source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    SCOTT v. STATE.
    (No. 3857.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    Criminal Law <&wkey;1095, 1102 — Record on Appeal — Statement of Facts.
    Without an order authorizing it, statements of facts and bills of exception cannot be filed after the adjournment of the court at which the trial occurred, and, where so filed, motion to strike out should be sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2S47; Dec. Dig. <&wkey;>1095, 1102.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    Charlie Scott was convicted of violating the liquor prohibition law, and he appeals.
    Affirmed.
    J. B. Forse, of Newton, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for violating the liquor prohibition law which was in force in said county. His penalty was assessed the lowest prescribed by law for the misdemeanor offense.

The purported statement of facts and bills of exception were all filed after the adjournment of the court at which the trial occurred, and there is no order authorizing this to be done. Under the statute and the many and uniform decisions of this court, the Assistant Attorney General’s motion to strike out and not consider any of them must be, and is, sustained. In the absence of these, no question is raised, which can be reviewed on this appeal.

The judgment is therefore affirmed.


author: DAVIDSON, J.

text:
    CHRISTOPHERSON v. STATE.
    (No. 3869.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    Breach oe the Peace &wkey;>8 — Evidence—Sufficiency.
    Evidence that defendant; while walking down a public road 60 yards from a residence, fired a gun in a direction opposite to the residence, with the purpose of signaling one whom he was to meet at that point, in the absence of any indication of ill will between him and the person residing there, or intention on defendant’s part to disturb the peace, is insufficient to sustain a conviction for disturbing the peace by shooting off a gun.
    [Ed. Note. — For other cases, see Breach of the Peace, Cent. Dig. § 6; Dec. Dig. <§=^8.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    Willie Christopherson was convicted of disturbing the peace by shooting a gun near a private residence and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under a charge of disturbing the peace by shooting off his gun near a private residence. There is very little conflict, if any, in the testimony. Dougherty, the owner of the house whose peace is said to have been disturbed, testified he was sitting in one of the rooms of his house and heard the discharge of a gun; he looked out and saw the defendant 47 steps from his residence with a gun; that defendant fired the gun off in the opposite direction from the house across a lake. His son testified that appellant fired the gun. He placed the distance at 60 yards. Another witness testified he saw appellant fire the shot. The gun it seems was a shotgun. All of them testified that appellant was going down the road and had passed Dougherty’s house some distance when he fired the gun and in the opposite direction from the house, across a lake. If there was any disturbance it was by reason of the gun being fired within 45 or 60 yards of the house and in the opposite direction of the house. There is nothing to indicate any ill will between the parties, or conduct on the part of appellant that it was for tile purpose of disturbing the peace. The case rests on the simple fact that he discharged his gun as stated. Appellant introduced one witness named. Hamilton, who testified: That the night before this occurrence he and appellant had been talking about going to Louisiana. To discuss this trip they agreed to meet at this lake to determine that matter. It was understood if appellant went to the lake and fired his gun, it was a signal for the meeting. That he, upon hearing the gun, went to the lake and met appellant. They talked about the matter, and remained together a while, separating, going their respective ways. This is the ease. We are not satisfied appellant should have been convicted under this testimony, and for this reason the judgment will be reversed and the cause remanded.
      <S=x>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WHEAT v. STATE.
    (No. 3606.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Chimin An Law <&wkey;1101 — Appeal anb Ekbob —Record on Appeal — Statement op Facts.
    Where a criminal case was tried March 10, 1915, and properly appealed to the Court of Criminal Appeals, wherein the transcript, which contained no statement of facts, was filed on the 18th of May, and the county judge’s attention was called to the omission, whereupon he, on the 9th of June, prepared and certified a statement of facts, which was filed in the Court of Criminal Appeals on the 14th of June, appellant used all the diligence required to obtain such statement, and was deprived thereof without his fault, entitling him to a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. <&wkey;>1101.]
    Appeal from Angelina County Court; John F. Robinson, Judge.
    B. C. Wheat was convicted of crime, and he appeals.
    Reversed on rehearing and remanded.
    I. D. Fairchild, of Lufkin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In the original consideration of this ease it was with considerable hesitancy we concluded to consider, and did at all consider, the statement of facts filed herein. Appellant, in his motion for rehearing, earnestly attacks the statement of facts as incorrect, which was at such a late date prepared by the judge, and at his direction, some time after the case had been appealed and the transcript on file here, had a certified copy thereof sent up.

The case was tried March 10, 1915. It was properly appealed here, and the transcript therein filed in this court on May 18, 1915. It then contained no statement of facts. It seems that the county judge’s attention was later called thereto, and on June 9th, fully 90 days after the case was tried, he for the first time then prepared and filed what he certifies to be the evidence on the trial. 1-Ie had .a certified copy thereof made and sent to this court, which was filed herein on June 14th. It has been the uniform holding of this court that when an appellant uses all diligence to obtain a statement of facts, and is deprived thereof without his fault, that, of itself, entitles him to a reversal of the case. Haak v. State, 60 Tex. Cr. R. 366, 132 S. W. 358, where many of the earlier cases are collated. This has been the holding of the court even down to the present time. Upon a reconsideration of the matter, we think it is with certainty shown that appellant used all the diligence that the law required of him to obtain a statement of facts, and that he was deprived thereof without any fault on his part.

The judgment of affirmance and original opinion is therefore set aside, a rehearing granted, and the judgment is ordered reversed, and the cause remanded, and the original opinion is withdrawn.


author: HARPER, J.

text:
    JOHNSON v. STATE.
    (No. 3866.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    1. Prostitution <&wkey;3 — Information — Sur-plusage-Striking Out.
    Upon an information charging defendant with alluring, procuring, and soliciting a female to be at a certain place to have unlawful intercourse with men, the further allegation that he gave numerous persons her location, and thereby procured men to meet her, whereby they had unlawful sexual intercourse with her, for which purpose the said meeting was brought about, if surplusage, leaving sufficient to allege the offense and to enable defendant to plead the judgment in bar of another prosecution, left the information good.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dee. Dig. <&wkey;>3.]
    2. Criminal Law <&wkey;1167 — Appeal — Sur-plusage-Harmless Error.
    Where alleged surplusage would not render admissible any testimony that would not otherwise have been admissible, the failure to strike it out was not reversible error.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. &wkey;1167.]
    3. Indictment and Information <&wkey;120 — Surplusage.
    Alleged surplusage, which, if stricken, would leave an information sufficiently charging the offense, was not improper, as the pleader’s election to go into more detail than was necessary, and to give the method of the crime would not affect its validity.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §. 315; Dee. Dig. &wkey;120.]
    4. Criminal Law <&wkey;1102 — Appeal—Striking — Statement of Facts.
    Where the term at which defendant was tried adjourned September 25, 1915, and the statement of facts was not presented to the court for approval nor filed until November 10, 1915, and no sufficient reason for the delay was shown, the motion to strike out the statement of facts will he sustained.
    [Ed. Note. — For other eases, see Criminal Law, Dec. Dig. <§=^1102.]

      Appeal from Jones County Court; J. E. Lindsey, Judge.
    Sidney Johnson was convicted of alluring, procuring, and soliciting a female to be at a certain place to meet and have unlawful intercourse with men, and he appeals.
    Affirmed.
    A. L. Brantley, of Graham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an indictment charging:

“That anterior to the presentment of this indictment Sidney Johnson, late of the county of Jones, on the 23d day of June in the year of our Lord one thousand nine hundred and fifteen, with force and arms, in the county of Jones and state of Texas, did then and there allure and procure and solicit a female person, Mrs. Willie Marie Johnson, to be at a certain place in the town of Stamford, to wit, a vacant lot near the public library in the town of Stamford, Tex., for the purpose of meeting and having unlawful sexual intercourse with male persons, and he, the said Sidney Johnson, did then and there give to numerous male persons the locations of said Willie Marie Johnson and thereby procured male persons to meet the said Willie Marie Johnson, whereby they did then and there have unlawful sexual intercourse with the said Willie Marie Johnson, for which purpose the said meeting was brought about.”

He filed a motion to strike out the following language in the indictment:

“And he, the said Sidney Johnson, did then and there give to numerous male persons the locations of said Willie Marie Johnson, and thereby procured male persons to meet the said Willie Marie Johnson, whereby they did then and there have unlawful sexual intercourse with the said Willie Marie Johnson, for which purpose the said meeting was brought about”

—alleging that said language was surplusage and would confuse the jury; that the remainder of said bill charges an offense against the law without this surplusage.

