The defense urged is that it was on his own premises. Appellant and his wife had been separated. There were minor children, and in the divorce decree the wife was awarded custody of the children and possession of the residence, which was community property. The decree contained a provision that the wife should have full, complete and exclusive control of the premises and the rents and revenues therefrom for the purpose of supporting, maintaining and educating the children. during their minority. In awarding the custody of the children to the wife, it is stated in the decree that he shall have the right to see and visit them so long as he does not interfere with the management of the children or the property.

The appellant appeared upon the porch of the house occupied by his wife. Hearing some one, she opened the door, whereupon appellant immediately drew a pistol and pointed it at her. Her son-in-law appeared and took it away from him; appellant then drew a knife and attempted to open it, which was also wrested from him by the son-inlaw. Appellant then went into the yard and picked up an ax with which he attempted to strike his wife, but the son-in-law interfered.

In a bill of exceptions the proof of the acts of the appellant other than the possession of the pistol were objected to upon the ground that they were irrelevant and prejudicial. At least a part of the acts of the appellant were so intermingled with those that it was necessary for the State to prove, in order to make out its case, that the development of the essential facts would have been difficult, if not impossible, without revealing the acts of the appellant in the use of the pistol. In other words, they were clearly within the exception to the rule excluding other offenses which permits the proof of other acts of the accused which are a part of the res gestae although such acts may constitute a different offense from that charged in the indictment. Underhill on Crim. Evidence, sec. 88; Wharton's Crim. Ev., vol. 1, p. 228 and notes. The admissibility of that part of the transaction relating to the attempted use of the knife and ax is not so clear as that which reveals his attempted use of the pistol. Assuming that the evidence of those matters should have been excluded, upon an objection properly made, we think the matter is not so presented as to authorize review. The objection urged was that the testimony was irrelevant and prejudicial. This objection has been often held too general except as against evidence' which was obviously admissible for no purpose. McGrath v. State, 35, Texas Crim. Rep., 442; Hamblin v. State, 41 Texas Crim. Rep., 139; Ball v. State, 44 Texas Crim. Rep., 186; Carter v. State, 40 Texas Crim. Rep., 229; Barfield v. State, 41 Texas Crim. Rep., 20; Neely v. State, 56 S. W. Rep., 625.

The bill of exceptions are inadequate to present the exclusion of a part of the testimony adverted to for the additional reason that the objection was addressed to the proof of all the acts of the appellant, some of which were clearly admissible. Under such circumstances the objection made should point out the part of the testimony which is

deemed objectionable. When the attack is against the whole, the court is not in error in overruling the objection where he would have been authorized to exclude only a part. See Tubb v. State, 55 Texas Crim. Rep., 623, wherein the reason for the rule is stated. Other illustrations of this application will be found collated in Branch's Ann. Texas Penal Code, sec. 211. Even if the questionable part of the testimony had been singled out, the objection that it was immaterial would not have required its exclusion for the reason that the objection was too general, and for the further reason that the testimony was material as rebutting the theory arising fom the evidence that the appellant was on the premises to see his children and not to interfere with their management or that of the property. There is no intent to indicate that, in the opinion of the court, his right on the premises was such as would exempt him from prosecution under Article 476 of the Penal Code. The place at which he exhibited the pistol was, in our judgment, not his own premises within the meaning of the statute. The judgment of the court, for the time being, divested him of the right of occupancy and placed it in another, giving him permission only to visit it for a specific purpose. In our opinion, his rights were not unlike those of the owner of the property which is in possession of a tenant, and such landlord is not exempt from prosecution under the statute named. See Zallner v. State, 15 Texas Crim. App., 24; Elliott v. State, 39 Texas Crim. Rep., 244; Hooks v. State, 25 Texas Crim. App., 602; Clark v. State, 49 Ark., 4, 4 S. W. Rep., 658; Jones v. State, 17 S. W. Rep., 719. The facts in the case of Whitesides v. State (42 Texas Crim. Rep., 153) would call for the application of the same legal principles as those in the instant case. From that case we quote:

"The proof showed that the locus in quo where the alleged offense was committed was in a certain pasture; that the pasture was not rented to appellant's father, but he merely had a permissive use of the pasture with others; that appellant was seen with the pistol in said pasture at night."

The court held that the permissive use appertaining to the accused did not exempt him from prosecution under the statute.

We find no error in the record authorizing or requiring a reversal of the judgment, and it is therefore affirmed.

Affirmed.

J. G. MAUGIA V. THE STATE.

No. 6529. Decided January 11, 1922.

Burglary-Escape-Affidavit-Practice on Appeal—Jurisdiction.

Where the affidavit of the sheriff alleged the escape from jail of the appellant and the recapture of him on the following day, this ousted the juris

diction of this appeal to this court, and the same is dismissed. Following Lunsford v. State, 10 Texas Crim. App., 118, and other cases.

Appeal from the District Court of Coleman. Tried below before the Honorable J. O. Woodward.

Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

T. H. Strong, for appellant

R. G. Storey, Assistant Attorney General, for the State.

MORROW, PRESIDING JUDGE.-The appeal is from a judgment. convicting the appellant of the offense of burglary.

The Assistant Attorney General suggests the escape of appellant, attaching the affidavit of the sheriff of Coleman County to the effect that the appellant escaped from jail on the 20th day of December last and was recaptured on the following day. This escape ousted this court of jurisdiction of his appeal. Code of Crim. Proc., Art. 912. Jurisdiction is not restored by his recapture. Lunsford v. State, 10 Texas Crim. App., 118; Ex parte Wood, 19 Texas Crim. App., 46; Loyd v. State, 19 Texas Crim. App., 137.

