Following the granting of the State's motion and the order affirming this case appellant has presented an able argument in support of a motion for rehearing in his behalf which we have given long and serious consideration. The first contention is that we erred in holding that he had taken no exception to that part of the court's charge upon which our original opinion reversing this case, was based. Appellant asserts that his bill of exceptions No. 4 evidences the exception to that part of the charge upon which he relies. We regret we can not agree with him. Said bill shows that when the court's charge was originally submitted to appellant he duly presented his written exceptions to same, which appear in the record. It also appears that thereupon the court amended and changed his charge as first submitted and inserted therein the charge on self-defense which is the subject of the complaint upheld in our original opinion. It also appears that when said charge as so changed was again submitted to counsel for appellant they urged the same objections and exceptions to it which had been theretofore filed, and it is stated in the bill that there was the additional exception that the court failed to apply the law of reasonable doubt as part of his charge on self-defense but the bill does not state that such additional exception was in writing. We have searched the record to see if there appears such additional written objection or exception to the charge but have failed to find it. A bill of exceptions in form usual for such bills, reciting that the charge was excepted to for various reasons, would not be sufficient to bring such alleged exceptions before us unless same appear to have been made "in writing distinctly specifying each ground of objection," as is provided in Article 735, C.C.P. An exception to a charge of the court taken orally, even though preserved by bill of exceptions approved by the trial court, does not comply with the law as written in the statute. Failing to find in the record any written exception to the charge of the court in the regard under discussion, we must adhere to our opinion already expressed that there was no such exception taken to the charge.
Appellant also complains of the overruling of his motion to quash the return on the special venire. One hundred and twenty-five men were ordered and fifty-four were summoned. From appellant's motion *Page 487 and bill of exceptions it appears as his ground of objection that as to thirty-three veniremen no return was made and as to the remaining thirty-eight the return was insufficient. When the motion to quash was presented the case was postponed one day and leave given the sheriff to amend his return. Upon the day following the appellant filed a supplemental motion to quash, asserting that the sheriff had filed a paper purporting to be an amended return as to the thirty-three jurors upon whom no return had been made originally. This amended return nowhere appears in the record, nor does the supplemental motion to quash. The bill of exceptions taken to the refusal of this motion and supplemental motion does not show that said supplemental motion was sworn to. We are not prepared to hold that the amended return as to the thirty-three veniremen, is not sufficient or that it shows but conclusions. Powers v. State, 23 Texas Crim. App., 61; Parker v. State, 33 Tex.Crim. Rep.; Colon v. State,48 Tex. Crim. 343. It seems to be generally held that the fact that the entire number of jurors ordered is not summoned, would not be ground for quashing the venire. Hall v. State, 28 Texas Crim. App., 146; Taylor v. State, 14 Texas Crim. App., 340. We do not think any error was committed.
We do not think any error was committed in allowing testimony as to the blood found on the car or around the scene of the shooting and the statement that at the place where the body of deceased was found there was a little blood.
As we understand the facts in this case appellant's contention was that he was shot by deceased in the head and then took from her the pistol used by her, and shot her with it. This being true we fail to see the applicability of a special charge to the effect that if deceased was armed with a pistol at the time she was killed, etc., the law presumes that deceased intended to murder the defendant or inflict upon him serious bodily injury.
The bill of exceptions complaining that a witness stated that the body of deceased had a wedding ring on its finger, states only the grounds of the objections as made by appellant's attorney at the time, and in this form presents nothing which we can consider or hold tenable as supporting the said grounds of objection. The argument of appellant in his brief against the admission of this evidence proceeds on the assumption that we must consider the objections as true and as stating the facts. Under the uniform holdings of this court we can not do this, nor can we appraise the weight of the objections stated in the bill of exceptions in the absence of the facts which would appear to support or justify the objections made.
Regretting our inability to agree with any of the contentions made by appellant in his motion, same will be overruled.
Overruled. *Page 488
ORDER ON REQUEST TO FILE SECOND MOTION FOR REHEARING. February 6, 1924.