appellant waived error in overruled challenge for cause by accepting juror without peremptorily striking him
How later courts described this case
- appellant waived error in overruled challenge for cause by accepting juror without peremptorily striking him
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
Appellant bases his motion for rehearing upon two propositions, the first being that the trial court committed error in declining to continue this cause because of the absence of one of appellant’s attorneys. The qualification to the bill of exception complaining of the court’s refusal to grant a continuance is set out in our original opinion. The bill was accepted by appellant without objection to such qualification and is therefore binding upon him. The recitals in the qualification may not be impeached by the averments in appellant’s motion.
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The second proposition urged in the motion for rehearing is that Bill of Exception No. 4 shows that the trial court erred in not striking from the record the evidence of the witness, Warren Smith. A further examination of the bill reveals that upon its face it reflects no error. The bill recites that the State was attempting to qualify the witness to testify that the general reputation of appellant for being a peaceable and law-abiding citizen was bad, and that in response to the State’s questions the witness said: “Well, from what I see at night — I get out a good deal and I see and hear things, a man establishes that type of reputation around here without you having to file on him for any offense, and I have heard and have seen, and I am testifying from what I have seen.” It is observed that the bill fails entirely to show that the witness ever testified that appellant’s reputation was bad, or that witness reached any conclusion one way or another about it from what he had seen. Appellant insists that the bill should be appraised from its face. Responding to such insistence, we must necessarily hold the bill to be insufficient to reflect error. In Sec. 207, p. 131, of Branch’s Ann. Tex. P. C. is found the following statement. “A Bill of Exceptions should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error.” The text is supported by many cited authorities.
The motion for rehearing is overruled.