The appeal is dismissed.

Dismissed.

WILL COLE v. the State.

No. 6449. Decided November 9, 1921.

Rehearing denied January 11, 1922.

Burglary-Certiorari-Practice on Appeal-Motion for Rehearing-Delay. Where, in a motion for rehearing, appellant asked for a writ of certiorari to complete the record, but failed to state in what particluar the record was incomplete, and two months have elapsed since, and no application for certiorari has been filed, the motion for rehearing must be overruled.

Appeal from the Criminal District Court of Dallas. Tried below beiore the Honorable C. A. Pippen.

Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

MORROW, PRESIDING JUDGE.-Conviction is for the offense of burglary; punishment fixed at confinement in the penitentiary for a period of two years.

The record revealing no fundamental error and containing neither statement of facts nor bills of exceptions, it is the duty of the court to affirm the judgment, which is accordingly done.

Affirmed.

ON REHEARING.

January 11, 1922.

HAWKINS, JUDGE.-Appellant urges in his motion for rehearing many things which can not be considered because not properly before us by bills of exceptions. He alleges that a motion will be filed in this court for writ of certiorari to bring up a complete record, and prays the court not to act on the motion for rehearing until the request for certiorari is presented. He fails to state in what particular the record is incomplete. Such record as we have before us was filed in this court on July 11, 1921. There is no excuse for counsel not knowing the condition of the record long before the case was submitted in the first instance. The opinion was delivered November 9th, 1921. Two months have elapsed since then, and still no application for certiorari has been filed. This court cannot countenance delays of such character, and will not withhold action under the circumstances.

Motion for rehearing is overruled.

Overruled.

TOм DONOHUE V. THE STATE.

No. 6532. Decided December 14, 1921.

Rehearing denied January 11, 1922.

1.-Aggravated Assault-Bill of Exceptions-Argument of Counsel-Practice on Appeal-Record on Appeal.

Where defendant presented to the trial court his bill of exceptions to the argument of state's counsel and the trial court made a written statement thereon that no objection was made to the argument of prosecuting attorney therein complained of, when such argument was made to the jury and that no exception was taken to said argument, and that the same was not allowed or approved as a bill of exceptions, this court cannot consider what purports to be the bill of exceptions accompanied by affidavit to the facts therein stated, and not part of the record.

2.-Same-Argument of Counsel-Practice in Trial Court-Affidavit.

If defendant's attorney sat quietly by and permitted argument which he deemed objectionable and did not raise his voice in opposition thereto and took no bill of exceptions and asked no charge requesting the jury not to consider same, this court is without power to consider the matter presented here upon affidavit of counsel.

3.-Same-Jury and Jury Law-Separation of Jury-Misdemeanor.

Where appellant complains of the separation of the jury in a misdemeanor case, this court cannot consider same in the absence of an affirmative showing that the separation of the jury did not take place as provided for by Article 746, Vernon's C. C. P.

4.—Same—Evidence-Character Witness-Bill of Exceptions-Cross-Exam

ination.

Where nothing appeared in the bill of exceptions or the record which showed that the State, upon cross-examination of a character witness of defendant, had asked her anything reflecting upon the relations of defendant toward her, or his conduct with her, there was no reason that defendant should be allowed to go into his personal conduct toward said witness. 5.-Same-Argument of Private Prosecutor-Practice on Appeal.

Where the bill of exceptions did not point qut to what statement of the private prosecutor objection was taken, this court cannot consider the same. 6.-Same-Sufficiency of the Evidence.

Where, upon trial of aggravated assault, the evidence sustained the conviction, there was no reversible error.

7.-Same-Bill of Exceptions-Rehearing-Practice in Trial Court.

Where appellant again insisted that the lower court committed reversible error in not taking action on bill of exceptions to argument of State's counsel, this court might content itself by saying that the correctness of the court's action may not be made an issue when only controverted by the affidavit of appellant's attorney in this court. Following Moore v. State, 47 Texas Crim. Rep., 410. However, this being an important matter of practice, the same will be further discussed.

8.-Same-Bill of Exceptions-Practice in Trial Court-Statutes Construed.

Where a bill of exceptions is presented to the trial court which, if merely incorrect, the proper course is indicated by Article 2065, Vernon's Civil Statutes, wherein the court is directed to suggest proper corrections, which, if agreed to, the court may make and the bill thus corrected shall be approved and filed.

9. Same-Bill of Exceptions-Practice in Trial Court-Statutes Construed.

If the corrections suggested in such case be not agreed to, it is directed in Article 2066, of said civil statutes, that the court shall mark such bill "refused" and return it to the counsel, and said court shall then make out and file what he considers a bill of exceptions, showing a correct presentation of the matter involved. And when no bill in lieu thereof has been filed by the court, this court will ordinarily reverse and remand. Following Rosa v. State, 86 Texas Crim. Rep., 646.

10. Same-Bill of Exceptions-Bystander's Bill-Statutes Construed.

In such a case if the court proceeds to file what he considers a correct bill of exceptions, and appellant is dissatisfied therewith, he may proceed to have prepared and file what is denominated a bystander's bill in accordance with the provisions of Article 2067 of said civil statutes.