J. G. Minkert, for appellant.-On question of argument of counsel: Davis v. State, 54 Texas Crim. Rep., 236; Taylor v. State, 50 id., 560; Jenkins v. State, 49 id., 457; Robbins v. State, 47 id., 312.

C. E. Lane, Assistant Attorney General, for the State.

PRENDERGAST, PRESIDING JUDGE.-Appellant was convicted for carrying a pistol and fined $100, the lowest penalty.

Pat Cheeves, a negro, gave a supper and dance one night at his house. A considerable number of negroes attended. They had intoxicating liquors there and it seems one or more of them got drunk. During the dance they had a cutting scrape in the house, and also a scuffle therein over a Winchester gun; they also had a scuffle over a Winchester in the yard. Pat Cheeves was trying to wrest the Winchester from the hands of another one of the negroes, claiming it was his. He and one other witness testified positively that while this scuffling. for the rifle was going on, appellant walked up to Pat, pulled his pistol, threw it down on him and ordered him to let the gun alone, which he did, and went in the house. Just before this, two pistol shots were fired on the outside of the house. Several of appellant's witnesses swore that they were out there, saw the scuffle over the gun and heard appellant order Pat to turn it loose, but they say they did not see appellant with the pistol at that time. Some of them say he did not have it, nor present it. That was a question of fact, however, which was solved against appellant by the jury.

The evidence as to the intoxicating liquor, drunkenness, pistol shots and cutting scrape, was drawn out by the State on cross-examination of appellant's witnesses. Appellant has some bills of exceptions to the testimony of some of the witnesses as to the cutting scrape, hearing pistol shots, etc. His bills are very meager and properly could not be considered, but in our opinion the evidence was admissible in crossexamination of appellant's witnesses as having a tendency to show the occasion for appellant having and presenting a pistol, and as tending to show that he was the party who fired the shots, or one of them, although no witness swore who fired any of the shots nor who was engaged in the cutting scrape. None of appellant's bills by any statement of what the evidence disclosed, or did not disclose, approved by the judge as a statement of the facts, exclude the idea, nor do they tend to exclude it, that all of said testimony was not res gestae of appellant's having and presenting his pistol.

By another bill it is shown that in cross-examination of one of appellant's witnesses, the county attorney asked him if he saw the scuffle in the house over the Winchester. He said he did not. He was also asked if he saw one of the parties have a gallon of alcohol and saw him lying on the floor drunk, and he said he did not. He was asked if he saw the cutting scrape and he said he did not, and some other such things as were testified to as having occurred by other witnesses. As he would answer each question, the county attorney would ask, that is,

one thing and then that is two things, then three things and then four things, etc., that occurred that you did not see. The witness would answer in the affirmative. We think all this was permissible crossexamination. Either side has the right to test the witnesses as to these various matters so that it can be shown what means of information and observation they had of the occurrences.

In some of his bills he complains that while the court sustained his objections to questions asked by the county attorney, that the county attorney persisted in asking them, notwithstanding the ruling of the court. This, of course, was improper conduct on the part of the county attorney and the court should have enforced his rulings, by whatever fine or penalty against the county attorney necessary to do so, but not having done so, we think this presents no reversible error and shows no injury to appellant that would require a reversal.

Appellant has two other bills complaining of the argument of the county attorney. He did not ask the judge, in writing or otherwise, to instruct the jury to disregard the county attorney's argument. In some respects we think it was improper. This court, long ago, in Pierson v. State, 18 Texas Crim. App., 524, said: "It has become quite common to except to the remarks of counsel for the State in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The State has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that, before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper, and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant's rights."

In Tweedle v. State, 29 Texas Crim. App., 586, on this subject, this court said: "Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Texas Crim. App., 227; Bass v. State, 16 Texas Crim. App., 62." See also the following cases: McConnell v. State, 22 Texas Crim. App., 354, 3 S. W. Rep., 699, 58 Am. Rep., 647; Young v. State, 19 Texas Crim. App., 536; Frizzell v. State, 30 Texas Crim. App., 42, 16 S. W. Rep., 751; Rahm v. State, 30 Texas Crim. App., 310, 17 S. W. Rep., 416, 28 Am. St. Rep., 911; Tipton v. State, 30 Texas Crim. App., 530, 17 S. W.

Rep., 1097; Lewis v. State, 29 Texas Crim. App., 201, 15 S. W. Rep., 642, 25 Am. St. Rep., 720; Walker v. State, 28 Texas Crim. App., 503, 13 S. W. Rep., 860; Love v. State, 35 Texas Crim. Rep., 27, 29 S. W. Rep., 790.

Appellant's bills on this subject do not show the occasion for the county attorney's argument, nor anything else in connection with the case as a statement of facts, approved by the judge to show the surrounding circumstances. Under the circumstances we think the matter presents no reversible error. The jury assessed the lowest penalty against appellant.

Appellant, in the court below, in no way excepted to the charge of the court, nor did he ask any special charge. For the first time in his brief, just filed, he complains of one paragraph of the court's charge. It is the settled law of this State that in misdemeanor cases the only proper way this court can consider an objection to the charge of the court is by bill of exceptions thereto taken at the time of the trial. Nothing of the kind was done in this case. Hence, we can not review his complaint of the charge of the court.

There being no reversible error, the judgment is affirmed.

[Rehearing denied November 11, 1914.-Reporter.]

Affirmed.

BUCK ROSS V. THE STATE.

No. 3247. Decided October 21, 1914.

1.—Manslaughter-Bills of Exception.

Where, upon trial of murder, and a conviction of manslaughter, the bills of exception were not filed within thirty days after adjournment of the court and no additional time was granted, they will be stricken out on motion of the State.

