W. 1064, and Espinoza v. State, 73 Tex. Cr. [4. Homicide 309 (3)-Charge on manslaughR. 237, 165 S. W. 208, as being opposed to ter not required under evidence.

5. Homicide 339-Exclusion of statement of deceased, that he had grudge against name borne by accused, not prejudicial.

timony, that deceased had told witness that In prosecution for murder, exclusion of teshe had grudge against name borne by accused, held not prejudicial, where same witness testified deceased had told him he was going to get a gun and kill accused, especially in absence of any testimony showing effort of deceased to execute threats made by him.

the announcement in our original opinion In prosecution for murder, evidence held not that his codefendant Biano,,who had been to require charge on manslaughter. convicted for complicity in the same offense. and given a suspended sentence, was not a competent witness in his behalf. We fear appellant has not apprehended the distinction between the cases cited in our opinion and those just referred to. We did not uphold the rejection of Biano's testimony on the ground that one under a suspended sentence is thereby rendered incompetent as a witness generally. This question was not before us. In Espinoza v. State, supra, the testimony of a witness, who had been convicted and given a pended sentence, was held properly admitted, when offered for the state. Had the witness been offered for the accused, under circumstances similar to those in this case, his testimony should have been rejected. The ruling is in response to article 791, C. C. P., which forbids those indicted for the same offense to be used as witnesses for each other. One, who has been convicted and given a suspended sentence, still has the indictment pending against him, until after the expiration of the sentence, when upon proper showing a new trial is granted and the case dismissed. We have ex

sus

amined each of the other contentions made by appellant, and believe them without merit.

The motion for rehearing is overruled.

LILLEY v. STATE. (No. 8727.)

On Motion for Rehearing. 6. Criminal law ||||(3) Acceptance of qualified bil held to waive objections to qualification.

Where testimony that accused had said he killed deceased, shortly after killing, was excepted to, on grounds that accused was under bill that statement was res gestæ and volunarrest at time, acceptance of qualifications to tary, held binding on accused, in absence of any objection to qualification.

7. Criminal law 1144(12)-Action of court in receiving testimony presumed correct, unless otherwise shown.

Action of court in receiving testimony is presumed correct on appeal, unless by bill of exceptions it is shown erroneous.

8. Criminal law 1144(12)-Bill failing to show that confession of accused, shortly after killing, was not part of res gestæ, did not show error, in view of presumption.

Bill of exceptions based on admission of statement of accused, shortly after killing, that he killed deceased, objected to as having been made after arrest, held not to show error, in

(Court of Criminal Appeals of Texas. May 6, absence of showing that statement was not part

1925. Rehearing Denied June 3, 1925.)

1. Criminal law 841-Length of time to
prepare exceptions to charge discretionary.
Length of time allowed by court for counsel
to prepare exceptions to court's charge is
largely discretionary.
2. Criminal law 1163(4)-Allowance of in-
sufficient time for preparing exceptions must
be shown prejudicial.

of res gestæ; presumption being that court correctly ruled.

9. Criminal law 706-Cross-examination of accused, assuming deceased was in the bushes when shot, proper under evidence.

In prosecution for murder, cross-examination, assuming that deceased was in the bushes when accused went where he was and shot him, held justified under evidence.

To predicate reversal on allowance of insufficient time for preparing exceptions to court's charge, there must be showing of prej-ty; Geo. C. O'Brien, Judge.

Appeal from District Court, Hardin Coun

udice.

3. Criminal law 841-An hour and five minutes held sufficient to prepare exceptions to court's charge.

In prosecution for murder, where only exceptions were to failure to submit law of manslaughter and suspended sentence, and that charge on threats was confusing and did not affirmatively present accused's theory, allowance of an hour and five minutes to prepare exceptions held sufficient, in absence of showing that there was some other exception which could properly have been taken.

Ike Lilley was convicted of murder, and he appeals. Affirmed.

Singleton & Bevil, of Kountze, for appel

lant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J. Appellant was convicted in the district court of Hardin county of murder, and his punishment fixed at five years in the penintentiary.

(273 S.W.)

to him to induce him to have that belief. One who interposes an objection such as this must substantiate it by proof and nothing of that kind appears in this bill.

