Miller v. State , 129 Tex. Crim. 166 ( 1935 )

Appellant insists that we were in error in holding that he failed to object to testimony substantially the same as that complained of in bills of exception 1 and 2. In this connection, he calls attention to the statement in bill of exceptions No. 2 that it was agreed "that said bill of appellant should follow all similar testimony in the case without taking the time of the court to object to same and without same being considered waived by the appellant." We know of no rule of procedure or practice authorizing the bringing forward of several grounds of complaint in one bill of exceptions. On the contrary, it is the settled rule that a single bill embracing exceptions to the testimony of several witnesses is multifarious and not entitled to consideration. 4 Texas Jur., 253; Middleton v. State, 217 S.W. 1046; Carter v. State, 280 S.W. 779; Kitchen v. State, 276 S.W. 252. Hence said bills would necessarily be multifarious if effect be given to the stipulation therein that they should cover all similar testimony. We quote from 4 Texas Jur., 253, as follows: "Each ground of complaint relied on for a reversal should be brought forward by a separate bill of exceptions; a bill which brings forward two or more grounds, or complains of a number of separate matters or rulings is multifarious and will not ordinarily be considered. This is true, for example, of a single bill containing exceptions to the testimony of several witnesses or numerous different objections to the testimony of a single witness * * *."

We are constrained to hold that orderly procedure demands that objection be made at the time of the introduction of the testimony and a bill of exceptions to the ruling complained of brought forward; otherwise, the testimony is deemed to have been received without objection on the part of the defendant on trial. This being true, we have in the record without objection the testimony of two officers to the effect that deceased stated to them while dying that he had come to the home of appellant in an effort to find his wife. Reference to the testimony of which complaint is made in bills of exception 1 and 2, as set out in the original opinion, manifests that said officers gave substantially the same testimony. Under the circumstances, the rule laid down in Wagner v. State,109 S.W. 169, and reiterated in many subsequent cases, and which is quoted in our original opinion, was given proper application to the subject under consideration.

In the original opinion it was stated that it was deemed unnecessary to discuss bill of exceptions No. 5. In his motion for rehearing appellant reiterates his contention that said bill reflects reversible error. An examination of the same dicloses that the mother-in-law of the deceased was called to testify for the State. Being cross-examined by counsel for appellant, she was asked: "You talked to your daughter (wife of deceased) down there that day?" She replied: "I talked with them and prayed with them." At this juncture counsel for appellant requested the court to instruct the jury to disregard the statement of the witness to the effect that she prayed with appellant and the wife of deceased. The request being denied, appellant insists that this was prejudicial to the extent that a reversal should follow. His position seems to be that the answer of the witness, in indicating that she was a Christian and believed in prayer, probably influenced the jury to give undue weight to her testimony. We are not impressed with the view that the answer complained of could have brought about any possible injury to appellant. Without entering into a discussion of the matter, we are of opinion that appellant attaches more importance to the incident than the circumstances under which it occurred would warrant.

In bill of exceptions 26 it is shown that the district attorney stated in argument to the jury, in effect that appellant's witnesses had perjured themselves in an effort to acquit him. Substantially the same argument was considered by this court in Akers v. State, 79 S.W.2d 128. It was there suggested that counsel for the State should probably have used milder language in drawing his inference from the evidence. However, we said that either side had the right in argument to draw reasonable deductions from the testimony adduced on the trial. If the testimony of the State was true, it would follow that the version of appellant's witnesses could not also be true. We do not approve the language employed by counsel, but are of opinion that under the record before us the bill fails to reflect reversible error.

It is shown in bill of exceptions No. 27 that the district attorney in argument stated, in effect, that any man would have made an effort to bring his three year-old baby boy away from an adulterous house. This bill sets forth the argument, appellant's objections thereto, the fact that same were overruled, and appellant's exception. The bill embraces no such surrounding facts or antecedent circumstances as will enable us to reach the conclusion that the argument was not warranted by the facts in evidence. If the statement of facts be consulted, it is observed that the testimony of the State showed that appellant had taken the wife and small boy of deceased from deceased's home. As shown in the original opinion, a witness for the State testified that the wife of deceased was in the home of witness in February, 1934, and that at least on three occasions appellant came to see her. On one of these occasions he went upstairs after 7 p. m., that being the part of the house in which deceased's wife had her rooms, and was not seen by the witness any more that night. Looking to the testimony, it would appear that counsel for the State was drawing reasonable deductions when he made the argument under consideration.

The remainder of the bills of exception referred to in appellant's written argument on motion for rehearing relate to remarks of the district attorney in argument to the jury. These bills are numbered in the transcript 28, 29, 32 and 33. We deem it unnecessary to discuss said bills. After carefully examining them we are not impressed with the view that they manifest reversible error.

We are constrained to adhere to the conclusion announced in the original opinion concerning the sufficiency of the evidence.

The motion for rehearing is overruled.

Overruled.