been granted and that refusal thereof was error for which the case should have been reversed. The object of the writ referred to was to compel the clerk of the trial court to correct the transcript so as that same would show that bill of exceptions No. 15, was in fact approved by the trial court. Our original opinion herein manifests *Page 272 that we considered said bill and held that it showed no error. In such case it would seem idle to contend that a rehearing should be granted and a reversal ordered for failure to grant a certiorari, for granting of same would have been of no real benefit to the accused. If the writ had been granted it could only have brought up a transcript so corrected as to show that bill of exceptions No. 15 was approved. This would only have entitled appellant to have had said bill considered. It was considered. Of what avail then the writ?
However, appellant also urges that in passing upon said bill we erred in holding inadmissible the testimony therein set out which the averments show would have been given by Mr. La Place. Further examination of the bill and record confirms us in our conclusion. Appellant offered to prove by La Place what a doorkeeper of a room in the Adolphus hotel told him. The doorkeeper was not a witness nor in any way connected with this case. Nor is there anything in the record making admissible his statement. Again after setting out that La Place heard one Estes tell prosecuting witness Eastus in said room certain things, it is set out that La Place would further testify that "It would be agreed upon as the policy of the Dallas News to fire Horace Scott * * * and that by discharging Scott a strike would result, and that in order to break the strike it would be necessary to incite acts of violence on the part of the strikers," etc. There is neither coherence nor relevance in the quoted part of the rejected testimony of La Place. The trial court ruled on the matter as presented to him, and we pass on it as presented to us by the bill, and upon consideration thereof uphold the trial court in his rejection of said testimony.
It is further urged that we should have held erroneous the refusal of a special charge set out in bill of exceptions No. 18. We find that in the main charge the court told the jury they could convict of aggravated assault only upon their belief beyond a reasonable doubt that the assault was committed with premeditated design, — that is a design preconceived prior to the time of the assault. A special charge asked by appellant was given which told the jury that if they believed appellant with others sought Eastus for the purpose of talking with him, etc., and that appellant did not have in his mind prior to the assault any purpose or design of assaulting Eastus, * * * and that on a sudden impulse arising at the time appellant assaulted Eastus, or if they had a reasonable doubt concerning this, they should acquit of aggravated assault. This renders harmless the refusal of a similar charge set out in bill of exceptions No. 18. We find no error in the matters set out in substitute bill of exceptions *Page 273 No. 17. This assault was in 1927, and was made, if at all, upon a non-union mailer working for the Dallas News, by appellant and two other union mailers who were on a strike. Bill No. 17 sets out the court's refusal to admit in evidence a three-year written contract between the Dallas News and the Mailers' Union dated 1919 and ending February 18, 1922. The reason suggested by appellant for offering this document was that Circulation Manager Estes of the Dallas News had testified for the State that there was no existing contract between the News and the Mailers' Union of which organization appellant and his codefendants were members. The court sustained the objection to the contract on the ground that the testimony was immaterial and irrelevant. We confess ourselves unable to see how such proof could have shed light on the issue as to whether such assault was with premeditation; and it certainly could have had no bearing on whether such assault was in self-defense. As a matter of ordinary reasoning it would appear that appellant and his codefendants would have greater cause for resentment at being discharged when there was such contract than otherwise.
It is always cause for regret when there is confusion and contention over bills of exception and other matters pertaining to the preservation of complaints of procedure. We have tried patiently and at some consumption of time to examine these rather voluminous records in the light of appellant's motion, but find ourselves constrained to adhere to the conclusions announced in the original opinion.
The motion for rehearing is overruled.
Overruled.