author: PRENDBRGAST, P. J.

text:
    WOOD v. STATE.
    (No. 3909.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Criminal Law <@=>1159 — Appeal — Matters Reviewable — Credibility of Witnesses.
    On trial of one accused of seduction, the credibility of witnesses, weight of their testimony, and facts established, are questions for the jury, and the court on appeal cannot disturb its finding thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <@=> 1159.]
    2. Criminal Law <@=>597 — Continuance — Right of Accused — Absence of Witnesses — Sufficiency of Showing.
    Where one accused of seduction moved for continuance on the ground of the absence of two witnesses by whom he alleged in his affidavit he could prove they had had sexual intercourse with the prosecuting witness prior to the alleged seduction, but accused failed to attach the affidavit of either to that effect, and, after conviction, on motion for new trial, the state produced the affidavit of one of them that he had never had such intercourse, and the court qualified the bill of exceptions to the overruling of the motion for continuance by stating that the other witness would not probably testify as accused stated, and that, if he did, the testimony would not probably be true, no error in refusing the continuance was shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. <@=> 597.]
    3. Criminal Law <@=>1124 — Appeal — Matters Reviewable — Record on Appeal.
    Error cannot be predicated on the refusal of a new trial prayed on account of the absence of witnesses, where the record shows that the court in hearing the motion for new trial lieai’d evidence, but the evidence heard is not disclosed by statement of facts, bill of exceptions, or other proper method.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. <@=>1124.]
    4. Criminal Law <@=>814 — Instructions — Evidence.
    Refusal of an instruction that prosecutrix traded her virtue for a promise of marriage, the only promise being to marry if she became pregnant from the intercourse, was not error, where the testimony of the prosecutrix showed the reverse to be true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1823, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <@=>814.]

      5. Seduction <S=»46 — Criminal Responsibility-Evidence of Inteecouese — Pbohise of Maeeiage — Coeeoboeation.
    In a prosecution for seduction, the testimony of the prosecuting witness need not be directly corroborated in every element of the offense, and circumstantial evidence is sufficient in corroboration if it connects the accused with the commission of the offense beyond a reasonable doubt; on, the questions of intercourse and promise of marriage.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. <S=>46.]
    6. Seduction <g=>40 — Ceiminal Responsibility — Evidence—Admissibility.
    In a prosecution for seduction, testimony that witness had a conversation with accused, who asked him for medicine to cause a miscarriage, and said that he was in trouble with a girl “over on the creek," and that he would marry her or leave the country, was admissible, in view of the further evidence that prosecutrix lived close to a stream called “the creek” and was the only girl who in that year in that community became enceinte, and that accused soon left the country.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. <§=»40.]
    7. Seduction <§=>46 — Criminal Responsibility — Evidence—Admissibility.
    Where prosecutrix testified that accused had exhibited a protector to her, testimony of other witnesses that they had seen such appliances in his possession prior to the alleged seduction is admissible in corroboration.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. <@=>46.]
    Appeal from District Court, Palo Pinto County; Wí. J. Oxford, Judge.
    Alvin Wood was convicted of seduction, and he appeals.
    Affirmed.
    John W. Moyers of Mineral Wells, J. T. Ranspot, of Palo Pinto, and W. P. Gibbs, of Gordon, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDBRGAST, P. J.

Appellant was convicted of seduction with the lowest punishment assessed.

We see no necessity of reciting the testimony. It was conflicting on several material points. That of the state was amply sufficient, if believed by the jury, to clearly justify the verdict. It evidently was believed by the jury. That of the appellant was amply sufficient, if it had been believed by the jury, to have secured his acquittal. The jury evidently did not believe him and his side of the testimony. This matter was entirely for the jury and the lower court. The jury, under the law, were the exclusive judges of the credibility of the witnesses, the weight to be given their testimony, and the facts established. We cannot disturb the verdict. Kearse v. State, 68 Tex. Cr. R. 635, 151 S. W. 827.

The trial judge gave an admirable charge submitting properly every issue necessary or proper to be submitted to the jury. There were no objections to the court’s charge.

Appellant made a motion for a continuance on account of the absence of two witnesses, Ray Morris and Floyd Boarman. After the trial had progressed and some evidence had been introduced, appellant renewed his motion for a postponement, or a continuance, in order to get these two witnesses. Both these motions were overruled. By each witness he stated that he expected to prove that each of them had had sexual intercourse with Miss Roxie Christian, pros-ecutrix, prior to the time he is alleged to have seduced her. He claimed that each of these absent witnesses would so testify. On the face of his motions, they were apparently good and showed sufficient diligence. After his conviction, in his motion for new trial, he set up the overruling of his said motions as a ground for new trial. The state vigorously contested the motion, alleging, in substance, that no such proof could be made by either of said witnesses, and that neither of them would testify that they had had sexual intercourse with the prosecutrix. The district attorney attached as a part of his resistance the affidavit of said Boarman, swearing positively that he never at any time hadi intercourse with the prosecutrix, and that he would not have sworn on the trial that he had had any act of sexual intercourse with her, and that he never at any time even suggested such a thing to her. The motion for a new trial was not acted upon by the court until about four weeks after the trial. Appellant attached no affidavit of the witness Ray Morris that he would have so testified on the trial.

The record shows with certainty that the court heard evidence at the time he acted upon said motion for new trial. What evidence he heard is not disclosed by any statement of facts, bill of exception, or other proper way of bringing the testimony and showing it to this court. Under the circumstances and well-settled law of this state, the court’s action therefore, in overruling the motions for a continuance and the motion for a new trial on the ground of the absence and lack of testimony of those witnesses, presents no error. Jones v. State, 163 S. W. 76; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426; Forrester v. State, 73 Tex. Cr. R. 67, 163 S. W. 87; and where some of the cases are collated, Roberts v. State, 180 S. W. 1080.

In explanation of appellant’s bills to the overruling of his motion for a continuance as to the witness Morris, the court allowed the bill, with this explanation:

“That the evidence showed that the witness Ray Morris had ceased paying attendance to the prosecutrix long prior to the alleged seduction, and there was not a fact or circumstance in evidence that cast the slightest suspicion on the prosecutrix in connection with the said Ray Morris, nor in connection with any other man except the defendant, and in the opinion of the trial court, in the light of the testimony, the said Ray Morris would not have testified that he did have intercourse with the prosecutrix at any time, and, if he would so testify, that his said' evidence is not probably true and would not have changed the result of this trial.”

It is the well-settled law of this state, both by our statute and a very large number of decisions, that an accused is not entitled to a continuance as a matter of right; that the truth, merits, and sufficiency of his motion for a continuance are matters now addressed to the sound discretion of the trial court. Judge White, in his Ann. C. C. P. § 643, lays down the correct proposition that an application for a continuance will be held properly overruled when, in connection with the evidence adduced on the trial, it is apparent that the proposed absent testimony would not be probably true, citing a large number of decisions supporting his proposition. Again, in section 647, he lays down the proposition that this court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement and the overruling of the motion for new trial based upon such applications, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was not only relevant and material, but probably true, citing a great many cases sustaining his proposition. And, further, in section 647, par. 2, he lays down this correct proposition: That this court on appeal will not reverse a judgment on account of the refusal of a postponement or a continuance, unless, in connection with the other evidence adduced on the trial, this court is impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted, citing a large number of cases supporting that proposition. The trial judge below, as shown by his qualification, properly acted upon these correct propositions of law applicable in this case, and in no event does his action in refusing a continuance or a postponement or a nevs trial because of the absence of said witnesses show any reversible error. Stacy v. State, 177 S. W. 118.

The court did not err in refusing to give either of appellant’s special charges shown by his bill of exceptions:

One, to the effect that:

“The prosecutrix shows she traded her virtue for a promise of marriage; that the only promise made to her was the defendant would marry her if she became pregnant, or anything happened to her from said intercourse. You will therefore find the defendant not guilty, and so say by your verdict.”

Another, to the effect that:

“The state must corroborate the testimony of the prosecutrix as to the act of copulation, and, having wholly failed to corroborate her on said point, you are instructed to find the defendant not guilty, and so say by your verdict.”

And the other, to the effect that:

“The state has failed to corroborate the testimony of the prosecutrix as to the promise of marriage, and the testimony of the said pros-ecutrix is before you wholly without corroboration. You are therefore instructed to find the defendant not guilty, and so say by your verdict.”

