Walker v. State , 111 Tex. Crim. 285 ( 1928 )

The offense is manslaughter; the punishment confinement in the penitentiary for three years.

Testifying in his own behalf appellant admitted that he killed deceased, but declared that he believed at the time that deceased was preparing to strike him with an automobile crank. It is unnecessary to detail the testimony offered by the state. The evidence is sufficient to support the conviction.

Bill of exception Number 2 complains of the action of the court in permitting a witness for the state to testify that in his opinion human tracks found on the ground near the scene of the homicide were made by the shoes of appellant, the objection being that a proper predicate for the expression of the opinion had not been laid. That the conviction in any degree depended on the identity of tracks is not shown by the bill. The bill is wholly devoid of any of the surrounding circumstances or facts attendant upon or precedent to the matter complained of as error. A bill of exception within itself must state sufficient facts to enable us to determine whether error was committed in the matter complained of. Jones v. State, 273 S.W. 258. The bill fails to manifest error.

As shown by bill of exception Number 3, the state's witness Pounds was permitted to testify that he found a key on the outside of the door of deceased's room which did not fit the lock. It is stated as a ground of objection that such testimony was not in rebuttal of anything offered by appellant and was an attempt by the state to impeach its own witness. The bill contains no facts in verification of the objections. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code, Sec. 209; Buchanan v. State, 298 S.W. 569.

Bills of exception Numbers 4 and 5 are also insufficient to manifest error in that the grounds of objection contained therein are not verified by facts.

The doctor who examined deceased testified, after describing the wounds, that in his opinion deceased could not have walked to his room after receiving the wounds. Appellant's objection, as shown in bill of exception Number 6, that a sufficient predicate for the expression of such opinion had not been laid was properly overruled.

Buster Walker, a witness for the state, testified that he witnessed the homicide. On cross-examination, Walker stated that deceased made a motion to hit appellant with an automobile crank before appellant struck deceased. Appellant requested the court to charge the jury that the state having placed the witness Walker on the stand was bound by his exculpatory statements. The rule contended for by appellant seems to be confined to cases in which the state takes the initiative and introduces a confession or admission of the accused made out of the court. No such state of facts appears here, and the court properly refused to give the charge. Musselman v. State,274 S.W. 628.

Finding no error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.