Morgan v. State ( 1930 )

Appellant questions our refusal to consider certain of his bills of exception because neither the search warrant nor the affidavit therefor were incorporated in the bills. From Gonce v. State, 112 Tex.Crim. R., 14 S.W.2d 845, we quote:

"We cite the following as a few only of the cases in which this court has directly held that a bill of exception complaining of the receipt in evidence of discoveries made by officers acting under what were claimed to be defective search warrants or affidavits were insufficient unless such bills certified the substance of said instruments or set out the affidavit or warrant. Holmes v. State, 104 Tex.Crim. R.,282 S.W. 585; Burns v. State, 105 Tex.Crim. R., 288 S.W. 1087; Pierce v. State, 106 Tex.Crim. R., 290 S.W. 1095; Buchanan v. State, 107 Tex.Crim. R., 298 S.W. 569; Fisher v. State, 107 Tex.Crim. R., 296 S.W. 545; Levine v. State,109 Tex. Crim. 331; Ford v. State, 9 S.W.2d 344. In the present bill the claimed defects appear only as grounds of objection."

Appellant also refers us to the statement of facts claiming that it reveals improper cross-examination of appellant which amounted to putting in issue his general reputation by the state. It is conceded that no objection thereto is brought forward by bill of exception, but that complaint was made thereof in motion for new trial. The complaint thus made came too late. We quote from Gann v. State, 109 Tex.Crim. R.,6 S.W.2d 751:

"In his motion for rehearing appellant again complains at the reception of certain evidence. If exception was reserved to the court's ruling upon such matters during the trial, the complaint is not brought forward by proper bills. Apparently appellant sought to preserve the point by complaint in his motion for new trial. By an unbroken line of authority this cannot be done. Owens v. State, 4 Tex. App. 153[4 Tex. Crim. 153]; Herchenbach v. State, 34 Tex.Crim. R., 29 S.W. 470; Brazil v. State (Tex. Cr. App.), 63 S.W. 130; McCasland v. State (Tex. Cr. R.)70 S.W. 547; Janca v. State, 56 Tex.Crim. R., 119 S.W. 99; Ellis v. State, 57 Tex.Crim. R., 124 S.W. 667; Davis v. State, 69 Tex.Crim. R., 154 S.W. 226; Ward v. State,70 Tex. Crim. 393, 159 S.W. 273, in which a long list of additional authorities are collated. Later cases to the same effect are Boone v. State, 90 Tex.Crim. R., 235 S.W. 580; Howard v. State (Tex. Cr. R.) 1 S.W.2d 289; Cuellar v. State (No. 11, 910, opinion this date;) 7 S.W.2d 565."

The motion for rehearing is overruled.

Overruled.