Glascoe v. State

LATTIMORE, Judge. In this case appellant was convicted in the District Court of Hunt County for the offense of murder and his punishment fixed at twelve years confinement in the penitentiary. An examination of the record discloses but four bills of exception which will be noticed by us in their regular order. The first bill of exceptions complains of the trial court’s action in declining to grant appellant a new trial because of the misconduct of the jury. Touching this matter, the court heard evidence for and against the contention of appellant, and after hearing same overruled this ground of appellant’s motion for new trial. The matter which is the basis of this complaint is not presented to us in such way as we are able to say whether the court’s action was correct or not, as it is now the well settled law of this State by decisions of this court, that in order to present such matter of complaint the evidence heard by the court must be brought here for consideration by bill of exceptions containing the facts and evidence which must be filed during the term of the court. An examination of the record discloses that the term of court at which this trial was had adjourned on December 1, 1917, and the bill of exceptions containing the evidence and facts heard by the court in support of this ground of the motion for new trial, was not filed until February 25, 1918, and therefore such facts cannot be considered by us, and as stated, we are unable to determine whether the court correctly decided said isssue or not. The appellant’s second bill of exceptions was taken to the court’s action in overruling his application for a continuance. A continuance was sought by the appellant because of the absence of the witnesses Brewer and Wheeler. The former was brought into court before the trial was concluded and tendered to the appellant as a witness by the State; and prior to the conclusion of the trial the State in open court admitted the truth of the matter which appellant set up in his application as to what he expected to prove by the witness Wheeler, and said matters were read to the jury and admitted by the State to be true. In this state of the record we see no verror in the court’s action in overruling the application for a continuance. *236 Bill of exceptions No. 3 was taken to the action of the court in permitting the argument of the private prosecuting counsel for the State made in his closing address to the jury. As stated by appellant in the bill the argument was very objectionable, but in the court’s approval and explanation an entirely different statement is set forth of what was in fact said by the State’s attorney in his argument, and as the same appears in the approval of the court, the contention of the appellant is wholly negatived and the argument was in no wise erroneous. There is no further controversy in the record over the matter and no bill of exceptions was taken by the appellant to the bill as approved and explained by the trial court. Accepting the court’s statement ;n said approval as correct, there is no error shown in said bill of exceptions. The remaining bill of exceptions in the record is to the court’s refusal to grant appellant’s motion for new trial generally. There is only one ground in said motion not covered by the objections already discussed herein, and that complains of the court’s action in refusing to grant a new trial because of the alleged error of the court in refusing to permit appellant to re-examine the witness Patterson as to certain matters about which said witness had been interrogated upon cross-examination by the State. There is no separate and independent bill of exceptions in the record showing the facts surrounding this action of the court, and as presented we- are unable to say if error was committed or' not. When' said witness Patterson testified to the reputation of appellant upon the point of his being a peaceable law-abiding citizen or otherwise, it became permissible for the State to ask said witness if he had not heard of certain specific matters affecting said reputation, hut such examination should not have been extended to the particulars of such specific instances, and if appellant sat quietly, and without objection permitted the particulars of such specific instances to be inquired into he may not attempt upon re-direct examination, over objection, to interrogate said witness further as to such objectionable particulars. The well recognized rule is that when one silently permits objectionable matters to be introduced against him, he may not be heard to complain because he is not also permitted to violate the rules of evidence by further investigation of such objectionable matters. There being no errors shown by the record in this case the judgment of the lower court is affirmed. Affirmed.