Surplusage never vitiates an indictment, if the surplusage can be stricken out, and the remaining language charge an offense. Branch’s Crim. Law, § 905, correctly states:

“If, eliminating surplusage, the indictment so avers the constituent elements of the offense as to ’apprise defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance, 'under our Code, and therefore sufficiently charges the offense.” Coleman v. State, 2 Tex. App. 514; Clark v. State, 41 Tex. Cr. R. 641, 56 S. W. 621; Lomax v. State, 38 Tex. Cr. R. 318, 43 S. W. 92; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110, and other cases cited under this section.

And, as the language used would not render admissible any testimony that would not have been admissible, the failure to strike it out does not present reversible error, if surplusage. ■

But we do not think the language used in. any sense improper in the indictment Appellant admits the indictment charges an offense, and says it would do so without this language, and, if the pleader elected to go more in detail than was absolutely necessary, and give the mode and method of procurement used, this would not affect the validity of the indictment.

The term of court at which appellant was tried adjourned September 25, 1915, and the statement of facts was not presented to the court for approval nor filed until November 10,1915. No sufficient reason is assigned for this delay, and the motion of the Assistant Attorney General to strike out the .statement of facts must be sustained. No other question is presented we can review, with no statement of facts we can consider.

The judgment is affirmed.
      -«gr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOONEYHAM v. STATE.
    (No. 3870.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    1. Indictment and Information &wkey;H25 — Distinct Offenses—Statute.
    An information under Pen. Code 1911, art. 634, declaring that one who unlawfully ■sells any intoxicating liquors, or does a number of other acts therein enumerated, shall be and be punishable as a vagrant, alleging that defendant unlawfully sold intoxicating liquor and committed a number of acts declared by the statute to constitute vagrancy, was not defective ; as, where several offenses are embraced in the same definition and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 334—400; Dec. Dig. &wkey;125.]
    2. Indictment and Information &wkey;>119 — Surplusage—Allegation.
    Unnecessary words in an indictment, and redundant allegations, and allegations in no way necessary to a description of an offense, and which can. be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as surplusage, and may be entirely disregarded.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. <&wkey;>119.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Lee Mooney ham was convicted of vagrancy, and he appeals.
    Affirmed.
    Bernard Martin, of Wichita Falls, for appellant. T. B. Greenwood, Co. Atty., and John Davenport, Asst. Co. Atty., both of Wichita Falls, and G. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The information, based upon and following a proper complaint, after the necessary preliminary allegations, among other things, averred: That appellant on or about August 22, 1915, in Wichita county, Tex., was then and there a vagrant, to wit, a person who unlawfully sold vinous, alcoholic, malt, intoxicating, and spirituous liquors.

The statute (article 634, P. C.)is:

“The following persons are, and shall he punished as, vagrants, viz.: * * * (c) Persons who unlawfully sell any vinous, alcoholic, malt, intoxicating or spirituous liquors."

Said article of the Code enumerates a large number of other acts which makes a person a vagrant, and the information in the same count also averred appellant committed quite a number of them. But we have selected above the only one submitted by the court, and which was averred as shown. It is unnecessary to state any of the others averred or covered by the statute.

None of appellant's contentions claiming the information was fatally defective can be sustained under the well-established law of this state applicable herein. It is unnecessary to discuss his several contentions. They are all embraced and held against him in the authorities cited in Goodwin v. State, 70 Ten. Cr. R. 600, 158 S. W. 274, where the rules applicable herein are stated. We think it sufficient to quote from that decision, which we do:

"Judge White, in section 405, p. 297, in his Annotated Criminal Procedure, collates some of the authorities, and therein lays down therefrom the correct rule, as follows: `Where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged con~ junctively in the same count.' See Phillips v. State, 29 Tex. 226; Lancaster v. State, 43 Tex. 519; Berliner v. State, 6 Tex. App. 182; Copping v. State, 7 Tex. App. 61; Day v. State, 14 Tex. App. 26; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374. 17 5. W. 934; Willis v. State 34 Tex. Cr. R. 148, 29 S. W. 787; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; State v. Smith, 24 Ten. 285; State v. Edmondson 43 Tex. 162. See, also, section 383, p. 286, White's C. C. P.
"Mr. Bishop, in volume 1,, § 434, of his New Criminal Procedure, says: `Some single offenses are of a nature to be committed by mnny means, or in one or another of severni vnrying ways. Thereupon a count is not double which charges as many means ns the pleader chooses, if not re-pugnnnt; and at the trial it will be established by proof of its commission by any one of them.' Again, in' section 436, he says: `A statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transnctioa does all violates the statute but once, and incurs only one pennlty. Yet lie violates it equally by doing one of the things. Therefore the indictment on such a statute may allege in n single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute has "or," and it will not be double, and it will be established at the trial by proof of any one of them.' * * *
"Again, it is elementary in this state that on-necessary words in an indictment may and should be rejected as surplusage, and that redundant allegations, and allegations which are in no manner necessary to a description' of an offense, and which are not essential to constitute the offense, and which can ha entirely omitted without a~ecting the charge against the de-tendant, and without detriment to the indictment, are treated us mere surplusage, and may be entirely disregardc~ as part of the indictment. Mayo v. State, 7 Tex. App. 342; Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 384, 17 S. W. 411; McDaniel v. State 32 Tex. Cr. R. 16, 21 S. W. 684, 23 S. W. 989; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R.: 540, 34 S. w. 751; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380; Mathews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.
- "Mr. Branch, in his Texas Criminal Law (sec. 905), lays down the same rule in two separate paragraphs, as follows: ~If not descriptive of that which is legally essential to the validity of the complaint, information, or indictment, unnecessary words or allegations may be rejected as surplusage.' And: `If, eliminating the sur-plusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code, and therefore sufficiently charges the offense'citing many of the decisions last above cited and others."

The decision in Ed~cvards V. State, 160 S. W. 80, cited and relied upon by appellant, is not in point, as a reading of the opinion and comparison with the statute as to each allegation will show. Take the first item therein as an example. The allegation held defective was that the accused was "a v~grant person, in that on said date he was able to work and did not work, and has no property to support him." That allegation must have been made under subdivision "a" or "b" of article 634, P. 0., but omitted nec~ essary requisites under both or either.

Subdivision "a" is:

"Persons known as tramps, wand~ing or strolling about in idleness, who are able to work and have no property to support them."

Subdivision "b" is:

"Persons leading an idle, immoral or profligate life, who have no property to support them, and who are able to work and do not work."

If under "a," it omitted to allege that he was a person known as a tramp, wandering or strolling about in idleness. If under "b," it omitted to allege that he was a person leading an idle, immoral, or profligate life.

The evidence was amply sufficient to sus~ tam the conviction.

The judgment will be affirmed.
      ©sjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TENNEL v. STATE.
    (No. 3868.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    1. Rape <&wkey;27 — Information—Suppiciency.
    An indictment charging that defendant had carnal knowledge of a female under the age of 15 years, not being his wife, was good as an indictment for rape upon a female under the age of consent.
    LEd. Note. — For other cases, see Rape, Cent. Dig. § 31; Dec. Dig. &wkey;27.]
    2. Criminal Law <&wkey;lllE-REViEw — Bill op Exceptions — Sueeicienoy op Evidence.
    Where the charge in a criminal case was not objected to on the trial and before it was read to the jury, as required by the statute, and there were no bills of exception in the record, the sufficiency of the evidence was the only question presented to the Court of Criminal Appeals for review.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <&wkey;> 1114J
    3. Rape &wkey;>51 — Sufficiency op Evidence.
    Evidence, in a prosecution for statutory rape, held sufficient to sustain a conviction.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. <&wkey;51J
    4. Criminal Law <&wkey;114A-PRESUHPTiON on Appeal — Competency op Witness.
    In the absence of a proper bill of exceptions, showing that a girl 5 years of age, herself present and claiming to have been raped, testifying in a prosecution for statutory rape, did not possess sufficient intellect to relate the transaction, or that she did not understand the obligation of an oath, it would be presumed that she was competent to testify.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dee. Dig. &wkey;1144J
    5. Witnesses <&wkey;40 — Competency — Discretion op Trial Court.
    The admission of her testimony was properly within the sound discretion of the trial court.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. &wkey;40.]
    6. Criminal Law <&wkey;365 — Evidence — Res Gestas.
    In a prosecution for rape of prosecutrix, who was 6 years old, in the presence of another girl 5 years old, who was also then and there raped by accused, the testimony of the 5 year old girl as to the rape committed upon her was admissible as a part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Dec. Dig. <S=w365.]
    7. Criminal Law <&wkey;673 — Instructions — Limiting Evidence.
    Such evidence being a part of the res gestae, the court was not called upon to limit it in his charge to the jury.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. &wkey;673.]
    8. Criminal Law <&wkey;1160 — Question op Fact — Suppiciency op Evidence — Review.
    When the jury have determined the issues presented by the evidence under a fair charge and there is sufficient evidence in the record, if believed, to support a conviction and it is approved by the. trial judge, required to set it aside, if not satisfied of the guilt of the accused, it will not be set aside on appeal unless clearly wrong.
    [Ed. Note. — For other .cases, see Criminal Law, Cent. Dig. § 3084; Dee. Dig. ®=>1160.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Henry Tennel was convicted of statutory rape, and he appeals.
    Affirmed.
    John I-I. Crooker, Cr. D5st. Atty., T. J. Harris and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

“This is an appeal from a conviction assessing the death penalty for rape. The indictment is as follows:

“ ‘In the name and by authority of the state of Texas. The grand jury of Harris county, state of Texas, duly organized at the August term, A. D. 1915, of the Criminal District Court of said county, in said court, at said term, do present that Henry Tennel, on the 2d day of September, A. D. 1915, in said county and state, did have carnal knowledge of Wilmay Olaybourn, a female then and there under the age of 15 years, and then and there not being the wife of the said Henry Tennel. Against the peace and dignity of the state.