Appellant and Gray, deceased, lived near, in it indicating that appellant was under each other and were at outs resulting prin- arrest, or that anything was said or done cipally from differences and disputes between the wives and children of the respective families. On the morning of the homicide deceased and his young son were sawing wood some distance from the houses of the parties, estimated at from a few hundred yards to a quarter of a mile. Appellant took his double-barrel shotgun loaded with buckshot, went to the place where they were at work, and, after a short parley with deceased, shot him twice, killing him almost instantly. A daughter of deceased was an eye witness and testified to a short conversation between them, and that appellant raised his gun and said he was going to kill deceased, who remonstrated with him; that appellant lowered his gun, but raised it and fired. Deceased said to his boy, "Good-by, son; he has killed your father." She further testified that deceased had nothing in his hands, and was standing by the log on which he and his son were sawing when appellant came up. Mr. Bracken testified that he met appellant after the killing, and the latter said, "I killed Mr. Gray this morning." Witness replied, "The thunder you have; what did you do it for?" and appellant said, "He threatened my life yesterday; I never could get over it. The more I studied about it, the madder I got; and this morning I went and took my gun, and went and killed him." This witness went to the body of deceased and found him shot in two places with buckshot; the holes being described as between the size of a 50-cent piece and $1.00. This witness also searched for weapons, but found none. The feet of deceased were under the crosscut saw and his body lying upon the handle of same.

There are six bills of exception, the first of which was to an assumption by the state's attorney, in a question to the accused while a witness, of the fact that deceased was "in the bushes" when appellant went down there and shot him. The bill shows no error. The testimony in the record, as well as that quoted in the qualification to this bill, shows that deceased was in the bushes. The refusal of the court to give appellant's counsel time to then prepare his bill might be held erroneous, if there was any showing that a fuller bill was desired, or could have been obtained by its then statement, than Iwas later allowed by the court. One, who complains of the refusal of the allowance of sufficient time to take a bill of exceptions, must make some showing of injury.

Witness Bracken was allowed to state what appellant said to him when they met shortly after the killing. Bracken was a justice of the peace. The introduction of his testimony reproducing appellant's statements was objected to on the ground that the latter was under arrest. We have examined Bracken's testimony and find nothing

[1-3] Complaint is made of the fact that the court gave appellant's counsel only an hour and five minutes in which to prepare his exceptions to the court's charge. This it a matter necessarily largely within the discretion of the trial court, and facts must be shown in a complaint of this character by which we may be made aware of some injury. The only exceptions taken were to the failure of the charge to submit the law of manslaughter and that of suspended sentence, and also that the charge on threats was confusing, and did not affirmatively present appellant's theory regarding same. It appears to us that the exceptions taken could have been prepared in a very short time. The charge was not unusually long, nor was it in any way complicated. We find no application for a suspended sentence in the record, and there is no showing in the bill of any other matters in the charge to which an exception would have been taken, or which were erroneous, and which, if excepted to, could have availed appellant. Merely to say that appellant wanted time to take other exceptions is but a conclusion, and, unless it be shown that there was some fault in the charge to which an exception could have been taken in such manner as to have benefited the accused, we would not be inclined to hold that a longer time was necessary than was given.

The argument of state's attorney complained of in bill of exceptions No. 4 seems in line with the testimony, and not to be subject to the objection appearing in the bill.

[4] Appellant excepted to the charge for its failure to submit manslaughter and a special charge was offered upon that issue, and refused. We have carefully reviewed the facts, and are of opinion that such charge was not required. Aside from the fact of there being ill feeling between the men, as above referred to, appellant claimed to have overheard deceased on the afternoon or night before the homicide make statements, which appellant construed to be threats to take his life before the sun rose and set again. The next morning deceased and his little boy took their tools and went down in the woods and began sawing wood. As above stated, appellant then took his shotgun loaded with buckshot, went to where deceased was at work, and, after a short conversation, shot him twice. He claimed that, when he accosted deceased, the latter began to make a loud noise like a blowing horn and leaned toward a log. He said he thought deceased had a shotgun under the log, and, so thinking, he shot and killed him.

