Drawhorn v. State

LATTIMORE, Judge. In this case appellant was charged in the District Court of Henderson County with the offense of assault to murder and upon trial was convicted and his punishment assessed at confinement in the penitentiary for seven years. There was no objection in the court below to the indictment or to *601 anything transpiring upon the trial, as appears from the record, except the complaint made of certain statements attributed to the district attorney in his closing remarks to the jury. This objection is presented to this court by appellant’s bill of exceptions No. 1. An examination of this bill discloses that the court made the following order upon the same: “This bill of acceptance is refused, because it in nowise presents the matters as I recollect that they occurred and being so different and so much at variance with the court’s recollection of the facts that I have made out and filed what I conceive to be a true and correct bill of acceptance correctly presenting just what did occur and nothing more.” In view of this order we have carefully examined the record but find, no other bill of exceptions than this one and under the ruling heretofore made by this court and under the statute, it being the duty of the trial court to file and present a correct bill of exceptions, in the absence of same the refused bill will be considered as though approved and filed.. Exon v. State, 33 Texas Crim. Rep., 461; Butler v. State, 64 Texas Crim. Rep., 482, 142 S. W. Rep., 904. We have therefore considered this entire bill of exceptions as though the same had been approved, and observe that it consists of a statement setting forth remarks attributed to the district attorney in his closing argument as to the failure of appellant to put witnesses on the stand to prove his general reputation; but we also observe that said bill sets out, as a part thereof, a lengthy statement of the district attorney in which he denies having made the statements set out in said bill by appellant as having been made by him, and also states fully what was said by him, and under such statement-no reversible error is shown. Both these statements appearing in this bill and we being compelled to take same as it appears in the record, we are unable to determine which one of said statements is correct, and therefore can not say that any error was committed as to the matter set forth. This same matter is set up by appellant in his motion for new trial and upon a statutory traverse of this ground of the motion by the district attorney the court, after hearing evidence thereon, overruled said motion. The evidence heard with relation thereto is not preserved or presented by any bill of exceptions and we are unable to see any error in the court’s action. Appellant further complains because the evidence shows guilt of no-higher grade than that of aggravated assault. This matter was fully submitted to the jury by the trial court and there is ample evidence in the record to sustain their finding. Complaint is made also of the fact that a certain witness was permitted to state w'hat the appellant told him while under arrest, but as this matter is presented only in the motion for new trial and no -bill of exceptions was preserved to the court’s action we can not consider same. The only remaining, ground of objection was that the appellant’s gun *602 was “lame” and would not shoot at the time of the alleged assault. This contention is not home out by the record as appellant himself testified that he had been hunting with the gun in the same condition that it was when it was snapped by him in the face of the arresting officer. He also states that he had put two shells in the gun the day before of the same kind and that with one of them he killed a duck and was just in the act of starting hunting with this gun at the time this difficulty occurred. Finding no error in the record the judgment of the lower court is affirmed. Affirmed.