“ ‘Jno. C. Penn, Foreman of the Grand Jury.’

“This is the' form of indictment for rape upon a female under the age of consent laid down in section 1768 of Branch’s Penal Code, which is now in press, and was so framed as to avoid alleging more than was necessary to be proven, while averring all that was necessary to be proven, under the suggestion and according to the rules of law laid down by this court in Fowler v. State, 148 S. W. 576.

“The charge of the court required the jury to find beyond a reasonable doubt the truth of what was alleged, and the charge of the court was not objected to on the trial and before it was read to the jury, as required by the statute of this state, and there are no bills of exception in the record. The sufficiency of the evidence is the only question presented for review.

“The mother of the child who was raped testified that the little girl was 6 years old (tr. p. 1) and was not married to any one (tr. p. 2), and the child herself testified that she was 6 years old (tr. p. 11), and this was shown without controversy.

“On September 2, 1915, appellant rented a rubber-tired buggy and was driving a sorrel horse. Tr. p. 14. Prosecutrix had gone to the house of a woman named Ella Culver to stay while her mother went up town. Appellant was there and drank some beer, and aft-erwards took prosecutrix and another little girl, who was 5 years old, in his buggy and went down to the bayou with them. Both prosecutrix and the other little girl testify positively and in terms that appellant penetrated their private parts with his male member while down on the bayou. Appellant was seen by other witnesses on the road to the bayou with the little girls driving the rubber-tired buggy. About two hours after appellant had left with the two babies, they came home crying, bleeding, and showing the effects of beating and choking. Prosecutrix was immediately taken to the office of the county physician, and there examined by him. He testifies to facts corroborating their account of what had happened to prosecutrix. No useful purpose would be served by setting out the details of his examination, but it shows (tr. pp. 10, 11) that terrible force was used on her sexual organ, and that she was otherwise mistreated with physical violence. The testimony of prosecutrix shows unusual intelligence for a child of 6 years, and there is nothing in her testimony which is contrary to human experience or inconsistent with the truth. In the absence of a proper bill of exceptions, showing that the child did not possess sufficient intellect to relate the transaction, or that she did not understand the obligation of an oath, it will be presumed that she was competent to testify. Moore v. State, 49 Tex. Cr. R. 449, 96 S. W. 327; Hunger v. State, 57 Tex. Cr. R. 384, 122 S. W. 875. The admission of a child’s evidence is properly within the sound discretion of the trial court. McCormick v. State, 52 Tex. Cr. R. 495, 108 S. W. 669; Zunago v. State, 63 Tex. Cr. R. 58, 138 S. W. 713, Ann. Cas. 1913D, 665; Brown v. State, 176 S. W. 51.

“After appellant had taken the witness stand and testified to being at the house from which the children were taken and had denied that he took them or raped the prosecutrix, the state, on rebuttal, introduced the other little girl, who testified without objection to the rape on her and on prosecutrix, corroborating the testimony of prosecutrix in every substantial detail, and the testimony of the two little children was given in such a manner as to leave no doubt of its truth, and, when taken in connection with the other testimony, there is no room for doubt that appellant was guilty of the terrible outrage upon these babies. The testimony of the younger child was admissible, as it was a part of the res gestee, and, being a part of the res gestee, the court was not called on to limit it in the charge to the jury.

“As was said in the recent case of Edwards v. State, 181 S. W. 195, decided by this court on December 1, 1915: ‘When the jury have solved the issues presented in the testimony under a fair and proper charge of the court, and there is sufficient evidence in the record, if believed, to support the verdict of guilty, and that verdict is approved by the trial judge whose duty it is to set the conviction aside if not satisfied of the guilt of the accused, the verdict will not be set aside (on the facts) on appeal unless clearly wrong.’

“Nothing whatever is shown by this record that reflects upon the fairness of the trial, and as far as human testimony given in human tribunals can demonstrate the guilt of the accused, this has been done. The learned judge who presided over the trial and who charged the jury fully and fairly has approved the verdict, the testimony amply warrants the verdict of the jury, and indeed from this record it is improbable that any honest jury would or should have found a different verdict.”

We have adopted the above brief as the • opinion of the court, as it so fully discusses the case. There are no bills of exception in the record; consequently the only question we could review would be the sufficiency of the evidence to sustain the verdict; and, if the evidence in any case of rape would authorize the infliction of the death penalty, we think this one of those cases.

The judgment is affirmed.
      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. PRENDERGAST, P. J. HARPER, J.

text:
    WEBER v. STATE.
    (No. 3848.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.
    State’s Rehearing Denied Jan. 12, 1916.)
    1. Criminal Law <&wkey;956 — New Trial — Motion — Sufficiency.
    In a prosecution for cattle theft, where defendant’s motion for new trial on the ground that two members of the jury, after retirement and before reaching verdict, had stated that defendant had served a term in the penitentiary, etc., was supported by affidavit giving the name of the informant of defendant’s counsel, such affidavit was sufficient to raise the issue whether the verdict had been invalidated.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <&wkey;> 956.]
    2. Criminal Law <&wkey;925% — New Trial — Grounds — Misconduct of Jury.
    Where, after retirement, and before reaching their verdict, two members of the jury trying defendant for cattle theft stated that he had served a term in the penitentiary, and was a member of a family that died with their boots on, such misconduct was ground for new trial; the matter not having been before the jury in evidence, and being of very material character.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. <&wkey;> 925%.]
    Prendergast, P. J., dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Sam Weber was convicted of cattle theft, and he appeals.
    Judgment reversed, and cause remanded.
    H. E. Kahn, of Houston, for appellant. John H. Crooker, Crim. 'Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

There is but one question' necessary to be discussed in the light of this record. After the jury retired the bill of exceptions recites they received testimony other ’ than that introduced before the jury. This was, of course, in the absence of the defendant, because it was in the jury room. The substance of this is: In their retirement, and before arriving at a verdict, the jury discussed the fact that appellant had been in the penitentiary at a previous time for cattle theft; that he was a bad man and a thief; that he was a member of the Weber family; and that all the Webers died with their boots on. These statements were made prior to the time the jury arrived at their verdict. It is further stated in the bill that no testimony was introduced on the trial showing or tending to show the character of the defendant, nor was there any evidence introduced showing or tending to show that the defendant had been in the penitentiary at a previous time for cattle theft, nor was there any testimony showing or tending to show that the defendant was a bad man and a thief, or to show to what family the defendant belonged, or that he belonged to the Weber family, or that the Webers had died with their boots on. It is further shown in the bill that by all of the jurors, including the foreman, appellant could have shown and would have shown that immediately after the retirement of the jury, in the absence of the defendant, that two of the jurors' remarked and stated in the presence of all the jury that defendant had been in the penitentiary at a previous time for cattle theft, and that he was a bad man and a thief, and that he was a member of the Weber family, and that all the Webers died with their boots on. The defendant’s counsel at this time offered to testify that he was informed by W. W. Wander, the son-in-law of one of the jurors, of the same facts set up in the motion for new trial and narrated in this bill, all of which was excluded. The bill further narrates the fact that' all the witnesses who testified on the trial were Williams, A. Blau, and Geo. Blau. The Blaus knew nothing of the facts of the theft. One of them was owner of the cattle. The other one testified that the cattle were there the day before they were alleged to have been stolen; Williams- being the witness relied upon by the state. The testimony of Williams raise'd the issue as to whether he was an accomplice, and the court submitted that ipsue to the jury. This motion for new trial is sworn to by the defendant. The testimony of the jurors was rejected. It is further shown that immediately after the •reading of the motion defendant’s counsel told the court he desired to place the foreman of the jury which convicted defendant and all the other members upon the witness stand, setting out the names of each of the 12 jurors. The court sustained the state’s demurrer to the amended motion for new trial. It is further alleged, had he been permitted to introduce the jurors, he could have shown by them as he had stated and the facts mentioned in his motion and bill of exceptions. -The court .qualified this bill, and. said the court sustained the motion of the state to strike out the said second ground of defendant’s motion for new trial for the reasons urged by the state in its motion, and for the further reason that the ground of the motion was subject to general demurrer and presented no issue and was not such an affidavit of any ground of misconduct as would justify or authorize the court to permit the jurors to be sworn and interrogated as to a verdict which the court thinks was justified and demanded by the testimony adduced on the trial. The state’s motion to strike out alleges that the motion for new trial was insufficient to require an answer and formed no issue, and too vague and indefinite, and further asks that it be stricken out, -“as the same appears 5n its face to be what might properly be termed ‘a fishing expedition’ to determine some imaginary ground on which to secure a new trial, and which, if permitted to be done on motion for. new trial, would lead in each case, without any real grounds for a new trial, to an inquiry into the basis or reasons why the jury in each case returned a verdict of guilty.”