Neither of these charges should have been given.

The law in this state is well settled that in prosecutions for seduction the testimony of the seduced girl does not have to be corroborated in each and all of the necessary elements of the offense. The corroborative evidence may be slight, and the requirements of the statute are fulfilled if there be any corroborative evidence which of itself tends to connect the accused with the commission of the offense. Such corroboration only is necessary as is sufficient to satisfy a jury beyond a reasonable doubt of the truth of the charge in connection with the testimony of the accomplice. Nourse v. State, 2 Tex. App. 304; Jones v. State, 4 Tex. App. 529; Tooney v. State, 5 Tex. App. 163; Simms v. State, 8 Tex. App. 230; Clanton v. State, 13 Tex. App. 139; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 709; Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Bost v. State, 64 Tex. Cr. R. 464, 144 S. W. 589; Murphy v. State, 143 S. W. 616. This must necessarily be the law and the proper construction of the statute in cases of this character, for acts of intercourse are always as secret and private as can be and under such circumstances as the parties themselves believe will prevent their detection or even suspicion at the time. Also, engagements of young persons to marry are made in private and in secret between them, and very generally, if not entirely, the fact of engagement for at least some length of time is kept as private and secret between them as can well be. Therefore proof, in the nature of things, generally cannot be made other than by the testimony of the accomplice corroborated by such circumstances as to the time and place, opportunity, and the course of dealing or treatment between the parties along about the time as would tend to show such facts. Holmes v. State, 70 Tex. Cr. R. 434, 157 S. W. 487, and cases therein cited; Curry v. State, 68 Tex. Cr. R. 264, 151 S. W. 319; Curry v. State, 72 Tex. Cr. R. 465, 162 S. W. 851; Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709 (Judge Ramsey’s opinion) and on page 281 of 61 Tex. Cr. R., on page 711 of 134 S. W. (Judge McCord’s opinion), and cases cited by them; Warren v. State, 67 Tex. Cr. R. 273, 149 S. W. 130; Gillespie v. State, 73 Tex. Cr. R. 599, 166 S. W. 135. A large number of other cases are collated in those we have just cited above. It is unnecessary to collate them here again. It is also the well-settled law of this state that the corroboration of a witness who is an accomplice can as well be made by circumstantial as by positive testimony. In seduction cases corroboration roust be bad largely by circumstantial testimony.

We bave carefully read and considered tbe testimony in this case. There are many facts and circumstances testified to by witnesses other than tbe prosecutrix which corroborate her under tbe law amply as to every material fact where corroboration was necessary. We think no useful purpose could be served by taking up tbe testimony of tbe prosecutrix and each witness to show that she was amply corroborated. Her testimony taken as a whole, alone, or in connection with tbe other testimony, did not justify the court to tell the jury that she had traded her virtue for a promise of marriage; that the only promise made to her by defendant was that he would marry her if she became pregnant, or if anything happened to her from intercourse, as claimed by one of appellant’s charges. Her testimony clearly tends to show the reverse of this.

The court, in submitting the case for a finding, required the jury to affirmatively believe beyond a reasonable doubt from the evidence every fact essential to appellant’s conviction before they were authorized to do so, and, in addition to giving the reasonable doubt and presumption of innocence, he gave the converse of this submission of the case to them and told the jury that, “if you do not so believe and find from the evidence beyond a reasonable doubt, to acquit him.” And, in addition to all this, the court charged the jury as follows:

“The term ‘seduce,’ as used in this charge, means to lead away from the path of virtue by a promise of marriage, and the carnal intercourse must occur by virtue of the promise of marriage. It means an enticement of a woman on the part of a man to surrender her chastity by means of a promise of marriage, and the promise must be absolute and unconditional.
“In this connection, you are further instructed that if you believe from the evidence that the defendant had promised to marry prosecutrix, and that thereafter, and while said promise and engagement was still in force, he induced her to have intercourse with him and to permit him to have carnal knowledge of her person, by virtue of said promise, then this would constitute seduction.
“On the other hand, if the defendant induced the prosecutrix to have carnal intercourse with him (if he did have such intercourse with her) upon the conditional promise that if she became pregnant he would marry her, and if she yielded to his embraces and permitted him to have carnal knowledge of her solely upon the condition that he would marry her provided she became pregnant, or if you have a reasonable doubt as to whether or not she did, then this would not constitute seduction, and defendant should be acquitted.
“Moreover, gentlemen, if the defendant had carnal knowledge of the prosecutrix, and in yielding to him she was induced to do so through lust or from any other motive than that of an absolute promise to marry her, he cannot be convicted.
“Our law provides that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows that some person has committed the offense.
“In this connection, gentlemen, you are instructed that Roxie Christian is an accomplice, and that a conviction cannot 'be had upon her testimony, although the jury may believe the same to be true, and that it establishes the guilt of the defendant beyond a reasonable doubt, unless her testimony is corroborated by other evidence tending to establish the fact that the defendant, prior to the alleged intercourse and on or about July 5, 1914, or after said date promised to marry the said Roxie Christian, and unless her testimony is corroborated by other evidence tending to show that the defendant actually had carnal knowledge of her, the said Roxie Christian, by virtue of said promise of marriage, and the corroboration is not sufficient if it merely shows that some person had seduced or had carnal knowledge of Roxie Christian.”

The testimony shows that appellant was rather an intimate friend of Harve Brothers and had been for many years; that Mr. Brothers was in no way related to any of the parties, nor shown to have been in any way biased or prejudiced. At the state’s instance, he testified:

“I had a conversation with Alvin Woods in January of this year in the Merchandise store at ’Strawn. I was in the store when he came in. He called me off and asked me if I knew of any medicine to knock a kid, and asked me if I would get it for him, and I told him I had never had any trouble like that and didn’t know anything about it. I asked him who he had trouble with, and he said ‘a girl on the creek.’ He never called the name. He said he was going to marry her or leave, and he said he would leave. I am well acquainted with the people in that neighborhood. I have not heard of any other unmarried woman in that neighborhood that has gotten in a family way except Miss Roxie Christian.”

Appellant objected to this testimony, because it did not disclose that prosecutrix was the girl to whom he referred, nor what kind of trouble he referred to, and that the girl over on the creek was too vague and indefinite to locate the residence -or whereabouts of the prosecutrix, and it was so general that it might apply to any girl on any creek, and it was calculated to injure and prejudice him before the jury. The court approved the bill, with this explanation and qualification:

“That the evidence showed that in July, August, and September of 1914, the prosecutrix lived within about 309 yards of Ioni creek, and the neighborhood in which she lived was referred to and known by the people generally as ‘on the creek.’ That the proof further showed that during said time the defendant was paying assiduous attention to the prosecutrix, with her practically every Sunday, spending some nights at her home, and many of the week days. And the evidence further showed that he was paying court to no other girl, and that prosecutrix is the only unmarried woman who got in a family way on that creek or in that section of the country during the year 1914. And the court felt, under the circumstances, that this evidence should go to the jury, and leave them to determine whether or not the defendant’s statements alluded to the prosecutrix.”

The evidence showed that appellant then did leave Palo Pinto county and went to a distant county. This evidence was clearly admissible.

The appellant, first, on cross-examination of prosecutrix, asked her about appellant’s having cundrums and having exhibited them to her. At the instance of the state, said Brothers and Cleve Foreman each testified, in substance, after the prosecutrix had testified, that at the close of the school in the spring of 1914 they were at a dance at Mr. Riebe’s; that appellant was there; that they saw him pull a handkerchief from his pocket and drop three or four cundrums on the floor, which he tried to cover up with his foot. Appellant objected to all this for various reasons. In approving this bill, the court did so with this explanation:

“That this incident occurred prior to the time that defendant is alleged to have had intercourse with prosecutrix, and she testified that during the time he was having intercourse with her be exhibited to her some cundrums. Which fact, if true, would show, or tend to show, an undue intimacy between defendant and prosecutrix, and that he was actually having intercourse with her. And evidence that he was in possession of cundrums prior to the time she alleges that he showed them to her was, in the opinion of the trial court, a circumstance tending to corroborate her statement that he did show-them to her, and also that he was having intercourse with her.”

