28 Tex. Ct. App. 79 | Tex. App. | 1889
Bill of exception Ho. 2 is as follows: “Be it remembered that on the trial of the above entitled cause the State offered to prove the following facts, viz., by J. H. Bickett, a witness for the State, that at the time defendant is charged to have killed G. L. Pool, he, said
It will be observed that the bill of exceptions is incomplete, in that it does not state that the testimony objected to was admitted in evidence before the jury. Unless it was admitted in evidence, certainly no material error was committed in overruling the objections to it. A bill of exceptions must be so full and certain in its statements that in and of itself, it will disclose all that is necessary to manifest the supposed error. It must sufficiently set out the proceedings and attendant circumstances below to enable this court to know certainly that error was committed. Willson’s Crim. Stats., sec. 2368. When the exception is to the admission of testimony it must not only show that the testimony was offered, but must further show that it went before the jury as evidence. Burke v. The State, 25 Texas Ct. App., 172. In considering a bill of exceptions do the admisssion of evidence it must appear from the bill itself that the testimony objected to went before the jury. We can not look to the .statement of facts to determine that fact. We are not called upon therefore to decide the question sought to be presented by bill of exception Ho. 2; but if we were, we should hold that there was no error in admitting the testimony objected to. The official character of Bickett and Pool was an incidental, collateral issue, and was not an issue directly between said officers and the public. Such being the case, parol evidence was competent to prove their official character. Woodson v. The State, 24 Texas Ct. App., 153.
2. Bill of exception Ho. 3 is incomplete and defective in the same particular as bill Ho. 2. It recites that the State offered to prove by a record of the District Court of Frio County that the defendant, at the time he killed Pool, was charged by indictment in the District Court of Frio County with murder, and said record, together with defendant’s objections thereto, are set forth in the bill. But it is not shown by the bill that said record was read in evidence before the jury. But here again, were we to consider the bill sufficient, we would hold that said record was competent evidence. It established a circumstance which tended to show defendant’s motive in committing the homicide; which tended to show that he was a fugitive from justice, who had resolved to evade and resist arrest for a capital crime at any and all hazards regardless of consequences, •and regardless of whether his arrest should be attempted legally or illegally.
3. For the reasons above stated it was not error to admit the testimony-set forth in bill of exception Ho. 4. Said testimony was also competent for the purpose of showing that in attempting to arrest the defendant the officers and posse were acting by authority of law, and that said attempted arrest was legal.
4. Bill of exception Ho. 5 does not state that the testimony objected to went before the jury, and is therefore defective. But we think the testimony was competent to show that the.attempted arrest of the defendant was a legal one.
5. . Bill of exception Ho. 6 does not show that the testimony objected to went before the jury, and we shall not therefore consider it.
6. Bill of exception Ho. 7 is not maintainable. The testimony objected to was competent to show that in evading arrest, and in violating the law by carrying arms, the defendant was aided and supported by Johnson, and that the two acting together, were openly and continuously defying the law and its officers, to the terror of the citizens of the neighborhood. And further, it was competent to explain the conduct of the officers and posse in attempting defendant’s arrest, and to show that said officers and posse had good reason to believe that defendant’s arrest would be resisted by him and said Johnson, and that therefore said officers and posse, in attempting said arrest in the manner they did, acted within the limits of prudence and'of the law.
7. Bills of exception 8, 9, and 10 are to the action of the court in rejecting certain testimony therein set forth offered by the defendant. Each of these bills is too defective to be considered. They do not recite facts which would enable this court to fully understand and know all the facts, on which the correctness or error of the rulings complained of depend. Livar v. The State, 26.Texas Ct. App., 115.
8. We come now to a consideration of the charge of the court, to which the defendant reserved several exceptions and here insists upon the same as cause for reversal:
(1) When considered as a whole we see no error in paragraph 5 of the charge, defining and explaining “implied malice.” The words “considerable provocation” in said paragraph, in the connection in which they aré used, convey the same meaning as the words “adequate cause;”' and besides the court in said paragraph was defining implied malice and not manslaughter, and defined it we think correctly.
(2) That portion of the charge which explains the law relative to the-rights, duties, and responsibilities of parties attempting an arrest, and of the party attempted to be arrested, respectively, is not we think ob~
(3) We have, as far as we are capable of doing, carefully considered every objection made to the charge of the court. We fail to find any error in it of which the defendant can complain. If erroneous in any particular the error is in the defendant’s favor. It is obvious that the learned trial judge prepared his charge with great caittion and with a vieAV of giving the defendant the benefit of every phase of the case favorable to him presented by the evidence. We think, taking the charge as a whole, that it is unobjectionable on the part of the defendant, and that none of the exceptions made to it are Avell grounded.
9. There is no merit in the objection made to the verdict as appears by an inspection of the original sent up in the transcript/
Finding no error in the proceedings and conviction the judgment is affirmed.
Affirmed.
Judges all present and concurring.