Gibson v. State ( 1920 )

Appellant presents a motion for rehearing. Among other things, attention is called to an inaccurate statement made by us in our opinion, wherein we said, speaking of objections made in the lower court to the charge, "objections must have been made in writing and presented to the trial court before the verdict." We should not have used the words "before the verdict," but should have said such objections must have been presented before said charge was read to the jury.

Referring to our ruling upon his objections to the charge of the court, in which we said we could not consider the same because not properly verified, appellant insists that the caption of the paper purporting to set forth such objections is as follows: "Now comes the defendant, and before the court has read and delivered his charge to the jury, and makes the following objections to the court's charge," and the contention is made that this is sufficient, and also that the trial court endorsed on said paper "Refused" by mistake. In the Salter case,78 Tex. Crim. 325, 180 S.W. Rep., 691, it was held in an opinion written by the Presiding Judge of this Court that where exceptions are taken to the charge before being read to the jury, same must be verified in some way so as to inform this court that such procedure actually occurred. The fact that the caption of the paper purporting to contain such exceptions recites that it contains the objections presented before the harge was read, is not a verification by the trial court of the fact of such presentation, and unless there be some such verification apparent on the paper, or else we be so informed by a bill of exceptions approved as the law directs, we would be compelled to hold that we could not consider the matter urged as objections to the charge. In the instant case there is no such bill of exceptions, and as the paper purporting to contain the exceptions not only has not the approval of the trial court, but is by him marked "refused," we could not consider same.

The statement of the grounds of his exceptions to matters contained in appellant's second bill of exceptions, is quoted in full in the opinion. As there stated, said bill contains fifteen pages of questions, answers, etc., and no ground of exception appears in the quoted part of said bill, nor is there any reference to any ground of exception as being anywhere in said bill. It is simply stated that to the action of the court in overruling the objections above set out the defendant excepts. We are compelled to hold that such bill is not sufficient for consideration. To hold otherwise could be easily construed into authority for reserving a bill of exception at the end of each witness' testimony, or at the conclusion of a trial, and asking this court to look through the stenographic report of the case at the end of which might appear a statement of the general exception taken by the accused to the errors committed during the trial. This court has so often laid down the requisites for bills of exception that it would not seem necessary to constantly discuss the same. See Vernon's C.C.P., art 744, Sec. 29; Secs. 208 to 211 Branch's Ann. P.C.

As to appellant's bill of exceptions No. 1, we discussed same at length in our opinion, and now observe that there appears but one objection set out in the stenographic report of the proceedings therein appearing. Said objection was made at a time when a question had been asked and answered. No request appears in said objection for any instruction to the jury not to consider the answer just made. The question having been answered, there was nothing before the court. After the said objection was stated at length, the trial court stated that he would overrule same, and the State proceeded to ask other questions which were answered without objection. Appellant then again cross-examined the witness, all of which proceeding is set out in the bill, which concludes with the statement that the action of the court in overruling the objections was excepted to. We are unable to find any error urged in the motion which we can uphold.

The motion for rehearing is overruled.

Overruled.