Lilley v. State

Appellant insists that in refusing to sustain Bill of Exceptions No. 2, this court was in error. From the bill we take the following:

"When the State's witness, Monroe Brackin, was on the stand he was interrogated about certain statements made by the defendant to the said Monroe Brackin on the day of the homicide; and it had been developed by the testimony of the said Monroe Brackin that he was at that time a Justice of the Peace of Hardin County and the defendant had gone to him to give himself up and told him that he, defendant, had kill Joe Gray, and the said Monroe Brackin was permitted over the objection of the defendant to testify to the jury as follows:"

In qualifying the bill, the court said that the testimony was res gestae and was a voluntary statement made while the appellant was under arrest. The bill was accepted and filed by the appellant without availing himself of the privilege of objecting to it. See Exon v. State, 33 Tex.Crim. Rep.; Thomas v. State, 83 Tex.Crim. Rep.. This signifies his adoption of the bill as qualified. Goss v. State,57 Tex. Crim. 557, and other authorities collated in Vernon's Texas Crim. Stat., Vol. 2, p. 556, note 35; also Waters v. State, 81 Tex.Crim. Rep.; Fults v. State, 83 Tex. Crim. 602; Wilson v. State, 87 Tex.Crim. Rep.; Porea v. State, 227 S.W. Rep. 305. Appellant having accepted and filed the bill and failed to challenge the correctness of the court's explanation of the bill at that time, he is not in a position to assail it on appeal. If, however, the qualification were disregarded, we find ourselves confronted with the proposition that the bill fails to show that the testimony adduced was not res gestae. The declaration of the appellant is of a nature that might be res gestae and therefore, admissible, although the circumstances were such as to show that the accused was in custody at the time. See Calloway v. State, 92 Tex. Crim. 506. Ignoring the qualification of the bill, it leaves open the question as to whether the evidence adduced was res gestae. The action of the court in receiving the testimony on appeal is presumed correct unless by the bill it is shown to be erroneous. Moore v. State, 7 Texas Crim. App. 14; Douglas v. State, 58 Tex.Crim. Rep.. The testimony set out in the bill being such as might have been properly received as res gestae and the bill failing to show that it was not res gestae, the presumption that the court correctly ruled prevails. Ford v. State, 40 Tex.Crim. Rep.; Brown v. State,83 Tex. Crim. 451; Branch's Ann. Texas P. C., p. 134, sec. 209. See also Cavanar v. State, 269 S.W. Rep. 1053.

In Bill No. 1 it appears that counsel for the State, while cross-examining the appellant, said:

"Notwithstanding that you thought he had been armed, and that you were afraid, you went down there in the bushes where he was armed with a gun to see about the trouble?"

The bill does not show that this was not warranted by the evidence. The qualification contains this quotation from the statement of facts:

"There was a right smart clump of bushes there, thick between where the house was and where Mr. Gray was working."

As qualified, the bill, in our judgment, shows no error. We will add that in our opinion, tested by the statement of facts, the question was not so foreign to the record nor so harmful as to warrant a reversal of the judgment.

Without discussing them, we have re-examined the bills and the record in the light of the motion for rehearing, and are of the opinion that the proper disposition was made of the appeal upon the original hearing.

The motion is overruled.

Overruled.