2. Same-Objections-Charge of Court.

Where the purported exceptions to the charge of the court were filed, but it did not appear from the record that they were ever presented to the trial judge before his charge was read to the jury, the same can not be considered on appeal.

3.-Same-Objections to Charge-Statutes Construed.

Not only must objections in writing be made to the charge of the court before it is read to the jury, but if the court overrules the objections, a bill of exceptions must be reserved to the action of the court and be incorporated in the record. Following Eldridge v. Citizens Ry. Co., 169 S. W. Rep., 375, and other cases.

4. Same-Charge of Court-Objections.

Even if the objections to the court's charge were considered, they present no error, as the first complaint as to the charge of murder passed out of the case, and the issue of defense of property was not raised by the evidence, and the question that the jury considered outside evidence is not borne out by the record.

5. Same-Admonition to Counsel-Objections to Charge of Court.

This court calls attention of counsel to the Act of the Thirty-third Legislature which requires them not only to object to the charge of the court in writing before it is read to the jury, but to reserve their exceptions by proper bill of exceptions in case the objections to the charge are overruled; if the court corrects his charge in accordance with the request made, the objections have no place in the record.

Appeal from the District Court of Fayette. Tried below before the Hon. Frank S. Roberts.

Appeal from a conviction of manslaughter; penalty, four years imprisonment in the penitentiary.

The opinion states the case.

C. D. Krause and J. T. Duncan, for appellant.

C. E. Lane, Assistant Attorney General, for the State.

HARPER, JUDGE.-Appellant was convicted of manslaughter and his punishment assessed at four years confinement in the penitentiary.

The Assistant Attorney General has filed a motion to strike from the record the bills of exception because not filed within the time allowed by law. The statute gives thirty days after adjournment of court in which to prepare and file bills of exception, and if more time is desired application must be made to the trial judge, who may grant or refuse such permission. In this case no application was made for additional time, and the court granted none, as shown by the record before us, and under such circumstances the motion of the Assistant Attorney General is sustained, the bills not having been filed within the time allowed by law.

There is what is termed in this record "defendant's exceptions to the charge of the court." This is not verified in any way. The trial judge's name is not appended thereto nor is it in any manner approved in a way so as to make it properly a record paper. It is true that the file marks of the clerk appear thereon and show this paper was filed May 16, 1914, the same date the court's charge was filed, but this does not evidence the fact that it was presented to the trial judge before his charge was read to the jury, or that it was ever presented to the trial judge. The radical changes made by the Thirty-third Legislature in regard to these matters has been frequently before our civil courts, and in each and every instance, so far as we have been able to ascertain, the holding has been that the fact that the objections were made before the charge was read to the jury must be evidenced by a bill of exceptions approved by the trial judge. (Eldridge v. Citizens Ry. Co., 169 S. W. Rep., 375; Heath v. Huffhines, 168 S. W. Rep., 974; Gulf, T. & W. Ry. Co. v. Culver, 168 S. W. Rep., 514; Ford Motor Co. v. Freeman et al., 168 S. W. Rep., 80: Southwestern Ry. Co. v. Wadsack, 166 S. W. Rep., 420; Sanders v. Thut, 165 S. W. Rep., 553; Johnson v. Hoover & Lyons, 165 S. W. Rep., 900; Quanah, A. & P. Ry. Co. v. Galloway, 165 S. W. Rep.,

546.) Other cases from our civil courts construing these amendatory Acts could be cited but as the cases above quoted discuss the matter fully from every viewpoint we deem it unnecessary to cite others. It appears that not only must objection in writing be made to the charge before it is read to the jury, but if the court overrules the objections a bill of exceptions must be reserved to the action of the court and be incorporated in the record. We think this the correct rule, unless we should be considering matters not verified properly. However, if we should ignore the statute, which we have no right to do, and consider the objections made to the charge, they present no error. The first complaint is the court erred in submitting the issue of murder. The jury found appellant guilty of manslaughter only, consequently this presents no error. The next two grounds relate to the failure of the court to submit. the issue that defendant had the right to slay in defense of his property. Take the case from appellant's standpoint, or testimony alone, is this issue presented? Appellant was manager of a pool hall, in which all were admitted. Deceased came into his pool hall, raised a row, pulled his knife, when appellant fled, deceased pursuing him. Deceased was caught by bystanders and carried out of the pool hall. Appellant then got a gun and went to the door of the pool hall. He says deceased had a bottle in his hand advancing towards the pool hall when he called to him not to come any nearer. That deceased continued to approach and drew his hand back with the bottle in it as if to strike, when he shot. This does not raise the issue of defense of property. Deceased was not attempting to take appellant's property, nor any part thereof, nor in any manner injure the property. According to his testimony it was appellant deceased was after and him alone, and the court submitted self-defense in a manner not otherwise complained of by appellant. Appellant's objections show that he also objected to that portion of the charge which instructed the jury that what they may have heard of the case, either from hearsay or otherwise, or should any juror have any knowledge as to the character of any witness who has testified on the trial, either in favor of or against the witness, such juror is prohibited from stating such knowledge to his fellow jurors, and to confine themselves alone to the evidence adduced on the trial. Had the jurors stated any fact which they were prohibited by this charge from stating, it . would be error in that they would be considering additional evidence to that adduced on the witness stand, and the criticisms of this part of the charge present no error.

The bills relating to the admissibility of testimony can not be considered as the bills of exception were not filed within the time permitted by law.

We trust that counsel in all cases will pay more attention to the Act of the Thirty-third Legislature which requires them to object to the charge of the court before it is read to the jury, and if they do object to the charge or any part thereof they will preserve such objections in a proper bill of exceptions. This is now required by the statute law of the State, and it will aid this court materially. After objections