Under the facts and circumstances of this case and as thus qualified by the judge, the said testimony was admissible.

There is no other question raised requiring discussion.

The judgment is affirmed.

DAVIDSON, J., not present at consultation.
      <@=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=jPor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DAVIS v. STATE.
    (No. 3942.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Labceny <®=>17 — Elements of Offense— Asportation.
    Under Pen. Code 1911, art. 1331, providing that, to constitute taking in theft cases, it is not necessary that the property be removed any distance from the place of taking, the branding by one of the animals of another without removing them from their accustomed range, but with the intent of appropriating the animals, is sufficient evidence of a fraudulent taking to sustain a conviction of theft, without further aspor-tation of the animals.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 36; Dec. Dig. <§=>17.]
    2. Larceny ¡@=>55 — Evidence—Sufficiency.
    Evidence held to support a conviction of theft of animals.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. <§=>55.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Jonah Davis was convicted of theft, and he appeals.
    Affirmed.
    S. H. German, of Livingston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of two hogs, and his punishment assessed at two years’ confinement in the state penitentiary.

There is but one question raised on appeal, and that is the sufficiency of the evidence to sustain a conviction. It is a case depending entirely -on circumstantial evidence, and if asportation of the stolen property was necessary to sustain a conviction, it would undoubtedly be insufficient, for it is not shown that the hogs were removed from their accustomed range. Article 1331, Penal 'Code, lirovides that, to constitute “taking” in theft cases, it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it lias been in the possession of the thief. In Coward v. State, 24 Tex. App. 590, 7 S. W. 332, it was specifically held that the marking and branding of an animal (without as-porting it, or taking it from its accustomed range) for the purpose of appropriation will evidence a fraudulent taking. The facts in that case are quite similar to the facts in this case, and the evidence was held sufficient. In that case, as in this, there was a changing of the marks on the animal, and it was held this could not have been accomplished without reducing the animal to possession. Judge White saidi;

“We see no good reason, however, why a fraudulent taking of an animal may not be evidenced by an illegal marking and branding for the purpose of permanently appropriating it, since asportation is not necessary to constitute theft (Penal Code, art. 726), and since it is manifest that marking or branding cannot be accomplished without an actual manual possession of the animal by the party engaged in it.”

The proof shows that Banks Austin’s mark was a smooth crop and a hole in one ear, and a crop with a split in the other ear; the marks on the hogs had been changed ; the cropped ear had two splits in it, instead of one, and the other ear with a hole in it was cropped again. The changes showed to have been recently made, as they had not healed. Appellant’s father gave the mark that the hogs had been changed to, according to the state’s testimony, and appellant testified he had been in charge of his father’s hogs for four years; his father was too old and feeble to look after such matter, and appellant always refers to the mark as his (appellant’s) mark. Banks Austin positively identified the hogs as his hogs, and he went to see appellant when he found the hogs with the mark changed, and appellant claimed the hogs, and said they were in his mark. Appellant denied having this conversation with Austin, but admitted that the crop in one ear and two splits in the other was his father’s mark, and he (appellant) had been and was looking after them, and they were in his control, and that he had been doing all the marking for his father for several years. On the question of intent the state proved this was not the first time appellant had marked another’s hogs in his father’s mark; that he marked Tom Whisenhant’s hog in that way, and had been compelled to straighten the matter up. Tom Whisenhant testifies that a short time before these hogs- were found with their marks changed he heard some dogs barking down in the woods, and, upon going down there, he found appellant with a bunch of hogs, and, upon asking him to whom the hogs belonged, he said “mine” or “ours” ; that the listed sow and spotted sow Austin says belonged to him, and that the marks changed were in the bunch of hogs that appellant then claimed. Under such circumstances we cannot say the jury, under a proper charge, was not authorized to find appellant guilty. The court required the jury to find beyond a reasonable doubt that the hogs belonged to Austin; that appellant had the intent to appropriate them to his own use and benefit, and further instructed that, even though they find the hogs belonged to Austin, yet if appellant marked them through mistake, thinking they belonged to his father, they would acquit appellant. It is true no one testifies he saw appellant mark the hogs or change the marks, yet Whisenhant puts him in possession of them; the hogs when seen thereafter had their marks changed from Austin’s mark to the mark claimed by appellant, and if they had not been found until the marks had healed, he doubtless could have recovered the hogs iñ a suit for their possession.

The judgment is affirmed.

DAVIDSON, J., not present at consultation.
      <itex>For other oases see same topic and KEY-NDMBJ3R in all ICey-Numbered Digests and Indexes


author: HARPER, J. DAVIDSON, J.

