Nugent v. State , 101 Tex. Crim. 86 ( 1925 )

Appellant insists that we were wrong in holding him without diligence in the matter of his application for continuance. In addition to what we said before, we observe that the term of the court below at which this indictment was returned, convened August 20, 1923, and the indictment was filed August 23rd. Court remained in session more than six weeks thereafter and no subpoenas were issued, as far as this record indicates, until the succeeding term, which was in February 1924. This trial term convened on the 4th of February and no subpœnas were issued until the 21st of said month. We have again examined the application and are confirmed in our conclusion that same shows no diligence.

That a statement was made wholly or in part in response to a question, would not prevent it being res gestæ. Johnson v. State, 46 Tex.Crim. Rep.; Long v. State,48 Tex. Crim. 175; Hobbs v. State, 55 Tex.Crim. Rep.. The question asked deceased, which is discussed in Lockhart v. State, 111 S.W. Rep. 1025, cited by appellant, is stated in the opinion in that case to have been leading, and it was also stated that in the answer thereto matters were introduced not germane.

This court knows nothing of any case before it, save what appears in the record. A bill of exceptions setting forth that when the State had introduced its testimony, the attorney for the defense asked for time to talk to his witnesses, and that the court replied that he had had two days to talk to them and the trial must proceed, gives us nothing to predicate error in the refusal of such time. Nor does it help us to state in the bill that the trial began on March 3rd and the State rested its case the afternoon of the 4th, and that during that time a venire of seventy-five men had been exhausted and thirty additional talesmen had been summoned, the jury completed, and the State's testimony introduced. Ordinarily the accused does not wait until the trial begins to talk to his witnesses and find out what their testimony will be. In this case the defensive testimony covers twenty pages of the statement of facts, fifteen of which contain the testimony of appellant and his brother. All of the other witnesses but one were character witnesses. This wholly fails to show any error in the refusal of the trial court to stop the proceedings in order to give appellant time to talk to his witnesses.

Appellant presents his case on assignments of error which are not called for in practice before this court, but we made no point thereon in the original opinion. Nor do we lay down any strict rules regarding bills of exception, which are looked to as the method of presenting errors in practice before this court. All of our decisions, however, agree that the rules laid down by the civil courts control. The plain well understood rule is that every bill of exceptions must show within itself that which is asserted as error, and also why the thing complained of is error. If the complaint is of the rejection of testimony, the bill should show that the purpose for which the testimony was desired, was stated. It is also laid down by many authorities that the objection made thereto by the State, should appear in the bill. It is also well understood that a bill which sets out evidence, a part of which is admissible and other not, presents no error where a blanket objection is made. Nor should a bill set out different statements of different people made at different times and places and to which distinct objections might have been made. We held appellant's bill No. 5 originally to be not in such condition as that we could consider it, and we see no reason to change our conclusion.

The motion for rehearing is overruled.

Overruled.