Sims v. State , 156 Tex. Crim. 608 ( 1951 )

ON state’s motion for rehearing

GRAVES, Presiding Judge.

In the state’s motion for rehearing, it is contended that each separate and distinct objection to the court’s charge should have been embodied in a separate bill of exception instead of including the objections and exceptions to the different portions of the charge in a single bill of exception.

The statute, Art. 658, C.C.P., merely provides that in each felony case “the Judge shall, before the argument begins, deliver to the Jury, except in pleas of guilty where a Jury has been waived, a written charge, distinctly setting forth the law applicable to the case. * * * Before said charge is read to the Jury, the defendant or his Counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.”

Article 660, C.C.P., provides in substance that after the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto and in the same manner as is provided in Article 658, supra.

It has always been the custom in this court, and still is, to allow a bill of exception usually denominated as objections and exceptions to the court’s charge all to be included in one instrument, and we have never demanded that each separate objection to such charge shall be incorporated in a separate bill of exception.

It is insisted by the state that the incorporation of different objections in the same bill of exception constitutes the same to be multifarious, and we are cited to the case of Porter v. State, 80 Tex. Cr. R. 240, 190 S.W. 159, as authority for such proposition.

We have examined the citation offered us but do not think the same to be in point herein. In that instance, the court, after receiving certain objections to his charge, attempted to change the same in a manner not satisfactory to the attorney for the accused. This court held in that case that if the corrected charge was subject to certain objections afterwards offered by the attorney for the accused, he should have filed a second bill of exception to the corrected charge, and to that extent only is the holding in the Porter case, supra.

We here refer to the case of Clark v. State, 86 Tex.Cr.R. 585, 218 S.W. 366, from which we quote:

“The Assistant Attorney General concedes that, if the question was properly raised, the error is fatal to the conviction. We find in the record the various exceptions of the appellant to the court’s charge, certified as a bill of exceptions, showing the presentation and action upon them in due time. These exceptions are in separate paragraphs; each paragraph being in itself specific, and fully complying with the statute. We think the fact that they are all contained in one paper, the subdivisions being segregated and numbered, each sufficient in itself to advise the trial court and this court of the complaint directed at the charge and the refusal of the special charge, does not vitiate the exception, nor warrant this court in ignoring it. See Bank v. Ricketts, 177 S.W. 531.”

Where the case of Furr v. State, 194 S.W. 395, seems to hold to the contrary, the same is overruled to that extent.

Ever since the passage of Article 660 in 1913, it has been the universal custom, so far as the records show in this court, to embody all the objections to the court’s charges in what is called “objections and exceptions thereto,” and though the objections may be many, nevertheless, they relate to but one general proposition, and that is, the court’s charge, and there can be offered therein any objection that seems pertinent thereto by the attorney for the accused.

This being the only question offered by the state in this matter, the motion for rehearing will be overruled.