We see nothing in this to raise the issue of manslaughter. There is no complaint of the charge of the court in regard to selfdefense and same appears to us to sufficiently present the issues.

R. 325, 204 S. W. 999. This signifies his adoption of the bill as qualified. Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 107, and other authorities collated in Vernon's Tex. Crim. Stat. vol. 2, p. 556, note 35; also Waters v. State, 81 Tex. Cr. R. 491, 196 S. W. 536; Fults v. State, 83 Tex. Cr. R. 602, 204 S. W. 108; Wilson v. State, 87 Tex. Cr. R. 625, 224 S. W. 772; Perea v. State, 88 Tex. Cr. R. 382, 227 S. W. 305.

[5] Bill No. 6 was taken to the refusal to permit one Perkins to state that deceased told him he had an ill grudge against the name Lilley. We observe in the record that this witness was permitted to testify that deceased told him he was going to get a [7, 8] Appellant having accepted and filed gun and kill appellant, and, in view of this, the bill, and failed to challenge the correctwe perceive no serious harm in the rejection ness of the court's explanation of the bill at of the indefinite general statement made re- that time, he is not. in a position to assail garding the name Lilley, if, in fact, the wit-it on appeal. If, however, the qualification ness would have testified to this. The qual- were disregarded, we find ourselves conification of the court to this bill states that fronted with the proposition that the bill this witness testified that no statement was fails to show that the testimony adduced made affecting appellant's family in any was not res gestæ. The declaration of the way. We also observe that, if we under- appellant is of a nature that might be res stand this record, it seems bare of testi- gestæ and therefore admissible, although mony showing any effort on the part of de- the circumstances were such as to show that ceased to execute threats if theretofore made the accused was in custody at the time. See by him. He had no gun in his hand and Calloway v. State, 92 Tex. Cr. R. 506, 244 none was found at the scene of the killing, S. W. 549. Ignoring the qualification of the and all that appellant claims deceased to bill, it leaves open the question as to whether have done was to make the noise above men- the evidence adduced was res gestæ. The tioned and to have put his hand toward a action of the court in receiving the testilog, under which appellant says he thought mony on appeal is presumed correct, unless deceased had a shotgun. He saw no shot- by the bill it is shown to be erroneous. gun or anything resembling one, nor does Moore v. State, 7 Tex. App. 14; Douglas v. he give any sufficient reason for so thinking. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 However, the court did charge the jury on Am. St. Rep. 930. The testimony set out in the issue of threats and in a manner to the bill, being such as might have been propfairly give appellant whatever benefit a erly received as res gestæ, and the bill failcharge on the theory was calculated to al- ing to show that it was not res gestæ, the low him. presumption that the court correctly ruled

We find no error in the record, and the prevails. Ford v. State, 40 Tex. Cr. R. 284, judgment will be affirmed.

On Motion for Rehearing. MORROW, P. J. [6] 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 Bracken was on the stand, he was interrogated about certain statements made by the defendant to the said Monroe Bracken on the day of the homicide; and it had been developed by the testimony of the said Monroe Bracken 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 killed Joe Gray, and the said Monroe Bracken was permitted, over the objection of the defendant, to testify to the jury as fol

lows."

In qualifying the bill, the court said that the testimony was res gestæ, 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. Cr. R. 461, 26

50 S. W. 350; Brown v. State, 83 Tex. Cr.
R. 451, 203 S. W. 898; Branch's Ann. Tex.
P. C. p. 134, § 209. See, also, Cavanar v.
State (Tex. Cr. App.) 269 S. W. 1053.

[9] 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

(273 S.W.)

KAUFMAN COUNTY et al. v. GASTON et al. Kaufman county, plaintiff in error, for the

Error from District Court, Kaufman Coun- in this cause, and have refused to comply ty; Joel R. Bond, Judge.

therewith, the motion to make them parties in this court is hereby in all things granted, and the parties above named in their official capacity, are hereby substituted as plaintiffs in error in this cause. Articles 2099a, 2099b, and 2099c, 1918 Vernon's Sayles' Statutes;

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-18

Hall, Commissioner, v. Eastland County (Tex. sioners' court has refused to have the clerk Civ. App.) 254 S. W. 1113.