22 S.W. 989 | Tex. Crim. App. | 1893
1. Having failed to reserve a bill of exceptions to the action of the court overruling his application for a continuance, defendant is not entitled to a revision of that question on appeal.
2. This court is not called upon to determine the admissibility of testimony when the bill of exceptions merely recites that it was offered by *24 the State. It should be made affirmatively to appear in the bill that the evidence was admitted and went before the jury. Burke v. The State, 25 Texas Cr. App., 172; Willson's Crim. Stats., sec. 2368.
3. Defendant's challenge for cause to one of the jurors tendered him having been overruled by the court, he excepted, and peremptorily excused said juror. Inasmuch as the bill of exceptions fails to show that defendant was in any way injured, there was no error in this ruling. The defendant did not exhaust his peremptory challenges, nor was an objectionable juror empanelled. Willson's Crim. Stats., sec. 2293.
4. Over defendant's objection, the State was permitted to introduce in evidence an unrecorded bill of sale, executed in favor of the alleged owner, conveying all cattle in a certain brand, and which brand had been originally placed upon the cow charged to have been stolen. That such testimony is admissible is not an open question in this State. Morrow v. The State, 22 Texas Cr. App., 248; Tittle v. The State, 30 Texas Cr. App., 597; Thompson v. The State, 26 Texas Cr. App., 466.
5. One of the grounds set up in the motion for a new trial is the alleged improper remarks of the district attorney to the jury during his opening argument. This is in no way verified, either by bill of exceptions or otherwise. Improper argument or objectionable remarks made in the discussion of it case before the jury should be excepted to at the time, and a charge asked instructing the jury to disregard such remarks, in order to require a revision of that matter on appeal; and usually it is too late to urge such objection after the trial. Willson's Crim. Stats., sec. 2321.
6. The charge of the court is not subject to the criticism, that it is upon the weight of the evidence in construing and limiting the effect and probative force of the unrecorded bill of sale admitted in evidence. As given, it is, in the light of the testimony, favorable to defendant.
The testimony, we think, is sufficient to support the conviction. The judgment is affirmed.
Affirmed.
Judges all present and concurring. *25