text:
    MIKESKA v. STATE.
    (No. 3833.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Feb. 2, 1916.
    Dissenting Opinion Feb. 17, 1916.)
    1. Criminal Law <&wkey;398 — Evidence—Insanity.
    In a prosecution for wife murder, where defendant set up insanity and attempted to prove the defense by evidence of his entire life history, the state could show in rebuttal, by similar evidence, that at no period of his life was defendant’s mind so unbalanced as to render him irresponsible for his acts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. <&wkey;> 396.]
    2. Criminal Law <&wkey;393 — Evidence—Insanity.
    Testimony of a qualified expert that defendant appeared in court to be playing the part of one afflicted with melancholia, that he was not suffering from such disease, and that he had not so acted while in jail was not improper, as causing the defendant in effect to testify against himself, since experts, in giving an opinion as to a defendant’s sanity, may take into consideration his acts, conduct, and demeanor on trial, as well as such matters on other occasions, while the jury may also consider the behavior of a person as observed by them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. <&wkey;>393.]
    3. Criminal Law <&wkey;474 — Evidence—Insanity.
    The testimony of qualified medical experts on insanity that a person laboring under a sudden attack of insanity or mental aberration brought on by trouble, and having a slip of the mind for an hour or a day, would not, after recovering normal consciousness, know anything he did or anything that happened during the time was admissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent Dig. § 1061; Dec. Dig. <i&wkey;474.]
    4. Criminal Law <&wkey;47iL-EviDENCE — Insanity.
    Testimony of medical experts that one insane to the extent of not knowing right from wrong would not and could not detail the incidents attendant upon a homicide by him, and the events just before and subsequent to the homicide, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1061; Dec. Dig. &wkey;>474.]
    5. Homici-de (&wkey;179 — Evidence—Insanity.
    In a prosecution for wife murder, defended on the ground of insanity, the jailer’s testimony of his conversation with defendant in custody, tending to show that defendant was rational and also having bearing on the question of his guilt or innocence, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <&wkey;179.]
    6. Homicide <&wkey;179 — Evidence—Insanity-Conduct of Defendant.
    The_ jailer’s testimony as to defendant’s demeanor in custody, relating a conversation with defendant which had no bearing on the issue of guilt or innocence, but merely had a tendency to aid the jury in passing upon the question of insanity, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <&wkey;>179.]
    7. Homicide <&wkey;179 — Evidence—Insanity-Conduct of Defendant.
    It was proper for the jailer to testify, without giving an opinion as to defendant’s sanity, that defendant did not conduct himself in jail like he did on the trial, and that he had never noticed anything peculiar about defendant outside of the courtroom.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <&wkey;>179.]
    8. Criminal Law <&wkey;452 — Evidence—Insanity — Qualifications of Witnesses.
    Three witnesses, one of whom was defendant’s sister-in-law, and had often visited at defendant’s home for 15 years, the second of whom had known defendant for four years, lived a neighbor to him, and frequently met and talked to him, and the third of whom had known defendant for 18 or 2Ó years, during a portion of which time they had worked adjoining farms and met about every day, and during another period about every week, were sufficiently qualified to testify that during _their acquaintance with defendant there was nothing that led them to believe .there was anything wrong with his mind.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1053-1055; Dec. Dig. &wkey;> 452.]
    9. Criminal Law &wkey;?814 — Trial — Instruction-Abstractness.
    In the absence of evidence that defendant was suffering from any disease at the time of the homicide or trial, an instruction that if the jury believed he was so afflicted, and that the disease, in connection with the long-continued use of liquor, and its recent use, produced temporary insanity, they should acquit, was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1S65, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <&wkey;>814.]
    10. Criminal Law <&wkey;829 — Trial—Instruc-tions — Repetition.
    The refusal of a special charge, on an issue as to which the court fully instructs, is not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    11. Criminal Law &wkey;>814 — Trial—Instruction — Abstractness.
    In the absence of evidence that defendant was suffering from delirium tremens or settled insanity from the use of intoxicants, at the time of the homicide, the refusal of a charge, as to his being permanently insane at the time from the long-continued use of intoxicants, was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;>814.]
    12. Criminal Law <&wkey;'53, 57 — Intoxication as Defense — Statute.
    By direct provision of Pen. Code 1911, art. 41, intoxication and temporary insanity produced by the voluntary use of intoxicants are eliminated as defenses to a charge of crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 65, 69, 70, 761; Dec. Dig. &wkey;53, 57.]
    13. Criminal Law &wkey;>829 — Trial—Instructions — Repetition.
    Where the court’s charge and a special charge of defendant’s given at his request, fully and completely presented the issue of insanity as made by the testimony, the refusal of other special charges on the issue was propel*.
    ,[Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;>829.]
    14. Criminal Law <&wkey;50 — Insanity as Defense.
    The doctrine that one, not otherwise insane, who commits crime from an irresistible impulse, cannot be held accountable therefor is not the rule in Texas.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 62-64; Dec. Dig. &wkey;s50.]
    15. Homicide <&wkey;>237 — Evidence—Insanity. In a prosecution for wife murder, defended on the ground of insanity, the state need not prove defendant sane beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 500; Dec. Dig. <&wkey;237.]
    16. Criminal Law <&wkey;722 —Trial — Argument oe Counsel.
    In a prosecution for wife murder, the argument of state’s counsel that while defendant was in a saloon drinking good whisky his wife was out in the field picking cotton to support her children, which had support in evidence, was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. <§=»722.]
    17. Criminal Law &wkey;>713 — Trial — Argument oe Counsel.
    The intemperate argument of state’s counsel that when there is no other defense “you will always find them resorting to the low-down, cowardly, stinking defense of insanity” did not authorize reversal, as it merely characterized the defense, and not defendant, though vituperation and personal abuse of a defendant, calculated to inflame the passions and prejudices of a jury, is improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. <&wkey;> 713.]
    18. Criminal Law <@=^863 — Trial — Instructing after Retirement of Jury — Statute.
    Under Code Cr. Proc. 1911, art. 754, providing that the jury, after retirement, may ask further instructions as to any matter of law, by appearing in a body, and, through their foreman, verbally or in writing, stating to the court the point upon which they desire instruction, which the court shall give in writing, where the court, when the foreman verbally stated that some of the jury wanted to know if there was any difference between capital punishment and death, answered verbally, having previously directed the stenographer to take down both question and answer, which was done, the judge signing the written instruction, which was delivered to the jury, there was no error.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2065-2067; Dec. Dig. <&wkey;> 863.]
    19. Criminal Law <&wkey;855 — Misconduct oe Juror.
    The drinking of a glass of beer by a juryman while eating his supper during trial does not constitute error, as the drinking of intoxicants by jurors constitutes reversible error only where some of them become intoxicated.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2048-2053; Dec. Dig. <&wkey;> 855.]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Frank B. Mikeska was convicted of murder, and he appeals.
    Affirmed.
    H. P. Shead and M. J. I-Iiekey, both of Richmond, C. H. Chernosky, of Rosenberg, and I-Ieidingsfelders, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch, T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The proof would show that deceased, being dissatisfied with the home appellant carried her to, a place near Crosby, in Harris county, said she was going to return to her father’s, in Waller county. Appellant in his confession says that the kinsfolk of deceased, before this, had been trying to get his wife away from him, and when, on this morning, she said she was not satisfied with the home he had provided, and that she was going back from where she came, he thought she meant it, and he could not control himself, and he went in another room, got a shotgun, and shot and killed her. On this trial he made no defense of his action further than to plead he was insane, and therefore not responsible for his acts. On this plea of insanity appellant introduced proof of his acts and conduct from his childhood up to and including the day of the homicide, and, by his father, of his conduct shortly after the homicide. All this evidence of queer conduct and acts during the various periods of his life’s history was introduced by appellant to prove that he was insane at the time of the hilling of his wife. Appellant does not rely upon any specific cause at the time of or just prior to the homicide to prove that his mind was temporarily unbalanced at the time of the homicide, but appellant begins with his childhood days and takes acts and conduct then occurring, and through all the various years of his life, to prove that at the time, at least, he was of unsound mind and incapable of knowing right from wrong. And as this inquiry embraced this broad a scope, in rebuttal of this testimony, certainly it was permissible for the state to show, if it could, that at no period of his life was appellant’s mind so unbalanced as to render him irresponsible for his acts. As the appellant relied on such facts to show that he was mentally unbalanced at the time of the commission of the offense, the state could introduce the same character of proof as tending to show that he was not mentally unbalanced at the time of the homicide, and was sane at that time.

In bills of exception Nos. 1, 6, 9, and 10 objections are made to the introduction of the testimony of Drs. York, Ross, and Martin. As these bills are all of the same character, we will state only what one of the physicians testified. After qualifying as an expert on insanity Dr. Martin testified:

“I talked to this defendant a number of times, talked to him about first one thing and then another, talked to him about his condition, how he felt and how he was getting along, what caused him to get into this trouble, and first one thing and another as it would come up, talked to him on general subjects, the weather, the war, or anything of that kind, current events. The day before this ease started last Wednesday I was present when he was talking about his troubles and his early boyhood and life generally, the day before this case started; he has made to me a detailed statement about the events of his life, from his boyhood and up to where he went to school, what he had done, where he had worked, and the name of his children and wife, and went into a history of his mother and father; he went into those subjects at length. In my opinion he is absolutely sane; I know that he knows it is wrong to kill any one. If a person had a slip of the mind for an hour or a day, and then regains consciousness, he would not know anything that took place during that interval; he could not detail anything that he saw or heard during that interval of the disease of his mind. If this defendant, several days after his wife died, made a detailed statement of all the facts and movements of the man and of his wife and his children during the day that she died, during the very time that she died; in other words if he made a detailed statement of those things— would say that he was absolutely sane at the time he committed the offense. The defendant here in the courtroom is a changed man from his appearance and conduct and his actions in the jail since the day before yesterday; he seems to be taking the role of melancholy; he is not suffering from any such disease as that. I observed him closely last night and this morning, and a man suffering from melancholia is absolutely relaxant, I mean by that he don’t bat an eyelid — observed him last night and this morning and he does not look it at all; it is absolutely my opinion that he is trying to simulate melancholy or insanity. Simulate means to take off; make off; pretend; malingering.”

Appellant objected, to this testimony on the ground that the conduct of appellant in the courtroom was not a proper subject of inquiry to be considered by the jury, and the manifest purpose of the questions propounded was to elicit from them and have them present to the jury a confession of the defendant’s conduct while in jail and his conduct while in the courtroom, and the defendant had not offered any evidence for the purpose of showing insanity, his looks, appearance, conduct, expression, or gestures, during the progress of the trial, or while he was in jail, and this was in effect causing the defendant to testify against himself. All the objections here urged were specifically passed on by this court in Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858, and decided adversely to his contention. In that case the objection, among others, was urged as here:

“Because it is an effort on the part of the state to use the appearance and conduct of the defendant in the courtroom, against him when' he was not placed on the witness stand.”

The court in that case said:

“The position maintained by appellant was in effect decisively ruled adversely to him in the ease of Burt v. State, 38 Tex. Cr. R. 397 [40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330], In that case Dr. Davis was placed on the stand as a witness for the state, and was permitted to testify that the defendant was simulating; that is, playing a part, and not acting naturally. This testimony was held not inadmissible. Again, in that case, Dr. Wooten was permitted to testify that while Burt was in jail, he had gone to the jail, had taken the dimensions of his skull, and while there examined the defendant, talked to him, looked at him and observed him. This was held not to be error. Again, in that case, Jack Hughes was placed on the stand for the state, by whom it was shown that he had noticed the fact that defendant had struck his head against the window frame the day before as he passed through the window, and that it was the only time defendant had done so in the many times he had passed through said window during the trial. This was held not to be error. Summarizing on the question generally, the court uses the following language: ‘We are not informed of any case holding that because a prisoner is in jail, unwarned, therefore his conduct cannot be observed, so that the expert can given an opinion as to his sanity. It would be a remarkable case, indeed, in which the accused, if insane, would simulate sanity. We cannot comprehend how the fact that he was in jail could affect his conduct in this particular in any manner, and therefore the ruling of the court in regard to the testimony of Dr. M. M. Smith was correct.’ See Adams v. State, 34 Tex. Cr. R. 470 [31 S. W. 372]. See, also, Cannon v. State, 41 Tex. Cr. R. 467 [56 S. W. 351], Again, as we have seen: ‘The conduct and acts of defendant while in jail may be given in evidence, as a basis for an opinion by a nonexpert as to defendant’s sanity, though defendant was not warned that his acts and conduct would be used as evidence against him, as they are not a confession.’ Adams v. State, 31 S. W. 372. The admission of this testimony could, in no proper sense, be held to be a reference to the failure of the defendant to testify, but was merely the expression of an opinion by the expert, based on the testimony developed at a hearing and having reference to the conduct, appearance, afid demeanor of the defendant then present.”