We are of opinion that the contention of the state should not have been sustained. The affidavit is sufficient to raise the issue under Hicks v. State, 171 S. W. 755, and Calyon v. State, 174 S. W. 591. These jurors, under the bill of exceptions and motion for new trial, would have stated that these matters were discussed, and, if they were, there is no question of the fact that the motion for new trial should have been awarded. One of the most thoroughly considered cases in reference to this character of conduct by the jury will be found in Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456, in an opinion by Judge Hurt. The testimony was of a material nature. It affected the defendant’s character in various respects. This matter had not been before the jury and was of a very material character.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

I dissent. I- think this case comes clearly within the cases of Calyon v. State, 174 S. W. R. 591, and Hicks v. State, 171 S. W. 755, and the lower court’s action was correct. This case should be affirmed, and not reversed. The bill as a whole shows the court sustained the state’s demurrer to appellant’s motion, and it was after this he offered to introduce the oral evidence, and at a time when he had no pleading to base any evidence upon.

HARPER, J.

I concur in the reversal of the case; bill No. 8 showing the following facts:

“Because the jury received other evidence against defendant of material character after said jury had retired to consider of their verdict and in the absence of defendant, in this, that said jury discussed the'character of the defendant, and it was stated in the jury room, so defendant is informed and believes, and upon such information and belief alleges, that defendant had been in the penitentiary at a previous time for cattle theft, that he was a bad man and a thief, that he was a member of the Weber family, and that all the Webers died with their boots on, all of which statements so made by the jury were made prior to the time that the jury arrived at its verdict, and defendant shows that no testimony was introduced on the trial of this cause showing or tending to show the character of this defendant, nor was there any evidence introduced in this cause showing or tending to show that the defendant had been in the penitentiary at a previous time for cattle theft, nor was there any testimony in the record showing or tending to show that the defendant was a bad man and a thief, nor was there any testimony introduced showing or tending to show to what family the defendant belonged, and no testimony that he belonged to the Weber family, and that all of the Webers died with ■their boots on; and defendant prays that your honor will hear evidence upon this ground of his motion, so that the matters of fact so heard be made a part of this record in case this his motion for a new trial be overruled. There being no testimony upon the trial of this cause showing or tending to show the character of this defendant, nor was there any evidence introduced on the trial in this cause showing or tending to show that defendant had been in the penitentiary at a previous time for cattle theft, nor was there any testimony in the record showing or tending to show that the defendant was a bad man and a thief, nor was there any testimony introduced showing or tending to show what family the defendant belonged to, and that he belonged to the Weber family, and that all the Webers died with their boots on, and immediately after after the reading of said motion defendant’s counsel told the court that he desired to place the foreman of the jury that convicted defendant, and also all the other members of said jury that so convicted defendant, upon the witness stand, to wit, O. J. Brown, S. A. Byer, O. S. Miller, Louis Blecker, H. Butcher, Joe Baumart, J. B. Kendall, Eugene Massa, A. Anderson, L. A. Hilderbrandt, and B. A. Brocker, which said request the court declined, the court having sustained a demurrer urged by the state in its answer to defendant’s said amended motion for a new trial, a copy of which answer of the state is attached hereto and made a part hereof. By said witnesses, to wit, the foreman and all the other 11 jurors, the defendant would have shown that immediately after the retire•ment of the jury to their room, and in the absence of the defendant, that two of said jurors remarked and stated in the presence of all the jury that the defendant had been in the penitentiary at a previous time for cattle theft, and that he was a bad man and a thief, and that he was a member of the Weber family, and that all the Webers died with their boots on, and thereupon defendant’s counsel offered to testify that he was informed by W. W. Wander, the son-in-law of one of the jurors, the same facts as set up in defendant’s second ground of his amended motion for a new trial; that said juror, the father-in-law of said Wander, made said statement to said Wander after the trial of said case.”

I do not think these facts bring the case within the rule announced in the Calyon nor Hicks Cases.- In the Hicks Case no affidavit was made to the motion for new trial. In thjs the motion was sworn to. In the Calyon Case the motion was general, that they had heard, etc., and did not give the name of informant. In this case the name of informant is given, and witness offers to swear to such fact or testify to it.
      <@x»For other oases see same topic and.KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    PANEL v. STATE.
    (No. 3836.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 12, 1916.)
    Ceiminax. Law <&wkey;1117 — Appeal—Record— Statement op Facts — Showing op Venue.
    Where in the statement of facts on appeal from a conviction the line showing that the venue had been proved was erased by lead pencil marks, and the county attorney filed affidavit that the erasure had been made by some one after the signing of the statement by the trial judge (an attorney for defendant filing an affidavit stating directly the contrary), while the judge himself filed an affidavit that there was no erasure in the statement when he approved it, one by the court stenographer to the same effect also being filed, in which the latter swore to the testimony of a witness showing the venue, judgment of conviction will be affirmed on the ground that the statement of facts, when signed, approved, and filed, showed that the venue had been proven.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2925; Dec. Dig. <&wkey;>1117.]
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Walter Panel was convicted of violating the local option law, and he appeals.
    Affirmed.
    H. M. Wade, of Rockwall, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at one year’s confinement in the state penitentiary. The indictment is in language frequently approved by this court, and the act of the Thirty-Third Legislature does not deprive the district ’ court of the the Fourteenth judicial district of criminal jurisdiction in Rockwall county.

The only serious question in the case is the one that questions the fact that venue was proven. The statement of facts came to this court with the lines showing that venue was proven erased by lead pencil marks. As the statement of facts was signed l)y the attorneys with pen and ink, this pencil erasure in the body of the statement of facts attracted the attention of the Assistant Attorney General, and he wrote the county attorney of Rockwall county in regard to such erasure. The county attorney filed an affidavit stating that the erasure had been made by some one subsequent to the time the same was signed, approved by the trial judge, and filed, attaching to such affidavit the duplicate statement of facts showing no such erasure. One of the attorneys for appellant in reply to the affidavit of the county attorney also filed an affidavit, in which he swears the erasure was made before the statement of facts was signed by the attorneys and approved by the judge. Having this direct conflict in the affidavits of the attorney for 'the state and attorney for defendant, this court directed that the record be forwarded to Hon. Kenneth Eoree, judge of said court, with the request that he state whether or not such erasure had been made prior to the time he approved the statement of facts. He has filed an answer, containing the affidavit of himself and the court stenographer, in which Judge Eoree states there was no erasure in the statement ■ of facts when he approved same. No one has any right to erase anything in a statement of facts after the trial judge has approved same, and we must and will consider the statement of facts as approved by. the trial court, or strike from the record the statement of facts which he says has beeh mutilated since he signed it. Not only does Judge Eoree send his affidavit, but he also has the stenographer transcribe and swear to the testimony of the witness Joe Bullock, in question and answer' form, and it shows that the following question was propounded to the witness Bullock: “What county, town, or state? A. In Rockwall county, at Royse City.” It is thus made manifest that venue was proven on the trial of the case, and,' while we, could not and would not permit a statement of facts to be amended nor altered after being signed, approved, and filed, yet we have authority ■(where a statement of facts shows erasures) to inquire into and find out whether or not such erasures were made prior to or subsequent to the time same was approved and fiied.

