Bailey v. State ( 1925 )

We said in our original opinion that no bill of exceptions was reserved to the overruling of the motion to quash the information. There was no regular bill of exceptions complaining of this matter, but we have concluded that the notation on the motion to quash, made by the trial judge, was sufficient to constitute it a bill of exceptions. Considering the motion, — we observe that the tick eradication law had been amended since Munsey v. State, 194 S.W., Rep. 954, was handed down and it was not necessary at the time of this prosecution to allege that it "was known" to the owner that his cattle had been exposed to favor carrying ticks. The motion to quash was properly overruled.

We considered the exception taken to the main charge of the court because of its omission to submit a certain theory, but we called attention to the fact that by no appropriate bill of exceptions was it made to appear here, that there were facts in evidence calling for a charge based on said theory. One who by exception complains of an omission in the court's charge, must substantiate by some approval of the court below, the proposition that facts were before the court calling for the incorporation in the charge of the omitted theory.

One who presents special charges which are by the trial court simply marked "refused," is in no position to ask any benefit from such refusal. The four special charges appearing in this record were by the trial court marked "refused." There appears nothing to show when said charges were presented to the trial court, whether at the conclusion of the evidence or at some other time; nor that the court's refusal of said charges was not acceptable to appellant. Neither by bill of exceptions nor by notation on any of said charges is the court's action relative thereto brought before us for review. The affirmance was correct.

The motion for rehearing is overruled.

Overruled.