Wells v. State , 250 S.W. 1023 ( 1923 )

LATTIMORE, J.

Able' counsel for appellant have filed a request for permission to submit a second motion for rehearing, supporting same by citation of opinions of this court as now constituted, and as formerly adorned, and in forcible terms have invited again our review of the proposition that the trial court erred in admitting the statement of appellant on cross-examination that he was married to a mulatto negress, notwithstanding the fact that the learned trial court offered to instruct the jury not to consider such testimony, which offer was rejected by appellant. It is not insisted that the matter is something which escaped our notice and was not passed upon by us in the original opinion and the motion for rehearing, but it is urged that our conclusion is so materially erroneous as that appellant should be granted permission to file a second motion for rehearing and have his ease reversed and remanded.

In the bill of exceptions complaining of this matter it is not averred that appellant is a white man, and, for ought shown by said bill, he may be the blackest of black men. Hundreds of cases, from the foundation of this court down might be cited whose holding is clear and uniform that, unless a. bill of exceptions shows an error, it will not be held by us as presenting one. In stating the grounds of his objection to the testimony in said bill of exceptions, appellant stated that the testimony showed that he was an Indian.' What the real facts in evidence on this point might be is not shown in said bill. We are not required by our rules or the precedents to resort to the statement of facts in such case, but may rest our decision on' the proposition that the trial court is presumed to know what the facts were, and to have ruled correctly; but eminent counsel have so earnestly urged the point that we have examined the statement of facts.

Appellant testified on cross-examination that he was a half-breed Indian, but there is no suggestion in his testimony as to what the other half was save the inferences from the fact of his associates. Beyond question he was engaged in a gambling transaction with a group of negroes, and, according to his own testimony, in a place where negroes assembled for the purpose of gambling, and to which he had been a number of times before. Other negroes were present besides those engaged in the gambling game with him. Appellant had been raised in Oklahoma and said that his wife was a mulatto negro woman. In order to base a claim of prejudice arising from certain testimony, there must be an affirmative showing of facts which would suggest the possibility of such prejudice. We do not find such suggestion in this bill of exceptions nor in this record. If the fact that appellant voluntarily associated himself with negroes in gambling would not prejudice the jury against him, nor the further fact voluntarily admitted that appellant had been convicted of bootlegging intoxicating liquor, we are totally unable to see how the fact that his wife was a negro woman could have any possible effect to prejudice the jury against him. Our perusal of the facts in evidence inclines us to the view that, instead of the judgment reflecting any degree of prejudice, it shows a great degree of mercy on the part of the jury, for they inflicted upon him only a penalty of 10 years in the penitentiary under testimony that might well support a much graver punishment.

Believing the application for permission to file a second motion for rehearing to present nothing calling for favorable action on our part, same will be denied.