Under the affidavits of' Judge Eoree, Mr. Nesmith, and County Attorney Billingsley, we hold that the statement of facts, when signed, approved, and filed, showed that venue had been proven, and the judgment is affirmed.
      <©=x>For other eases see same topic -ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRBNDERGAST, P. J.

text:
    SATTERWHITE v. STATE.
    (No. 3831.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Criminal Law @==1150 — Appeal—Discretion of Court — Change of Venue.
    Where, in a prosecution for homicide, on defendant’s motion for change of venue, the court saw and heard the witnesses testify, knew them personally, and where the court himself presided at both trials of the ease, and had varied experience as a trial judge, the court on appeal could not substitute its judgment for his in refusing the change in the absence of patent abuse of discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3044; Dec. Dig. @=31150.]
    2. Criminal Law @=3594 — Trial—Continuance.
    Where defendant moved for a continuance on account of absence of three witnesses, but the witnesses, were afterwards procured on subpoena by either the defendant or the state, though they did not testify, and the defendant 1 claimed that he had made a mistake in the name of one of the witnesses desired, it was not error to refuse the continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dee. Dig. @=3594.]
    3. Criminal Law @=3958 — New Trial — Motion — Requisites.
    Where the motion of defendant for a new trial did not contain the affidavits of any of the claimed witnesses on account of whose absence he had moved for a continuance which was denied, it was not error to overrule the motion.
    [Ed. ■ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. @=> 958.]
    4. Criminal Law @=31166% — Appeal — Harmless Error — Ruling as to Qualification of Jurors.
    That the court refused to sustain a challenge for cause to two jurors is no ground for reversal where neither of the jurors served on the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. @=3 1166%.]
    5. Criminal Law @=3899 — Conduct of Trial —Evidence. ■
    Where certain evidence later shown to be inadmissible was sought to be introduced as to a statement made by defendant as to his relations with a woman, and the judge ordered the jury to retire pending a discussion on the admissibility of the evidence, the discussion did not present reversible error, though the judge before retiring the jury said that he wished to hear what the witness had to say about the relations, where" the judge subsequently instructed the jury specifically to disregard anything said in that respect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2122; Dec. Dig. @=>899.]
    6. Witnesses @==287 — Cross-Examination— Redirect Examination.
    In a prosecution for homicide where the defendant, on cross-examination, had. introduced testimony that one "of the state’s witnesses had complained against him at the place at which he was working, it was not error to permit the state, pn redirect examination, to elicit from the witness the reasons for his complaint.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. @=» 287.)
    7. Criminal Law @=31169 — Appeal—Admission of Evidence — Harmless Error.
    Where the state was permitted to introduce evidence that the defendant had suggested to witness that they rob a bank, the error in admitting such testimony, if it was inadmissible, was cured by subsequent instruction to disregard such evidence for any purpose whatever.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. @=31169.]
    8. Witnesses @=374^-Impeachment.
    It was not error to refuse defendant permission to prove that the wife of one of the state’s witnesses had sought to employ defendant’s attorney to bring suit for divorce against the witness, such testimony being inadmissible to impeach the witness or for any other purpose.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. @=374.j
    9. Witnesses @=3319 — Impeachment.
    It is not error to permit impeachment of witnesses for defendant in a prosecution for murder upon proper predicates.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1087-1093; Dec. Dig. @=>319.]

      10. Witnesses i@=»410 — Impeachment — Cob-BOBORATION.
    Where the defendant attempted to impeach one of the state’s -witnesses it was not error to permit the state to support its witness by other testimony.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. <@=>410.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Jack Satterwkite was convicted of murder, and be appeals.
    Affirmed.
    See, also, ITT S. W. 959.
    Lee Wallace and H. 0. Geddie, both of Kerrville, for appellant. W. G. Garrett, Co. Atty., and Gilbert C. Storms, both of Kerr-ville, and C. 0. McDonald, Asst. Atty. Gen., for the State.
   PRBNDERGAST, P. J.

Appellant was convicted of murder and bis punishment assessed at 45 years in the penitentiary. This is the second appeal in this case. The first is reported in ITT S. W. 959. This last trial was had strictly in conformity with the said former opinion, and no question arises on this appeal that was held error in that. On the former trial his punishment was assessed at 25 years in the penitentiary. Erom the opinion on the other appeal, the general features of the case can be had. On this trial the state introduced much more incriminating testimony than is stated in the opinion on the other appeal. It strengthened its case on practically all of the material points. It proved many other incriminating facts and circumstances. Upon the whole, while the evidence was circumstantial, the facts proved were amply sufficient to authorize and require the jury to believe beyond a reasonable doubt, and “to a moral certainty” as the judge required in his charge, that the appellant, and no other, killed the deceased. We have carefully, more than once, read and studied the evidence and discussed it, and are well satisfied that it justifies the jury’s verdict, and we would not be authorized, under the law, to set the verdict aside. We can see no useful purpose to be served by a recitation of the testimony at this time. It is quite voluminous.

Appellant made a motion to change the venue on both grounds authorized by the statute (0. G. P. art. 628.) The state duly controverted this. We have carefully read the evidence heard on this motion. At most, we think the evidence by the appellant’s side is slight tending to show any combination by influential persons. On the other hand, we think the testimony by the state, and all of it taken together, was amply sufficient to affirmatively prove that there was no such combination by influential persons, as alleged by him. On the other ground, some of the testimony introduced by appellant tends to show that there was such prejudice against him as might tend to show that he could not obtain an impartial trial. On the other hand, that introduced by the state would show the contrary, and, taken as a whole, we think it was amply sufficient to justify the trial judge to hold, as he did, that the appellant was not entitled to a change of venue on that or the other ground either. This court has uniformly held in many cases, as stated in Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858:

“Of necessity in respect to a question of this kind much ought to be left to the discretion and sound judgment of the court trying the case, and in no ease should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331. See, also, Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Bohannon v. State, 14 Tex. App. 271; Martin v. State, 21 Tex. App. 1 [17 S. W. 430]; Connell v. State [45 Tex. Cr. R. 142] 75 S. W. 512; Reeves v. State [47 Tex. Cr. R. 340] 83 S. W. 803; Earles v. State [47 Tex. Cr. R. 559] 85 S. W. 1; Adams v. State [48 Tex. Cr. R. 452] 93 S. W. 116.”

The Tubb Case has many times, and even very recently, been cited and approved on this point. Mooney v. State, 176 S. W. 53, and other cases. In this case, after studying all the evidence introduced on the issue of the change of venue, we think the learned trial judge did not abuse the discretion and his sound judgment which the law confides to him in such matters. He saw and heard all of the witnesses testify on this issue. He doubtless knew all of them personally. He had long, extensive, and varied experience as a trial judge. 1-Ie presided at both trials of this case. The appellant introduced him in his behalf and had him testify for him on this trial. We cannot substitute our judgment and discretion for his under the circumstances and cannot do otherwise than hold that his action in overruling appellant’s application for a change of venue was correct: We had occasion recently in the case of Myers v. State, 177 S. W. 1169, to discuss and decide the question raised in that case, which was very much like this case, and there held that the appellant therein was not entitled to a change of venue. The opinion in that case specially applies to this.

Appellant made a motion for a continuance on account of the absence of three witnesses, Charley Roberts, Doug. Nox, and Eli McDonald. The offense charged was committed on or about July 11, 1914. About six months thereafter said first trial occurred. This trial began July 12, 1915. A subpoena for the witnesses on account of whose absence said continuance was sought was not procured or issued until July Tth, just four days before the trial was to be had. The court in approving appellant’s bill of exception on this ground did so with this explanation:

■ “That before the trial of the case was eonelud- . ed, and before the state had commenced with its evidence, Charley Roberts was duly subpoenaed, attended court, and was sworn in as a witness and placed under the rule, but he was not put on the stand by defendant’s counsel, for the reason as stated by them that they had made a mistake as to the name, and that it was Oliver or Elmer Roberts that they should have named in their application for process instead of Charley Roberts. That as to the witnesses Eli McDonald and Doug. Nox the record shows that defendant by attorney had process issue to Menard .county for them on July 7, 1915, for the first time, and that the sheriff of Menard county made return of said subpoena July 10, 1915, which was filed in this court July 13, 1915, his return showing that Doug. Nox, was served on July 10, 1915, but that Eli McDonald was not served, and ‘Eli McDonald was at Ingram, Kerr county.’ That the state thereupon had process issue for said McDonald to Kerr county, and he was served, attended as a witness, and was sworn before evidence was concluded, but was not used by defendant, his attorneys saying that he was not the McDonald wanted. The Gaston Pape named was at court during the trial but not called as a witness.”

No attachment was issued for the witness Nox. In his motion he alleged that he expected to prove by Nox that, after the return of Gaston Pape from Kerrville, where he was, and for a short time before had been, and prior to the murder alleged in this case, he had plenty of money and spent same freely; and that his testimony was material, for the reason that all of said witnesses will testify, and the facts will show, that said Pape had no employment and no source of income, and that he did not earn a living by labor or legitimate means known by said witnesses, who were well acquainted with him.

Appellant’s motion for a new trial was not hied until July 19th, and was not acted on until July 24, 1915. Pie did not attach the affidavits of any of his claimed absent witnesses, or any other, tending in any way to support his motion for a continuance. The court did not err in overruling his motion for a continuance and refusing him a new trial on that ground. Stacy v. State, 177 S. W. 115.