Appellant does not dispute this is the rule announced in the Tubb Case, but says that the Burt Case is not authority for such ruling, in that in the Burt Case the court stated that the defendant had “offered in evidence the manner and appearance of the defendant, the way he demeaned himself during the trial, as evidence of insanity at the time of the trial,” and the court gave this as a basis for its holding. The record discloses that in the Burt Case the defendant did not testify as a witness any more than did appellant in this ease. It may be in that case the defendant’s counsel called attention to his acts and conduct during the trial, while in this case it is not shown they did so, yet his acts, conduct, and demeanor during the trial were plainly evident to the jury. By no conceivable freak of the imagination could it be conceived that his acts, conduct, and demeanor during the trial were not and would not be noticed by the jury, and considered by them in passing on the issue of his insanity, and we think the Tubb Case was correct in holding that experts could take into consideration, in giving an opinion as to his sanity, his acts, conduct, and demeanor on the trial as well as his acts, conduct, and demeanor on other occasions. Guerrero v. State, 171 S. W. 731; Kirby v. State, 150 S. W. 460, and cases cited in Branch’s Crim. Code, under article 40, Penal Code (the advance sheets with which we have been favored). This is not only the rule in this state, but also in other jurisdictions. Wig-more in his work on Evidence, § 1160, says:

“On the issue of insanity, it was, from an early period, regarded proper that the person should appear before the chancellor for inspection. Since the chancellor is upon the subject of insanity no less a layman than is a juryman, it seems equally proper, and has been perhaps equally long established, that an inspection by the jury should be an allowable mode of acquiring knowledge on the issue of insanity. It seems to be universally accepted that, in whatever form the issue of insanity may be presented, the jury may take into consideration the behavior of the person as observed by them” (citing a- great number of authorities).

Appellant also contends that it was improper to permit these experts to testify that if a person is laboring under a sudden attack of insanity, mental aberration, brought on by trouble, or anything else, and had a slip of his mind for an hour or a day, he would not know anything he did, anything that took place or happened during that time, when his mind resumed its normal condition. This testimony was clearly admissible. These doctors had qualified as experts on insanity, evidencing that they had often treated this mental disorder, and were familiar with and informed of conditions under such circumstances. . And it was also permissible for them to state that one who was insane to the extent of not knowing right from wrong would not and could not detail the incidents attendant upon the homicide, and the events that happened just before and subsequent to the homicide. It was in evidence in this case that appellant had detailed all these incidents a week after the homicide, and the other evidence demonstrates that he correctly did so.

Bills of exception Nos. 3, 5, 15, 22, and 23 are objections to the admissibility of the testimony of the witness Tom Smith, the jailer, and to various portions of this witness’ testimony. This witness testified:

“I am a deputy sheriff; have known defendant ever since he has been in jail; that has been for some time. Have been a deputy sheriff five or six years; have had charge of him since this trial, have been around him. In a way I have had an opportunity to observe him in jail, his conduct in the jail; I go to the jail every morning; saw him every day. 1 have seen him in jail by serving different papers on different persons, and he was one among many, that is the only way I have observed Mm; he does not conduct himself in jail like here in the courtroom. From my observation of him in jail he is like any other ordinary prisoner, never noticed anything peculiar about him. During the trial of tMs case have transferred him from the jail to the courthouse and back and talked to him. I talked to him last night; I asked him if he was ready to go back to jail, and ho said, ‘Yes, sir,’ and Mr. Milam was standing there, and I said: ‘Frank, suppose we don’t handcuff you; are you going to run?’ He said, ‘No use to run, you wül get me anyhow.’ Have noticed him in the hold-over, today at noon, his conduct in there; took him from there to the sheriff’s office and he sat around in the office smoking a couple of cigars, came on back in, smoking a cigarette in there; three or four of these witnesses out there came up there to the door and talked to him through the door. I have handled lots of prisoners, and I found him to be an ordinary prisoner like any other man charged with murder; have noticed nothing about his conduct, his conversation, or anything else that would lead me to believe there was anytMng mentally wrong with Mm in any way.”

If the conversation detailed by the witness had any bearing on the question of his guilt or innocence of the crime charged against him, it would be clearly inadmissible, but as it did not and could not have any bearing on that issue, but would only have a tendency to aid the jury in passing on the question of his plea of insanity, the testimony was admissible. Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; Cannon v. State, 41 Tex. Cr. R. 486, 56 S. W. 351; Reinhard v. State, 52 Tex. Cr. R. 624, 106 S. W. 128.

Neither was it improper to permit the witness to state that the appellant did not conduct himself in jail like he did on the trial, and that he had never noticed anything peculiar about him outside of the courtroom. These various bills were qualified by the court in approving them. The court says:

“The witness was not permitted to give an opinion as to the sanity of the defendant. He testified that he had known defendant ever since he had been in jail right after the homicide; that he went to the jail every day; that he saw the defendant every day, and he had conversations with him and had noticed defendant while in the hold-over during the trial, and the testimony was permitted to be adduced to support the theory that he was simulating insanity during the trial and before the jury. The witness was merely permitted to testify, having shown sufficient acquaintance to do so, that he never noticed anything peculiar about defendant’s conduct, appearance, or speech that would lead him to believe there was anything wrong mentally with the mind of defendant.”

As qualified the bills present no error.

Appellant also in various hills objected to the testimony of Miss Annie Stasny, Tom Gasner, and Joe Repka. These witnesses all testify to having known appellant for a number of years. Miss Stasny testified she was a sister of the deceased and often visited her sister at the home of appellant during a period of 15 years. Tom Gasner said he had known appellant for 4 years and lived a neighbor to him, and frequently met and talked to him; that he had seen him every week for 4 years immediately preceding the trial. Joe Repka testified he had known appellant for 18 or 20 years. That during a portion of the time they worked adjoining farms, and during that time met about every day. Saw him about every week after appellant began working in the saloon at Brookshire. Each of these witnesses detail sufficient facts and show sufficient acquaintance with him as authorized the court to permit them to state that during their association and acquaintance with appellant there was nothing that led them to believe there was anything wrong with his mind. We had the question before us in the case of Jordan v. State, 64 Tex. Cr. R. 187, 141 S. W. 786, when a nonexpert witness will he permitted to express an opinion as to the sanity or insanity of a person on trial, and we there reviewed the authorities. We do not deem it necessary to do so again, but under the rules there announced the court committed no error in admitting the testimony of the witnesses named above and complained of in the bills of exception stated.

There was no exception reserved to the charge of the court seeking to point out any errors in the charge as given, but exceptions were reserved to the failure of the court to give some six special charges requested. One of them requested the court to charge the jury if they believed the defendant was afflicted with disease, and that such disease, taken in connection with the long-continued use of ardent spirits, and with the recent use of ardent spirits, produced temporary insanity, the jury should acquit. There was no evidence calling for such a charge. There was no evidence that appellant was suffering from any disease at the time he killed his wife, nor at the time of this trial.

As the court fully instructed the jury they could not consider the failure of the defendant to testify as a circumstance against him in language frequently approved by this court, there was no error in refusing the special charge on this issue.

