Clements v. State

In the motion the conclusion that error is not revealed by bill of exception No. 3 is challenged. It is claimed that it is revealed by the bill that the appellant was denied the privilege of stating to the jury the facts upon which he has based his right of self-defense. That part of the bill which presents the question is quoted as follows:

"That while the defendant was a witness upon the witness stand in his own behalf, through his counsel, he was asked to explain the action of the prosecuting witness, and immediately before he, the defendant, shot, to which the State's counsel objected on the ground that it was leading, and if permitted by the Court, the defendant would have testified that just before he shot the prosecuting witness, the prosecuting witness knocked his jumper back and was in a position as though he was going to get his gun. When he did that, he, the defendant, shot him in the arm to keep him from getting his gun."

From the statement of facts it appears that the appellant gave testimony which went before the jury in exact accord with that which he claims in the bill of exceptions was excluded. An excerpt from his testimony is quoted in the original opinion in which the following appears:

"He knocked his jumper back and was in position like he was going to get his gun, and when he did that I shot him in the arm to keep him from getting his gun."

In his motion the appellant relies upon the principle that where there is a conflict between the statement of facts and a bill of exception, the bill prevails, citing Elkins v. State, 101 Tex.Crim. Rep., 276 S.W. 291; Bank v. State,95 Tex. Crim. 384, 254 S.W. 962; Berry v. State,95 Tex. Crim. 660, 255 S.W. 739; Ables v. State, 106 Tex. Crim. 169,291 S.W. 554.

In Martin's case, 107 Tex.Crim. Rep. (see page 163),295 S.W. 1098, 1104, the question was discussed as follows: To appraise a bill of exception, whether it relates to excluded testimony, or to determine whether from other sources or from the same witness, testimony which in substance is the same as that, the exclusion of which is complained of went into the record, are matters which this court has always held it had a right to go to the statement of facts to determine, and which right, of necessity, it must have. See also Plummer v. State, 86 Tex.Crim. Rep., 218 S.W. 499.

In the present case, it is shown by the bill that the reception of the testimony was opposed upon the ground that thequestion was leading. The court approved the bill as written. The verbiage of the question is not embraced in the bill butits substance alone. It must be assumed as the matter is presented that the question was leading, and that for that reason the ruling of the court excluding the testimony was correct at the time the ruling was made. The record, that is, the agreed statement of facts approved by the trial judge, showing that such testimony was given to the jury, it is not competent for this court to assume that it was improperly received. It would be more consistent with the record to assume that after the ruling reflected by the bill the question was changed and in response thereto the testimony was admitted.

As to the other matters presented in the motion for rehearing it is thought that no discussion further than that contained in the original opinion is required.

The motion is overruled.

Overruled.