Appellant has two bills complaining that the court erroneously refused to sustain his challenge for cause to two of the special veniremen. Talcing what the bill shows of their voir dire examination, the court’s action was correct, as their testimony as a whole showed that they were not disqualified, but qualified, jurors; but, even if the court had erred on this question, each bill shows that ■ neither of these jurors served on the trial. Nor does either show that any other disqualified juror served. Oats v. State, 149 S. W. 1194.

Appellant has a bill complaining that, while the state’s witness Will Reno was testifying, the district attorney asked him whether or not the appellant ever told him anything about any relations existing between him and Miss Carrie Butler. He objected to this for various reasons. A discussion then occurred between the judge and ' district attorney as to the purpose of such testimony. The appellant requested the jury to be retired. The court thereupon remarked in the presence and hearing of the jury, in substance, directing the sheriff to retire the jury, that he wanted to hear what this witness had got to say about the relations existing between appellant and Miss Butler. He objected to what the court said because it was prejudicial to him. After the jury retired, the witness answered that appellant had said nothing to him about any relations between appellant and Miss Butler. This is the substance in full of the bill. The court qualifies it by stating that after the jury returned into court, they were fully instructed by the court not to consider said remarks for any purpose if made by the court in their hearing. We think this bill shows no reversible error. The remark of the court, if at all derogatory to the appellant, was cured by his specific instructions to the jury that they could not consider it for any purpose. The court committed no error in admitting the deceased’s watch in evidence, as held in the opinion on the first appeal of this case.

On cross-examination of the state’s witness John Williams appellant asked him if he had made complaint to Ollsworth, the owner of the ice and light plant where appellant worked, about appellant, and had him to testify that he did. The court committed no error in permitting the state to ask him on redirect examination what was his reason for making complaint to said Ollsworth and his answer that his reason was that he found everything about the plant half done — -nothing cleaned up. This was proper redirect examination to bring out the balance of what, appellant had elicited in part.

The state was permitted to ask its witness Jack Polly, and have him answer in substance, that appellant had suggested to him and Tom Peterson to rob Schreiner’s bank, and that he told him, if he was blue steel, they could make a better living than they could working. The court in qualifying the bill on this subject did so as follows:

“With the explanation that as shown the state claimed that the evidence was to show motive. After the witness answered as stated, he also said that ‘Satterwhite might have been joking’ or ‘he did not know if Satterwhite was joking.’ - Upon reflection thereafterwards I became convinced that this evidence was not admissible and withdrew the same from the jury, and told them that they should not and must not consider the same for any purpose whatever.”

We are not so sure but that this evidence was admissible under the circumstances of this case, but whether it was or not the judge cured whatever error was committed by withdrawing it and charging the jury as he did. See Miller v. State, 184 S. W. —, this day decided, and authorities therein cited.

The court committed no error in refusing to permit the appellant to prove that Polly’s wife sought to employ one of his attorneys to bring suit for divorce for her against Polly. This had nothing to do with this ease and was not admissible for the purpose of impeaching, or for any other purpose.

Appellant had M. N. Baylor to give material testimony for him. The state laid the proper predicates to impeach him on several points and did so afterwards. The bills as qualified showed that the proper predicate was laid and that the testimony was clearly admissible in proper impeachment. Branch’s Crim. Law, §§ 871, 872.

Neither did the court err in permitting the state to support its witness Reinhart, whom appellant had attempted to discredit, and impeach by showing that he had made a different and additional, statement on this trial than he had on the former trial. Branch’s Crim. Law, § 874. Appellant has two or three other bills of exception, which we have duly considered. They are not of sufficient importance to state or discuss. None of them present any error.

The judgment is affirmed,
      . @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      iga^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BURGESS v. STATE.
    (No. 3755.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    On Motion for Rehearing, Jan. 12, 1916.)
    1. Criminal Law @=>S29— Triai>-Instuuo-TIO NS — INSA NITY.
    In a prosecution for homicide, where there was a bare suggestion that insanity might have resulted from the drinking habits of accused, the refusal of a requested charge that, if accused had become insane from the long-continued and recent use of intoxicants, he should be acquitted, was not error, where the court charged that if accused was insane at the time of the killing he should be acquitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=3829.]
    2. Criminal Law @=>404 — Evidence — Demonstrative Evidence.
    In a prosecution for homicide, where even the doctors disagreed as to whether the bullets entered from the front or back of deceased’s body, the bloody clothing worn by deceased is admissible in evidence to show the course of the balls.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. @=>404.]
    3. Homicide @=209 — Evidence-—Dying Declarations.
    Under White’s Ann. Code Cr. Proc. art. 808, declaring that a dying declaration, voluntarily made at a time when the declarant had no hope of recovery, a dying declaration which deceased was too weak to sign, but she said was correct, is admissible, though her name was signed by another.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 441; Dec. Dig. @=209.]
    4. Criminal Law @=939 — New Trial — Newly Discovered Evidence.
    In a prosecution for homicide, where accused set up insanity produced by long-continued drinking, alleged newly discovered evidence that accused used drugs and liquors to excess, coupled with medical testimony of the effect of such practices, does not warrant a new trial, for accused must have at all times known of his habits, and the evidence, had diligence been used, could have been produced at trial.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. @=>
    5. Criminal Law @=1124 — New Trial — Overrulin® Motion.
    The act of court in overruling the motion for new trial on account of newly discovered evidence cannot be reviewed, where the evidence was heard but was not incorporated in the record; only the affidavits being included.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. @=1124.]
    On Motion for Rehearing.
    6. Criminal Law @=>404 —' Evidence — Demonstrative Evidence.
    In a prosecution for homicide, where the only witness to the killing besides accused, who did not testify, was discredited by proof of her use of morphine, the bloody garments worn by' deceased may be received to show deceased’s position at the time of the shooting.
    [Ed. Note. — For other eases, see Criminal Law,'Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. @=>404.]
    7. Criminal Law @=286 — Plea oe Insanity —E'EPECT.
    A mere plea of insanity does not show that accused was mentally unbalanced or unable to-produce evidence, which, had he been sane, would have been known to him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 657, 658, 662, 664, 665; Dee. Dig. @s=2S6.]
    8. Homicide @=>237 — Evidence—Insanity.
    In a prosecution for homicide, evidence held insufficient to show accused’s temporary insanity from the excessive use of intoxicants and drugs.
    [Ed. Note. — For other cases, see Homicide,. Cent. Dig. § 500; Dee. Dig. @=>237.]
    9. Criminal Law @=>311, 331 — Insanity — Presumption.
    There is a presumption in favor of sanity, and an accused who relies on insanity has the burden of establishing it by the preponderance of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. @= 311, 331.]
    10. Homicide @=>2S — Deeenses — Intoxication.
    Under the direct provision of Vernon’s Ann. Pen. Code 1916, art. 41, voluntary intoxication is no defense to prosecution for homicide or other crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 44-46, 133; Dec. Dig. @=>28.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    R. H. Burgess was convicted of murder, the death penalty being assessed, and he appeals.
    Affirmed.
    C. W. Howth, Crockett Williams, J. W. O’Neal, and Samuel C. Lipscomb, all of Beaumont, for appellant. C. C. McDonald, Asst. Atty. .Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder of his wife, and assessed the death penalty.

But a brief statement of the case is necessary. The material facts were proven by un-controverted testimony of various witnesses.

Appellant was a drinking man, and had been for some years. Iiis business was that of a traveling tailor, taking orders for men’s ready-made clothing. lie became acquainted with his wife while boarding with her parents, and after only a short acquaintance they, married about six years before he killed her. After marrying, they left her parents’ and lived from time to time at first one place and then another. They kept house during their whole married life but a very short time. It seems, because of his traveling, they boarded generally when living together. Because of his cruel treatment of his wife, she repeatedly abandoned him and went to and stayed with her parents. She had one child, a little girl, born just nine months after their marriage. She was about five years of age at the time her mother was killed. At one time his wife (deceased) procured a divorce from him, evidently because of his cruel treatment of her. Repeatedly, when she would abandon him because of his treatment of her, he would follow her up and by promises of future good treatment would induce her to return to and live with him for a while. And he repeatedly, after she had procured the divorce from him, besought her to marry him again, and by his promises induced her to remarry him, which she did about the 1st of October prior to the time he killed her the latter part of the following January. Soon after their remarriage, his cruel treatment of her was renewed. It became so unbearable that she again abandoned him and brought a second suit against him for divorce. This was pending at the time he killed her. After this separation, he again sought a reconciliation with her from time to time, and for that purpose, it seems, he repeatedly sought to meet her at various places, and perhaps succeeded in one or two instances; but she persistently refused to again live with him, and she and her little daughter lived with her parents at the time he killed her. Her father at the time was a paralytic, confined to his bed, and utterly helpless. The deceased was in the habit of arising early in the morning and preparing an early breakfast for her brother, so that he could early go to his work, and after he would complete his breakfast she would then prepare breakfast for the others. She was killed early one morning.