There was no evidence that appellant was suffering from delirium tremens or mania a potu at the time of the homicide; therefore there was no error in refusing the charge in regard to appellant being permanently insane at the time of the homicide from the long-continued use of intoxicating liquors. Our Code, in article 41, has eliminated intoxication and temporary insanity produced by voluntary use of intoxicants as a defense to crime. There being no evidence of what is defined as “settled insanity” from the use of intoxicants in the record before us, the court did not err in refusing to submit such issue. Delgado v. State, 34 Tex. Cr. R. 157, 29 S. W. 1070; Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 87 Am. St. Rep. 811.

The court’s charge in presenting the issue of insanity, and special charge No. 3, given at the request of appellant, fully and completely present this issue as made by the testimony to the jury; therefore there was no necessity to give the other special charges requested on this issue.

The doctrine of insanity or nonaccountability from an “irresistible impulse” alone has never received the sanction of this court. Hurst v. State, 40 Tex. Cr. R. 387, 46 S. W. 635, 50 S. W. 719; Cannon v. State, 41 Tex. Cr. R. 489, 56 S. W. 351; Lowe v. State, 44 Tex. Cr. R. 224, 70 S. W. 206; Thomas v. State, 55 Tex. Cr. R. 296, 116 S. W. 600; Kirby v. State, 150 S. W. 455.

Neither has the doctrine that the state must prove the person on trial sane beyond a reasonable doubt ever received the sanction of' this court. While such a rule prevails in some jurisdictions, yet a large majority of the courts of final resort in the United States adhere to the rule recognized and enforced by the decisions of this court — that when the state has proven appellant guilty of the crime charged beyond a reasonable doubt, and he seeks to relieve himself of punishment for having committed the crime by proof that he' was insane, the burden is upon him to show by a preponderance of the evidence that his mind was in such condition that he did not know right from wrong as to the particular act committed. Suppose before announcing ready for trial a complaint had been filed charging that he was insane, and a trial had on that issue prior to this trial. Would anyone contend that it would be necessary to prove that appellant was insane beyond a reasonable doubt before a jury would be authorized to so find? We do not think so, but they would be authorized to find him insane upon a preponderance of the testimony, and because he elected to have ho such trial, and interposed the plea as a defense to the crime, it would not and should not change the rule of law as applicable to this issue alone. This matter was thoroughly discussed, by this court in the eases of Webb v. State, 9 Tex. App. 490, and King v. State, 9 Tex. App. 515, and in those cases it was held that the doctrine that the state must prove beyond a reasonable doubt that a person was sane was not to be the correct rule. Judge Hurt entered his dissent to such holding in the King Case, supra, but' the rule as announced by Judges White and Winkler in the Webb Case has always prevailed in this court, and in subsequent decisions adhered to by Judge Hurt as well as the other members of the court. This question is no longer an open one in this state, and we think the rule a correct one under the provisions of our Penal Code and Code of Criminal Procedure.

In bill of exceptions No. 8 it is made to appear that counsel for the state in argument said:

“While the defendant was in a saloon drinking good whisky, his wife was out in the field picking cotton to support her children”

—and the court refused to instruct the jury not to consider the remarks. Such remarks had basis in the testimony. Witnesses for appellant, testifying to conditions tending to show he was insane, testified to him tending bar for one of the witnesses for some two years; that at times he became intoxicated, while other witnesses testified that his wife had picked cotton for them while appellant was tending bar. Comments upon testimony legitimately in evidence, and deductions drawn therefrom, are never improper.

In bill No. 17 it is shown that counsel for the state in the closing argument said:

“When there is no other defense, you will always find them resorting to the low-down, cowardly, stinking defense of insanity.”

Appellant’s only defense was that he was insane. So reference to the fact that this was his only defense was legitimate. If the remarks were improper, it consists in the fact that he termed this defense a “low-down, cowardly, stinking defense.” In the American & English Ency. of Law and Practice, vol. 5, p. 366, it is said:

“Just and fierce invective, based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced 'by the courts. Thus new trials have been refused when the error assigned was the application to parties or witnesses by counsel in argument of the terms ‘assassin,’ or ‘murderer,’ ‘fiend’ or ‘scoundrel,’ ‘low-down whore,’ ‘liar,’ ‘thief ’ or ‘robber,’ ‘tramps,’ and other denunciatory epithets apparently warranted by the evidence in the case” —citing cases from almost every state in the Union, including many from this court, to wit: Glascow v. State, 50 Tex. Cr. R. 635, 100 S. W. 933; Tune v. State, 49 Tex. Cr. R. 445, 94 S. W. 231; Choice v. State, 54 Tex. Cr. R. 517, 114 S. W. 132; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064; Martinez v. State, 57 S. W. 838; Mason v. State, 81 S. W. 718; Love v. State, 78 S. W. 691; Johnson v. State, 53 S. W. 105; Miller v. State, 47 Tex. Cr. R. 329, 83 S. W. 393; Ball v. State, 78 S. W. 508; Drye v. State, 55 S. W. 65.

However, vituperation and personal abuse of a person on trial, calculated to inflame the passions and prejudice of a jury, disconnected with the trial, is highly improper and will not be tolerated. The remarks in this instance had no further reference to appellant than to characterize the defense interposed, and could and would only be taken by the jury as the opinion of counsel of such defense, and is not of the character that would authorize us to reverse a case because of such intemperate remarks.

The only other bill of exceptions in the record complains of the action of the court in permitting the jury to propound certain questions, which he had the stenographer take down in writing, and then had the stenographer to take down his reply to such questions, which were then handed to the jury in the following form:

“Court: What is it you want to know of the court?
“Jurors: Some of the jury want to know if there is any difference between capital punishment and death — the definition of capital punishment.
“Court: A capital offense means one that the death penalty can be inflicted in. Any offense for which the death punishment can be assessed is a capital offense. Capital punishment means the excessive punishment — the death punishment.
“Juror: A man that voted capital punishment, that would mean to inflict the death penalty.
“Court: Capital punishment is the death punishment. C. W. Robinson, Judge.”

Code Cr. Proc. art. 754, provides that the jury, after having retired, may ask for further instructions touching any matter of law. The jury shall appear in a body, and through their foreman, either verbally or in writing, state to the court the particular point of law upon which they desire instruction, and the court shall give such instruction in writing. This statute was complied with in this case. The fact the court permitted the jury to propound the question orally was authorized by this article, but he gave them no oral answer. He had the stenographer write out the question and his answer thereto, signed same, and this written instruction was delivered to the jury. All the court did was, at the request of the jury, define a capital offense and capital punishment. He could have refused to define these terms had he so desired; but, as he saw proper to answer the questions, and defined the terms properly, no error is presented.

The only other question presented by the court is on affidavit, attached to the motion for new trial, of Mr. Chenoski, of counsel for defendant, in which he says:

“That he received information from a reliable source that on the evening of the 9th of April, while the jury was at their supper, some of the jurors drank one or two steins of beer.”

The fact that a juryman in eating his meal drank a glass of beer as a part of the meal presents no error. It is only where some of the jurors become intoxicated that the drinking of intoxicants becomes reversible error. Jack v. State, 26 Tex. 1; Tuttle v. State, 6 Tex. App. 561; Rider v. State, 26 Tex. App. 334, 9 S. W. 688; Brown v. State, 45 Tex. Cr. R. 139, 75 S. W. 33.

The death penalty being assessed in this case, we have carefully reviewed each assignment in the record. Appellant made no defense other than he was insane, and therefore not responsible for his act. The court admitted no improper evidence on this issue, fairly submitted it to the jury, and the jury found that he was sane, and from the testimony adduced at the hearing it is not surprising that they did so find. Under the evidence the writer, had he been a member of the jury, would have been loth to assess the death penalty. It is true the record discloses no justification for the act, and we are firmly convinced that appellant was not insane. Yet he was a man given to drinking intoxicating liquors;' had drunk some whis-ky that morning; he had been worried and harassed by the lingering illness and death and burial of his oldest girl; he believed that some people were trying to separate him and his wife, and when she told him she was going to quit him and go home, he was in that frame of mind which doubtless rendered him reckless of consequences, and while in such frame of mind he shot and killed his wife. There were, so far as this record discloses, no antecedent menaces or grudges on his part. It was an act done from an impulse arising from no sufficient or just cause. It is true our law takes no notice of length of time in the forming of an intent to kill. It may be formed in an instant of time, and, if formed, it is murder. There is no doubt of appellant’s guilt of murder, and he should be severely punished, but whether or not the circumstances called for the highest punishment known to the law is a matter of doubt in the mind of the writer. This is a question, however, that the law has confided to the jury; and, as there is evidence authorizing a finding of a fixed and determined intention to kill upon a provocation that should not have provoked that degree of anger or rage as would render appellant incapable of not knowing what he was doing and the consequences of his act, we do not feel authorized to disturb the verdict of the jury because of the punishment assessed.

