In his motion for rehearing appellant insists that we erred in overruling his sixth assignment of error. What is denominated in the brief of appellant as the sixth assignment of error consists of a statement that the trial court constantly excluded all testimony as to illicit relations between Maria Ramhack and Manuel Sanchez, both of whom were killed by appellant on the day of the homicide for which he was on trial. Said assignment groups bills of exceptions four, six and twenty-six as containing the rulings so objected to. An examination of said bill of exceptions number four, which *Page 388 appears to have been taken to the court's refusal to allow a woman named Baca to answer why she did not visit the home of Maria Ramhack. What her answer would have been to said questions is not set out in the bill of exceptions, and the ground of exception as stated is that appellant believed that had said question and others along the same line been permitted and answered, he could have shown that dead man and woman were lovers. We have stated enough of said bill to make it manifest that the same was not sufficient to show error on the part of the trial court. A bill of exceptions to the refusal to permit an answer must show what the answer would have been, and a ground of exception that the appellant could have shown by other questions along the same line, etc., is too indefinite.
In the bill of exceptions number 6 it appears that the court refused to allow a witness to answer a question as to whether deceased, Sanchez, stayed over at the house of the dead woman a good deal. In urging the admissibility of this question upon the trial court, appellant expressly stated that he was not asking as to the relations of the man and woman.
Examining the twenty-sixth bill of exceptions we find it contains several pages of questions and answers, propounded both by the State and appellant; it being stated at the threshold of said bill that the jury had been retired before this examination was had. It is not shown by said bill that this testimony was offered in the presence of the jury, and many of the questions and their answers as set out in the record of said proceedings would have been objectionable if made in the presence of the jury. It is stated in the concluding portion of the bill that all evidence of the defendant as to the relationship of the said parties was excluded, and the statement of the exception is as follows: "The defendant then and there excepted to the ruling of the court and tendered this his bill of exceptions, etc." In his approval of this bill the trial court stated that when the jury returned and appellant testified, he was permitted to testify to the relations between said deceased parties, and as to his belief as to said relations, and the effect of such relations and his belief concerning same on his mind and actions. The bill was accepted and filed as so qualified and shows no error. We have reviewed this matter at some length inasmuch as it has been much stressed in said motion, and the punishment inflicted by the jury was the extreme penalty of the law. Appellant testified in detail as to all the words and actions of the deceased, Maria Ramhack, just prior to the firing of the fatal shot by him, and if the jury had credited his story in any way, their verdict would have likely been different. We have again carefully examined his evidence and are unable to find in same anything which would indicate that the jury were not justified in believing it the fabrication of one who found himself enmeshed in the consequences of a grave crime.
We do not think we erred in any other matter set forth in said motion. The rules of practice are the same in a capital case as in any *Page 389 other felony, and the accused should take his bill of exceptions to the overruling of his application for continuance, and should as substantially present his defense in a capital case as in any other.
We have given to each ground of said motion careful consideration, but are unable to conclude that our former opinion was erroneous, and said motion will be overruled.
Overruled.