Her mother, Mrs. W. T. Rigsby, testified that she had more than one time heard him threaten to kill his wife. She testified:

“That be threatened to kill her in October, the first of October, 1914, upstairs in their room. * * * That Mr. Burgess said: T could kick you half to death. I would love to kick you to death, and then hang for it. I don’t mind being hung. What is death to me? I don’t care.’ That that was the last time she heard him threaten to take her life before the morning he killed her, because that was the last time that he was in the house.”

She further testified:

“That her daughter’s (deceased’s) bedroom adjoined her bedroom on one side, and the dining room just around the corner. That her attention was attracted, on the morning of the killing by hearing Mr. Burgess’s voice muttering, and her daughter begging him not to kill her. That she could tell that her daughter was in the kitchen, and she said: ‘Oh, Mr. Burgess, don’t do that; don’t shoot me; please don’t kill me.’ That, when she heard that, she opened the door leading fromi that room to the dining room and saw him. * * * That when she opened the door she saw Mr. R. H. Burgess and her daughter. That her daughter was nearer to her, and was just coming from the kitchen to the dining room backing up, and Burgess was following her. ♦ * That he had a pistol in his hand and was pointing it at May Burgess (deceased). That, when she opened the door, she said: ‘Oh! My Lord! what is the matter?’ And that Burgess replied, ‘It’s me.’ That she saw the first shot, and that her daughter did not have her back to him then, but was facing him. That the first shot struck her daughter somewhere in the bowels. That, when the first shot was fired, May Burgess did not have hold of anything. That, when she was shot the first time, she begged him after that and kept trying to go to her father’s room. That it was about 1% or 2 yards from the place where she was shot the first time to the place where she was shot the second time, and it was about 2 steps further to where she was shot the third time. That at the time her daughter received the third shot she had her back to him (appellant) and was trying to get to her father’s door, and was right at it. That before she was shot the third time she said: ‘Oh! Mr. Burgess, you have killed me. Don’t shoot me any more. Please don’t kill me for my baby’s sake.’ That Burgess said: ‘No, you are not killed. I will kill you’ — and laughed, and then shot her again in the back.”

She further testified that just after shooting his wife appellant left, went out the kitchen door, around the house, out into the street, going away from the scene. That at once after appellant left her daughter (deceased) said to her: “Oh, Mamma! Mr. Burgess has killed me. Pray for me. I want you and papa to pray for me.” And she said: “Oh, Papa! I know you would help me if you could.” And she further testified that deceased then told her that the wind was blowing, and she (deceased) closed the door, and she turned to put up her dishes, and he (appellant) opened the door; that she turned around, and he had his hand behind him, and he said, “You won’t live with me?” that she said: “I have tried so many times, and you have promised me if I would try you one more time you would (not) treat me so cruelly, you would not worry me no more, and you promised you would pay for my divorce that she said: “Don’t do that, Mr. Burgess,” and he commenced pointing a pistol at her, saying the second time, “You won’t live with me?” and she said, “No, I cannot live with you.”

At most, the evidence, without reciting it, barely suggested that appellant, at the time of the killing, possibly might have been insane from the long use of intoxicating liquor, but there was no positive testimony that he was insane from that cause, or any other, at the time he Tailed his wife. The bare suggestion of insanity might be inferred solely from the fact that he had been a drinking man and a few isolated acts of his occurring long before the killing. However, the court charged in his favor on insanity in a correct charge, telling the jury in effect that, if they believed from the evidence he was insane at the time of the killing, to acquit him, and state in their verdict that they did so on that ground. No exception was taken to the court’s charge. Appellant requested one special charge to the effect that, if at the time of committing the offense he had become insane from the long-continued and recent use of intoxicating liquor, or from some other cause, to acquit him. We think the court committed no error in refusing this charge in view of the charge of the court. For by the court’s charge they were plainly told that if they believed he was insane to acquit him, which would embrace insanity for any cause whatsoever. No doubt, under the court’s charge, if the jury had believed that he was insane from the use of intoxicating liquor or from any other cause, they would unquestionably have acquitted him.

Appellant’s next complaint is to the action of the court in permitting the bloody clothes of the deceased to be exhibited before the jury. Dr. Gober was the first witness for the state, and he testified to the location of the wounds upon the body of the deceased, and for that purpose he alone was permitted to adjust deceased’s garments to his body so as to show the exact location of the wounds, and the court so states in his qualification of appellant’s bill, and further that it was admitted for that purpose. There is no intimation in the bill, or otherwise in the record herein, that the bloody garments were made use of by the state in any argument to the jury whatever, or otherwise than the mere fact, as stated by the court, of identifying thereby the wounds inflicted by appellant upon the deceased. Even the doctors themselves differed as to whether some of the wounds entered from the front or rear of the body. From the state’s viewpoint, the clothes were admissible, and we think, under the authorities, no error is presented on this question that would authorize this court to reverse the case. Branch’s Crim. Law, § 436.

In his next bill, he claims the court erred in admitting the dying declaration of the deceased on two grounds: (1) Because it was not signed, nor did it purport to be signed, by the deceased; (2) that it was not voluntary, but made in response to solicitations propounded to her. We have carefully considered the evidence on this point, and, in our opinion, the proof is clear, forcible, and amply sufficient under the statute (article 80S, C. O. P.) to not only authorize, but to require, the admission of said statement in evidence. See Judge White’s sections under said statute for a collation of some of the authorities. The judge in his qualification to this bill states that the witness Syn-nott testified:

“The deceased was in a weakened condition, and that he signed her name to the written statement, and she touched the pen. The written statement, which is a part of the record, speaks for itself.”

This statement is nowhere in the record— either bill or statement of facts. The testimony of Synnott shows that he read the written statement over to the deceased twice, and that in effect she said it was correct, and he says that she was too weak, he thought, and in a dying condition, so that she was unable to write her whole name, and that he had her to touch the pen while he wrote it. His testimony and that of all the other witnesses on the subject, without question, we think, disproves the other ground of the bill.

The only other question is appellant claims he was entitled to a new trial because of newly discovered testimony, and he attaches the affidavit of some persons, which he claims is sufficient to show that.

The record shows that he killed deceased on January 27, 1915, and was arrested therefor immediately afterwards. The grand jury indicted him February 12, 1915. The case was not tried until May 1st thereafter. The record shows that one of his brothers attended the trial as a witness but did not testify. One affidavit of claimed newly discovered evidence is that of Woods Anderson, which is solely to the effect that he had known appellant for four years while he resided in Clifton and Hieo, Tex., and that, while he resided in those places, he was addicted to the excessive use of intoxicating liquor. This certainly could not be .claimed to be newly discovered evidence. If true, appellant unquestionably knew it. Besides, the evidence as a whole shows that he was a drinking man, and that he got on sprees. The next affidavit is that of Dean Hunt. The record shows that Dean Hunt was a witness on this trial and testified therein. His affidavit of claimed newly discovered evidence is solely to the effect that on each occasion when he saw appellant take some kind of drugs that it was in the form of a little white powder, and immediately after taking it he would fall asleep in his chair, and on one occasion fell asleep on a table in the shop where he was working. That he did not know the name of the drug, but reaches his conclusion that it was a strong narcotic from its appearance and its immediate effect. His sole testimony on the trial on this point was that about a year before the homicide, when talking to appellant one day, appellant turned away from him, poured some white powder in his hand, and took it. He did not know what the powder was. He did not describe what effect it had, nor did he tell anything else that he-now claims to disclose in his affidavit. We cannot see Ilow it is possible, if any or all of this is true, that appellant did not know it at and before his trial, and that Dean knew this, and that Dean knew what he swore in this affidavit before and at the time he testified. He had several witnesses from, the location fixed by Dean to testify in his behalf, and none of them detailed any such character of statement as Hunt now for the first time discloses in his affidavit. The next affidavit is that of Dr. Harlan, a resident- of Beaumont, where this killing and trial occurred, and his affidavit merely states that, in his opinion, the excessive use of intoxicating liquors combined with the habitual use of narcotic drugs will, and in many instances it has, produced such a degree of insanity to prevent the user from knowing and understanding the nature of his acts. This could not be newly discovered evidence. Perhaps any other physician would have testified to the same thing as an expert. The appellant’s attorneys who tried the ease below also attached their affidavits, wherein they state in effect that they used diligence to ascertain the appellant’s mental condition, but they nowhere state what that diligence was or what diligence they used other than their mere conclusion. The only other affidavit is that which purports to be the affidavit of Frank Fenwick Young, a Louisiana doctor. The effect of his affidavit is that about ten years before this homicide the appellant was in his sanitarium in Louisiana for treatment for inebriety, and that he treated him and soon after discharged him, much better, but, he thinks, not entirely cured, and he gives his opinion from what has been told him about the killing and appellant’s condition at the time, without stating what that is, tha.t he was of the opinion that he was insane at the time of the killing. Surely, this cannot be claimed to be newly discovered testimony. If appellant had ever been treated by this doctor for in-ebriety and discharged as much better, he certainly knew it. In our opinion, appellant’s motion on the ground of newly discovered evidence is wholly without merit and did not authorize the lower court to grant a rehearing thereon nor this court in reversing because thereof.