The judgment is affirmed.

DAVIDSON, J. I am of opinion this judgment ought not to be affirmed, either on the law or the facts, and may write on motion for rehearing.

DAVIDSON, J.

(dissenting).

Insanity was the defense relied upon by appellant. Upon that issue the case of defendant was mainly fought in the trial court No contest was made as to the fact that appellant killed his wife. That issue gathered about it many facts upon which the jury had to pass. Kindred to, a part of, and incidental to insanity was the mental condition and the facts and circumstances attending the homicide which indicated the mental condition, if the evidence should not be held to show insanity. This was of supreme moment to the defendant as it was to the fairness of the trial and the justness of the verdict and judgment. That issue brought forcefully the question of the mental status of the accused at the time that he fired the shot that took the life of deceased. It placed it in the forefront of this tragedy. This evidence shows the act was surrounded by facts that indicate appellant was not in condition mentally to have that cool, sedate, and deliberate mind which would manifest such mental condition or the degree of malice which would justify, demand, or authorize the jury to assess the death penalty.

I cannot believe under this record that the defendant ought to be hanged, even though he was not insane at the time he slew his wife. These two questions, however, were in the case: Insanity, first; and, second, a want of such coolness, sedateness, and deliberation as proved that a capital crime had been committed. There were no former grudges or menaces incident or prior to the killing. It is true appellant slew his wife, but all the circumstances show the slaying occurred without deliberation, and under a rash, sudden impulse. The evidence shows that he had not anticipated his wife’s acts, conduct, and statements and her fixed determination to leave and not live with him until immediately before the homicide. He sought to persuade her not to take that step. He threw his arms around and begged her. She, however, informed him of her fixed determination to leave him and go to her parents. He fired the fatal shot at once. He had prepared a new home for their future residence. Her dissatisfaction with this home led her to quit her husband. She disapproved sharply of the home he had secured, stating she would not live in it. He seized a gun, fired the fatal shot, and then cut his throat with a view Of taking his own life. I-Iis life, however, was saved by timely assistance. Just prior to this he had lost his little child, and on account of the heavy expenses incidental to its lingering illness he sold his home to meet that indebtedness. The facts will further show, without recapitulation substantially, that he had been worried and harassed and anxious about his child; not only so, but about his wife, who had permitted the transfusion of blood from her body into that of her sick child to save its life. Some of these matters came suddenly upon him unexpectedly, and whether he was insane or not, it certainly showed a want of the ingredients that our law fixes as a basis for capital punishment. The determination to kill, formed in a mind thus situated and envi-roned, and so suddenly executed, ought not to constitute basis for death penalty. If insanity be ignored as an issue, the facts, as I understand them, do not show any coolness of deliberation, premeditation, or preparation for the homicide, and such malice as justifies capital punishment is absent. The fact that a woman is hilled is not per se or perforce evidence that death penalty should be awarded. There may be absence of adequate cause that produces sudden passion to reduce to manslaughter, but still there must be evidence that would constitute a capital offense in order to authorize a capital verdict. If under such circumstances his mind could be cool, sedate, and capable of cool reflection, it would be a remarkable incident. In this connection, I wish to quote from the prevailing opinion written by Judge HARPER for the majority in this case, as follows:

“Under the evidence the writer, had he been a member of the jury, would have been loth to assess the death penalty. It is true the record discloses no justification for the act, and we are firmly convinced that appellant was not insane. Yet he was a man given to drinking intoxicating liquors; had drunk some whisky that morning; he had been worried and harassed by the lingering illness and death and burial of his oldest girl; he believed that some people were trying to separate him and his wife, and when she told him she was going to quit him and go home, he was in that frame of mind which doubtless rendered him reckless of consequences, and while in such frame of mind he shot and killed his wife. There were, so far as this record discloses, no antecedent menaces or grudges on his part. It was an act done from an impulse arising from no sufficient or just cause. * * * There is no doubt of appellant’s guilt of murder, and he should be severely punished, but whether or not the circumstances called for the highest punishment known to the law is a matter of doubt in the mind of the writer.”

I agree with the above statement as far as it goes, but think the verdict ought not stand. In this connection I wish to state that appellant, upon shooting his wife, cut his own throat, thus seeking to destroy his own life; and on the morning of the occurrence, and before they reached their home, he stopped at the doctor’s office and had the wound of his wife treated. It was the wound made when the transfusion of blood from her to the child occurred. This showed solicitude and attention to her comfort, health, and happiness.

I shall not enter into a discussion of the mental status of a suicide further than to say that fact does not afford evidence such as would lead to the belief that the suicide was in such mental condition as to justify the conclusion that he was legally guilty of capital homicide. I, therefore, cannot concur in affirming the judgment on the facts. I do not believe the life of this man should be taken by solemn trial upon this character of evidence. I have a great respect for the verdict of a jury. It is a part of the law of Texas that they should be the exclusive judges of the facts proved, the credibility of witnesses, and the weight to be given the testimony. It is the province of the court to charge the law, and this question is as exclusive in the court as it is in the jury to pass on the facts. One is no more solemn than the other. One is no more binding than the other. We unhesitatingly reverse judgments where the court has ruled erroneously to the detriment of the defendant, either in his charges or in the admission and rejection of testimony, yet the statute says that the jury shall receive the law from the court and be governed thereby. The jury may pass on the facts, and are required to do so; and where the evidence shows beyond a reasonable doubt the guilt of the party of the offense of which he is convicted, this court should sustain that verdict, or if upon appeal it appears to us with reasonable certainty that defendant is 'thus guilty, the verdict should be sustained, but the jury has no more authority, legal or otherwise, to convict on insufficient facts than has the court to authorize a conviction on an erroneous charge or admission of illegal evidence. This court is empowered by the statute and required by its terms to reverse and remand, or reverse and dismiss, or affirm, as the facts and the law and justice require, but it all hinges around the great central proposition that the accused is entitled to a fair trial by an impartial jury, and the record must show that he had had the fair trial, and in addition the facts must sustain the verdict rendered. This court is not powerless to remedy the errors even of a jury, and our reports are full of cases where we have reversed for want of sufficient evidence. It is a part of the solemn duty of this court to prevent injustice as well upon the testimony as upon the law. The obligation is as binding on one proposition as upon the other. A fair trial and a just verdict on the law and the facts is the ultimate criterion. Both law and facts must overcome the presumption of innocence and reasonable doubt. I cannot agree to sanction this verdict on this record.

The question of temporary insanity was a serious issue on the trial, and testimony was introduced to sustain it. He may or may not have been temporarily insane. The majority opinion, as did the verdict of the jury, finds that appellant was not insane. The majority opinion finds that the killing ocur-red under sudden impulse, but finds no error in the rulings of the trial court in regard to the issues of law or fact. I cannot agree with their conclusion with reference to some of the questions arising on the issues of insanity. . It will be noticed from the record that the only phase of insanity set up by appellant was that he was insane or crazy at the time of the homicide. There was no claim made and no issue tendered by him that he was insane at the time of the trial, or that he became insane after the commission of the offense, as set forth, in articles 39 and 40 of the Penal Code. Article 39 of the Penal Code provides thus:

“No act done in a state of insanity can he punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. No person who becomes insane after he is found guilty shall be punished for the offense while in such condition.”

Of the three phases set out in the above-quoted article only one was presented by appellant. He made no other issue on the question of insanity, presented no contention, and introduced no fact that he was insane at the time of the trial, or after he “committed the offense.” He presented the sole issue on that matter that he was insane at the time he committed the act. To this end he introduced evidence as shown by the record. The state was permitted to introduce evidence of varying character to show he was not insane subsequent to the homicide; that he was not insane while he was in jail, and not insane during his trial. The state was permitted to prove that he was simulating insanity during the trial before the jury. Timely objection was interposed to all this, but promptly overruled by the court. Temporary insanity was the only issue presented by the defendant. The issue of permanent insanity was not in the ease. On the issue as to temporary insanity, the evidence must be more particularly and specifically directed to the mental status of the accused at the time and with reference to the particular act charged or committed. Giebel v. State, 28 Tex. App. 151, 12 S. W. 591: Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751; Fisher v. State, 30 Tex. App. 503, 18 S. W. 90.

I wish to notice two cases (Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; and Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858), cited in support of the ruling of the trial court admitting acts and conduct of appellant after the homicide, while in jail, and during the trial, and that he was then simulating insanity, and also to sustain expert testimony covering the same time. Other cases are also cited, but I notice casually the Burt and Tubb Cases because of their prominence. Burt, in his trial, or his attorneys for him, set up insanity generally, and he further set up insanity at the time of and before his trial and after the homicide. In fact, his insanity as shown by that record, made an issue in the case, covered his life. I do not purpose to go into the facts of that ease, as the report of the case shows it with sufficient distinctness. It was therefore proper for the state to meet the issue as presented by Burt in that case. The state may . meet any phase of an issue that is presented, and so may the defendant, but we have various phases of insanity in Texas, but as only one is relied upon in the trial, the others cannot be issues. As I understand the record, the defendant objected by all legal methods he could command, and presents it to this court for reversal, that such testimony was introduced against him to meet his plea of temporary or partial insanity. His case was fought on the proposition that he was crazy only at the time of the homicide. Had he urged permanent insanity, as did Burt, in his trial, the state could meet it by such evidence as was at its command, but the state cannot set up such issue for the purpose of showing it did not exist. It would be a straw man built by the state to be destroyed by its own testimony — a false issue with false effect. The issue in the Tubb Case, supra, was that he was a paranoiac. The general doctrine of paranoia, without going into detail, is a growing, developing phase of insanity. If once it has fastened itself upon the mind, it remains and continues to grow and develop. If a patient should become free of insanity, it would seem to prove that he was never affected with paranoism. Of course it is unnecessary here to go into the different phases of this peculiar class of insanity. It was not in the case. These two cases, Burt and Tubb, cannot be legitimately used in this case. They do not bear upon the issue here. I do not care to follow these lines of discussion. I have written briefly my views, showing, as I understand the record, why the case should not be affirmed: First, on the facts; and, second, on the rulings of the court in reference to insanity. I have not discussed his guilt otherwise than as it pertains to the death penalty.

There is another phase of the case which I have not discussed. It was the speech or argument of one of state’s counsel complained of in the record and by bill of exceptions. I am not clear that I understand just when a speech is reversible error and when it is not, but I think that the speech in this ease was wrong, and appellant did what he could to get rid of it. by objections, requested charges, etc., but it proved of no avail. If these steps had not been taken, it might be said, under some of the cases, that' he should have asked special charges and taken other steps to rid himself of the obnoxious speech, but appellant did all this, and the speech is certainly, or ought to be held at least, outside of the pale of legitimate argument. As I stated, I do not care to elaborate my views. I have stated briefly these reasons, and I believe the case ought to be reversed and the cause remanded for another trial.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: DAVIDSON, J.

text:
    GILLIARD v. STATE.
    (No. 3886.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    On Motion for Rehearing, Feb. 9, 1916.)
    1. Criminal Law <©=>1086 — Appeal—Record
    —Sentence.
    The record must show a sentence, the final judgment, to give the appellate court jurisdiction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2709, 2770, 2772, 2794; Dec. Dig. <@=>1086.]
    On Motion for Rehearing.
    2. Embezzlement <@=>32 — Indictment.
    An indictment for embezzlement being required to allege defendant’s agency, and that he was charged with the duty of receiving the property, the receipt thereof, its receipt by virtue of his agency, and its embezzlement, an indictment, charging that defendant was agent of a church, that certain persons were trustees thereof, that as such trustees they had the custody and control and were the special owners of funds, and that defendant embezzled money which was the property of said trustees as such special owners, and which had come into the possession, and was under the care, of defendant, by virtue of his said agency, is insufficient, as it should have alleged not only the ownership by such trustees, as such, and their possession and control of the money, but that it was received by defendant from them in some fiduciary relation, and that thereafter he embezzled and appropriated it to his own use.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 47-50; Dec. Dig. <@=>32.]
    Appeal from Criminal District Court, Williamson County; A. S. Fisher, Judge.
    J. H. Gilliard was convicted, and appeals.
    Reversed and dismissed.
    J. F. Taulbee, of Georgetown, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for embezzlement. An inspection of the record discloses that it does not contain a sentence or final judgment. For this reason the jurisdiction of this court has not attached, and the appeal as presented by this record will be dismissed.

On Motion for Rehearing.

On a former day of this term, the appeal herein was dismissed because the record failed to show that appellant had been sentenced in the trial court. Without this sentence, which is the final judgment, the jurisdiction of this court could not attach. Since the appeal was dismissed, a motion has been filed for rehearing, with the correct certificate and copy of the sentence in the trial court showing the fact that appellant was properly sentenced; but that part of the record was omitted in the transcript for this court. With this satisfactory evidence before the court, that appellant was sentenced in the trial court, and that therefore the jurisdiction of this court does attach, the judgment dismissing the appeal is set aside and the cause reinstated, and the cause will now be heard upon the questions involved in the appeal.

Appellant was convicted of embezzlement, his punishment being assessed at two years’ confinement in. the penitentiary.

The first count in the.indictment alone was submitted to the jury by the charge of the court. Omitting formal parts, this count charges that:

Appellant was “the clert, agent, servant, employe, and officer of Bit. Cavalry Baptist Church at Taylor, Tex., a voluntary association of persons, and Wm. Harrison, A. Nelson and J. S'. Slider were trustees then and there of said Mt. Cavalry Baptist Church, and as such trustees they had the custody and control and were the special owners of the fund and property and money hereinafter mentioned, and the said J. H. Gilliard did then and there fraudulently embezzle, misapply, and convert to his own use without the consent of the said Wm. Harrison, A. Nelson, and J. S. Slider, or either of them, $350 in money of the value of $350, which said money was the property of said Wm. Harrison, A. Nelson, and J. S. Slider, special owners as above alleged, and which said money had come into the possession and was under the care of the said J. H. Gilliard by virtue of his said office, agency, and employment.”

It will be noticed that this indictment does not charge any fiduciary relation between Harrison, Nelson, and Slider and the defendant. In order to constitute a party guilty of embezzlement, the indictment must allege, and the evidence show, four things: First, the defendant’s agency, and that he was charged with the duty of receiving the property; second, the receipt of the property; third, its receipt by virtue of his agency; and, fourth, its embezzlement. Webb v. State, 8 Tex. App. 310; Epperson v. State, 22 Tex. App. 694, 3 S. W. 789; Leonard v. State, 7 Tex. App. 417; Griffin v. State, 4 Tex. App. 390; State v. Johnson, 21 Tex. 775; Brady v. State, 21 Tex. App. 659, 1 S. W. 462; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302. In order to have made this indictment sufficient under the law, it should have alleged, not only the ownership by these three parties named as trustees and their possession and control of the money, but it should have alleged that the money was received by appellant from them in some fiduciary relation as agent, employs, etc., and that, after alleging the fact of this fiduciary relation and agency, he then subsequently after receiving the money embezzled and appropriated it to his own use. This indictment does not so charge, and under these authorities we are of opinion that the indictment is insufficient to charge the offense of embezzlement as stated in the first count. This being the only count submitted to the jury by selection of the trial judge, the other counts are not noticed.

There is another question in the case of some moment. This can be avoided upon the filing of another indictment, and it is just simply mentioned in passing. The indictment charged the property to belong to a Baptist Church known as Mt. Cavalry Baptist Church. The evidence, without any dispute or question, shows the name of the church to be Mt. Calvary and not Mt. Cavalry. The pleader, if another indictment is found, should take time and precaution to allege the proper name of the real owner or the Baptist Church, which is Mt. Calvary, and not Mt. Cavalry. This -latter question is raised in various ways both on objection to testimony and in charges, and in fact presented in every way it could be presented. We have not discussed this, though a serious question, for the reason of the fact it will be cured upon another trial, if another indictment is found.

Believing the indictment is insufficient in regard to the matters pointed out, the judgment will be reversed, and the prosecution ordered dismissed.
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