Besides, the judgment of the court overruling his motion shows that the court after hearing it and the evidence thereon overruled it. What that evidence is which the court heard is in no way disclosed to this court.

The judgment is affirmed.

On Motion for Rehearing.

After the original opinion affirming this case had been handed down, in connection with his motion for rehearing appellant also by certiorari had brought up- proper copies of some papers which had been omitted in the original transcript. All these, in connection with the whole record, have been duly considered by us.

Nothing new, so far as the merits of this case are concerned, are urged on this rehearing. He merely presents and urges some of the same things that were presented on the submission of the case originally.

Deceased’s mother, Mrs. W. T. Rigsby, and appellant, were the only eyewitnesses to the murder. He did not testify. Mrs. Rigsby did. He sought in his cross-examination of her to impeach her by showing that she was addicted to the use of morphine, and that therefore her testimony against him was unreliable and perhaps not true, especially, as to the position the deceased was in when appellant shot her the three times. As stated in the original opinion, the state’s witnesses, the doctors who testified to the wounds in the body of the deceased, differed as to the exit and entrance of the bullet holes in her body. In this connection, it was proper, if not necessary, that the garments worn by the deceased at the time appellant killed her, be exhibited to determine therefrom whether some of the wounds were the exits or entrances of the bullets in her body. And in this respect no error was shown by the exhibition of said garments. As stated in the original opinion, the record shows that no improper use or argument was made of these clothes. They were simply exhibited so that the witnesses could point out, as they did, where the balls had entered the body of the deceased, as shown by the garments themselves. This is so well established as the law in such matters that we deem it unnecessary to cite or discuss the authorities.

Appellant, again, by his able attorneys, contends that the court erred in refusing to give his special charge to the effect that, if the jury “find from the evidence that the defendant at the time of committing the offense had become insane from the long-continued and recent use of intoxicating liquors, or from some other cause,” to acquit him; and that it was reversible error not to give it. He also contends, in effect, that the evidence was sufficient to show that at the time he killed deceased he was insane, caused by the long-continued use of intoxicating liquors to such an extent as to at that time show that he was suffering from delirium tremens; and, further, that, because of his then said insanity, he could not be held to diligence in securing witnesses to show his then insanity. His attorneys make a plausible argument along this line, but it is wholly fallacious, in that it assumes facts . for its basis which the record does not bear out. The mere fact that one accused of crime pleads insanity as a defense is no evidence that he was insane at the time of the commission of the act. The pleading is the mere basis for the introduction of evidence and not evidence.

Because of appellant’s insistence and the fact that the death penalty in this case was inflicted, we have again read and studied the evidence and record in this ease carefully, and we are more confirmed than ever that no reversible error was committed on the trial of this case that would authorize or justify this court in any event to reverse this ease. Upon a further study of the evidence, we are satisfied that there is no testimony that appellant was insane from delirium tremens, or any other cause, at the time he killed the deceased, but, on the contrary, that he was then sane. There is no evidence in this regard whatever that appellant ever at any time or at any place had delirium tremens. At most, the evidence would tend to show that for a number of years prior to the killing appellant was a drinking man and occasionally in previous years got on sprees, but the evidence from his own witnesses shows that he had quit drinking for some time before this offense was committed, and there is no evidence whatever to show that at or about the time of this killing was he either drunk or drinking. The evidence as a whole, without doubt, and without contradiction, shows that for at least six years prior to the killing appellant had lived in the territory around Beaumont; that his wife’s parents for about four years before the killing had lived in Beaumont; and that most of that time their daughter had been with them in their home, separated from appellant repeatedly because of his. cruel treatment of her. There is no evidence that indicates that he was not competent to attend to his business day in and day out for all these years. On the contrary, as a matter of fact, it shows that he was in the active pursuit of his business during all these years.

“Every person is presumed to be of sane mind, UDtil the contrary is shown. Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90 (following Webb v. State, 5 Tex. App. 596; s. c. 9 Tex. App. 490): King v. State, 9 Tex. App. 515; Massengale v. State, 24 Tex. App. 181, 6 S. W. 35; Guerrero v. State, 171 S. W. 731” — note 1, art. 40, Vernon’s Ann. P. C.
“Accused has the burden of proving insanity by a preponderance of evidence. Roberts v. State, 150 S. W. 627; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Hurst v. State, 40 Tex. Cr. R. 388, 46 S. W. 635, 50 S. W. 719; Boren v. State, 32 Tex. Cr. R. 637, 25 S. W. 775; Webb v. State, 5 Tex. App. 596 ; s. c. 9 Tex. App. 490; King v. State, 9 Tex. App. 515; Johnson v. State, 10 Tex. App. 571; Jones v. State, 13 Tex. App. 1; King v. State, 13 Tex. App. 277; Mendiola v. State, 18 Tex. App. 462; Smith v. State, 19 Tex. App. 95; Fisher v. State, 30 Tex. App. 503, 18 S. W. 90; Lovegrove v. State, 31 Tex. Cr. R. 491, 21 S. W. 191; Stanfield v. State, 50 Tex. Cr. R. 69, 94 S. W. 1057: McCullough v. State, 50 Tex. Cr. R. 132, 94 S. W. 1056; Fults v. State, 50 Tex. Cr. R. 502, 98 S. W. 1057; Kirby v. State, 150 S. W. 455; Welch v. State, 71 Tex. Cr. R. 17, 157 S. W. 946; Douglass v. State, 165 S. W. 933; Guerrero v. State, 171 S. W. 731”—note 2, art. 40, Vernon’s Ann. Sr. C.

Appellant killed his wife early in the morning. He was very soon thereafter arrested and has been confined in jail continuously ever since. Some five doctors living in Beaumont testified in the case. He did not attempt to prove by any or either of them, and none of them testified, that he was insane at or about the time he killed his wife. At most by one of them, Dr. Johnson, he attempted to prove that at a time months before the killing he acted queer towards Dr. Johnson, and that Dr. Johnson at the time was afraid of him because, as Dr. Johnson said, appellant was then drinking and had seen his wife go into Dr. Johnson’s office and must have seen hér go out, and, because of some jealousy of her, he. at once went into Dr. Johnson’s office and so acted because of his jealousy and being drinking at the time as to cause Dr. Johnson to then think he was “not exactly normal at the time.” There can be no doubt from the evidence that he was in Beaumont time and again and frequently for some time prior to the killing. He was doubtless known by a large number of people living there at the time. The officials who had him in charge and who arrested him immediately after the act, and none of them, testified on the subject. No expert at any time examined him for the purpose of ascertaining whether he was sane or insane, doubtless because he knew he was not insane, and his attorneys must have known it.

Under the very terms of oúr statute and all the decisions thereunder (article 41, Vernon’s Ann. P. ' C., and decisions noted thereunder), neither intoxication nor temporary insanity produced by the voluntary recent use of ardent spirits shall constitute any excuse for the commission of crime, nor shall intoxication mitigate the crime or the penalty of crime. In this case, there was no evidence to show, and none tending to show, that appellant was drunk, or even drinking, at the time he killed .his wife, ifor at any time recently theretofore.

The court gave a full and proper charge in appellant’s favor submitting the question of his insanity to the jury for a finding. His charge was in accordance with the many decisions of this court. A large number of them are collated under article 40, Vernon’s Ann. P. C. It is unnecessary to give them in this opinion. Doubtless the court thought it better to submit the question of insanity to the jury under an abundance of precaution, even though the evidence did not call for such a charge. ',It was in his behalf and not against him. Christian v. State, 71 Tex. Cr. R. 574, 161 S. W. 101, and authorities there cited..

We think it unnecessary to further discuss any question in this case. From a full and thorough consideration of the record, the law applicable to the question, appellant’s brief, and authorities cited by him, we are fully satisfied that no- reversible error was committed in- the trial of this cause, and under the law we cannot do otherwise than overrule his motion for a rehearing, which is accordingly ordered.
      <@=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes