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(248 S.W.) the cash register. He asked Shirley to quit, on account of the trouble between the chilwhen the latter told him to put down the dren. gun. The foregoing is substantially the [1] Bill of exceptions No. 1 consists of 10 state's testimony, which was further to the pages of questions and answers, and bill No. effect that Thompson made no effort to se 10 of 27 pages in the same condition. We cure the pistol until after he had been stab- fail to observe any necessity for the bills bed. Before giving substantially the testi- to have been presented in that form, and mony from the defendant's standpoint, we must decline to consider them. Jetty v. may state that the relations between the State, 90 Tex. Cr. R. 346, 235 S. W. 589; children of the two men were not pleasant. Palmer v. State (Tex. Cr. App.) 245 S. W. They had been quarreling and fussing, and 238; Reese v. State (No. 6806, opinion Nov. it appears that rocks and clods had been 29, 19:22) 249 S. W. 857; Hickman v. State thrown backward and forward among them. (No. 6890, opinion Dec. 20, 1922) 247 S. W. The substance of Mrs. Shirley's testimony is 518. Many authorities are collated in the that early in the afternoon of the killing, two opinions last cited. while her husband was away from home, she Bills Nos 6 and 7 are also in questions and heard some disturbance in the yard and answers, but as the complaints made in each heard deceased tell his little boy not to is because of an alleged insufficient predithrow clods, but “throw rocks and knock cate to admit impeaching testimony, there hell out of him"; that she went to the door appears to be some excuse for the form in and called her children in the house; that which they appear in the record. The obabout an hour and a half after this she went jection was general, but we assume it was into her yard; that deceased was in his cow on the ground that the questions to appelshed across the street; that he looked in lant had not fixed the place or time of stateher direction and exposed his person and ments attributed to him. Both bills proceed shook it at her; that she returned to the on the theory that the evidence objected to house and telephoned to the officers; that was purely impeaching and therefore not relater in the day she went to her door; and ceivable in the absence of strict compliance that deceased again from the same cow shed with the rule as to laying the predicate thereexposed his person to her and made vulgar for. In this we think appellant is in error. motions. It was a sharply contested issue The state was combating the truth of appelbetween the state and appellant as to wheth- lant's alleged reason for the killing, and iner it would have been possible for Mrs. Shir- sisting it came about because of the trouble ley to have seen deceased as she located him between the children. The testimony of the and herself except from the shoulders up. two witnesses was admissible as original Mrs. Shirley continued her testimony to the evidence to show appellant's state of mind · effect that when her husband returned home as bearing on a motive for the killing, and she immediately informed him of deceased's therefore the strict rule as to purely impeachconduct, at which he became very much dising evidence does not apply., It was admisturbed and did not eat any supper.

sible without a predicate. Appellant's testimony in substance was [2] Appellant objected (bill No. 2) to witthat after his wife informed him of the in- ness Hays testifying that when deceased sulting conduct of deceased, which he became into the store where the killing occurlieved, but thought surely deceased must red he “ordered some meat for his lunch that have been intoxicated or under the influence night,” because not made in appellant's presof dope of some kind; that he saw deceased ence. This in no way impinged on the selfleave his home and go towards the store; defense plea, and could not have affected it that he followed him to the store hoping under any phase of the evidence. See colhe would find out that deceased was intoxi- lated authorities under section 1930, p. 1080, cated and did not realize what he had done. Branch's Ann. P. C. He claimed that immediately when he walked [3] The court committed no error in perinto the store deceased grabbed the pistol and mitting Mrs. Thornberg to testify (bill No. whirled towards him with it, and that he 8) that on an occasion shortly before Thompgrabbed the pistol and then stabbed deceased son was killed, his and appellant's children in self-defense.

were fussing, and she heard appellant tell It will be seen from the foregoing narra- | his children to pick up a rock and knock the tion of the defensive testimony that from bis Thompson children in the head.

It was standpoint appellant raised the issues of self- pertinent to the state's contention that the defense, and of manslaughter predicated killing was because of the children's quarrel upon a killing at the first meeting after be and not the claimed insult to the wife. ing informed of insults to his wife. The [4] No error is presented in bill of excepstate's theory was that no such insulting tions No. 9. Appellant had filed an applicaconduct as claimed by Mrs. Shirley occurred, tion for suspended sentence. He had forbut that such claim was a fabricated de- merly lived at Kingsland in Llano county. fense, and that the real cause of the killing The state could properly show that while was because appellant was angry at deceased there his general reputation as a peaceable

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law-abiding citizen was bad. Overby v. State (mony shows the deceased's acts to bave been, (Tex. Cr. App.) 242 S. W. 213; Palmer v. when said conduct is related to and believed by State (Tex. Cr. App.) 245 S. W. 238; Waters the defendant, were and are such as would rev. State, 91 Tex. Cr. R. 592, 241 S. W. 496; duce the offense of murder to that of mapJohnson v. State, 91 Tex. Cr. R. 582, 241 s. slaughter in the event the homicide occurred W. 484.

upon the first meeting of the defendant and

the deceased." [5] The court charged that manslaughter was voluntary homicide committed under the immediate influence of a sudden passion aris

In addition to the foregoing exception, ing from an adequate cause but neither jus appellant asked two special charges which tified nor excused by law; further, that in were defective, in that they failed to take sulting words or conduct of the person killed into account the state of appellant's mind at toward a female relation of the party doing the time of the killing, but were to the effect the killing would be deemed under the law that although the jury might not believe adequate cause if the killing took place im- that deceased actually used insulting conmediately upon the happening of the insult. duct towards appellant's wife, yet if they ing conduct, or so soon thereafter as the believed she reported to appellant that he party killing might meet with the party had done so, and appellant believed it was killed after having been informed thereof; true and killed deceased upon the first meetfurther, that any condition or circumstance ing after having been so informed, he could which was capable of creating, or did create, not be convicted of a higher offense than sudden passion rendering the mind incapa- manslaughter. While these special charges, ble of cool reflection, was in law deemed ad- in the form requested, were properly reequate cause, and that where there were fused. yet we believe in connection with the several causes to arouse passion, although exception to the charge hereinbefore quoted no one might constitute an adequate cause, they were sufficient to call the court's atyet all of the causes combined might be suffi- tention specifically to the complaint being cient to do so. He further instructed that directed at the main charge. in determining whether there was a provoca

Appellant had a right to have his theory tion, and whether, if so, it was adequate of manslaughter submitted to the jury from cause under the law, the jury would look to his standpoint. He claimed that the sole all the facts and circumstances in evidence. cause of him going to the store where the The foregoing were general charges relative killing occurred was on account of the report to the law of manslaughter.

his wife had made of the conduct of deceased, In applying the law to the facts the court and waiving the question of self-defense, the charged as follows:

issue of manslaughter should have been clear"Now if you find and believe from the evi. ly submitted upon that state of facts undence beyond a reasonable doubt that the de- trammeled by its connection with other confendant cut and stabbed the deceased with a ditions, acts, or conduct on the part of de knife, and you further believe that at the time ceased. It will be observed that in apply; of so doing bis mind was laboring under such a ing the law the court told the jury if all or degree of anger, rage, sudden resentment, or terror as to render it incapable of cool reflection any of the matters embraced were adeguate produced by any or all of the acts of the de- cause, then appellant should be convicted ceased toward the defendant, or by any words, only of manslaughter. He was entitled in coupled with the acts of the deceased, prior to the application of the law to a charge clearand at the time of the killing, or from eitherly and specifically telling the jury that if the words spoken or acts done by the deceased, appellant's wife had informed him of insulttaken together or separately, and in connection ing conduct on the part of decased towards with all of the other facts in evidence, con

her and believed the same to be true, and stituted an adequate cause as same has been that the killing took place at the first meethereinbefore defined, and that while his mind was in such condition he cut and stabbed the ing of the parties after appellant was so deceased, from the effects of which the deceased (informed, and they believed the mind of apdid then and there die, then you will find the pellant was laboring under such passion as defendant guilty of the offense of manslaughter to render it incapable of cool reflection, and assess his punishment at confinement in the and that such passion arose from and grew state penitentiary for any term of years not out of the reported insulting conduct and less than two nor more than five in your dis- caused the act of the accused and appellant cretion."

was not acting in self-defense, then a conAmong other objections filed to the charge viction could not be bad for a higher grade we find the following:

of homicide than manslaughter. If the court “Because the charge does not properly define in evidence it was proper or necessary to do

believed from all the facts and circumstances the law of manslaughter, in that the same is a general charge and is not the law applicable to so, he might have added a charge upon manthe facts peculiar to this case as shown by the slaughter based upon general conditions record, for that the jury is not instructed that such as were incorporated in his main charge. the exposition and display of deceased's person A charge similar to the one given in this to the wife of the defendant, such as the testi- | case was discussed in Squyres v. State (Ter.

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(248 S.W.) Cr. App.) 242 S. W. 1024. Upon first con-, the locality in which it was found, the comsideration the judgment therein was affirmed, plete description of the deceased, the locality but later upon motion for rehearing a re- in which he was found, the condition of his versal followed based upon the proposition clothes, the condition of the ground where he

was lying, all the circumstances tending to show heretofore discussed. To the same effect will be found Flughes v. State (Tex. Cr. App.) relevant for purpose of corroboration.

the cause, time, and place of his death, were 244 S. W. 151. We do not discuss at length the authorities upon the point at issue, but 6. Criminal law Cw673(2)-Limitation of evi

dence of condition of body of deceased held many of them will be found collated in the

unnecessary, but not material error. two opinions cited. For the error pointed out, the judgment accused stated in a confession that after de

In a prosecution for murder, in which the must be reversed, and the cause remanded.

ceased was struck he was put in the locality in which his body was found, and testimony as to the condition of the body and of the ground near it was admitted, its limitation to the issue of corroboration in respect to the length of time

between the death of the deceased and when TODD V, STATE. (No. 6886.)

he was found, was unnecessary, but not mate

rial error.
(Court of Criminal Appeals of Texas. Jan. 31,
1923. Rehearing Denied Feb. 28, 1923.)

7. Criminal law Om858 (3)-Permitting jury to

take confession with them in their retirement 1. Criminal law 534(1), 1169(12)-Admis

not error. sion of evidence corroborating confession Under Vernon's Aon. Code Cr. Proc. 1916, not error, but, if error, was cured by with. art. 751, authorizing a jury to take with them drawal.

in their retirement any papers used in evidence, In a prosecution for murder, in which a permitting a jury in a prosecution for murder written confession by the accused stated that to take with them in their retirement accused's before the offense the accused had been given written confession used in evidence was not money by another to buy gasoline, the admis- error. sion of testimony by the seller of the gasoline 8. Criminal law Our 723(1), 1171(1) Arguthat the man who gave the money to the ac

ment that accused's father was able to hire cused paid for the gasoline for the purpose of

high-priced lawyers for him held orror, but corroboration was not error on the ground that

not prejudicial.
there was an inference that the accused stole
the money given him to buy gasoline, and the

In a prosecution for murder, the argument error, if any, was cured by the withdrawal of by an attorney for the prosecution that the acthe statement from the jury.

cused's father had plenty of money to hire

high-priced lawyers to defend the accused was 2. Criminal law e930-Refusal to grant new improper, but did not constitute prejudicial ertrial because of demonstration of audienco not an abuse of discretion.

In a prosecution for murder, where the 9. Criminal law Ow1171(1)-To cause rever. trial judge warned the spectators against mak

sal, improper argument must be material, ing demonstrations, notwithstanding which the

and calculated to injure accused. widow of deceased sobbed audibly during the

To cause a reversal, argument of counsel argument before the jury, and was admonished, must not only be improper, but of material and then kept quiet, except for an occasional character, and calculated, under the circumsob, the refusal of a new trial on account of stances of that particular case, to injure the such demonstrations was not an abuse of the accused on trial. discretion of the trial court.

10. Criminal law Ow1156(5)-Overruling mo3. Criminal law Cw930-Demonstrations by

tion for new trial because of misconduct of spectators not a ground for a new trial un.

jury not to be overturned on appeal unless less jury is prejudiced thereby.

clearly wrong. As a general rule demonstrations of the Overruling a motion for a new trial based spectators present in court do not constitute on misconduct of the jury, which was controa ground for a new trial unless it is probable verted, will not be overturned on appeal, unless that the jury was prejudiced thereby.

it be showa to be entirely wrong; the matter

being one of discretion.
4. Homicide Om294(1)-Exception to charge
on insanity held without merit.

11. Criminal law On9251/2(3) -Refusal of new

trial for misconduct of juror not an abuse of In a prosecution for murder, an exception

discretion.
to a charge on insanity of the accused on the
ground that it was not affirmative, and sub-

Under Vernon's Ann, Code Cr. Proc. 1916, mitted the issue alone in negative 'form, held art. 837, subd. 7, authorizing a new trial where without merit.

the jury has received other testimony after re

tiring to deliberate on a case, and subdivision 5. Criminal law eww534(1)-Evidence of sur. 8, authorizing a new trial for misconduct of the rounding conditions held relevant in corrob- jury which in the opinion of the court prevented aration of confession,

a fair and impartial trial, in a prosecution for In a prosecution for murder in which, ac- murder, overruling a motion for a new trial on cording to a confession of the accused, after the ground that a juror had stated that, if the the deceased was struck, his body was put in courts performed their duty, there would be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ror.

no excuse for mobs was not an abuse of the deceased, James McNeal, with his consent, discretion of the trial court, such statement be- on the pretense that they wanted him to take ing merely an argument, and not new evidence.them to a place on the road where they had 12. Criminal law w 1144(8)-Ruling of trial a broken car, and that while in the automocourt that juror was qualified presumed cor. bile with McNeal, and while he was driving rect.

it, he (McNeal) was struck over the head by In a prosecution for murder, where, after one or both of appellant's companions. Ap a juror was sworn, it was learned that he had pellant, acting in concert with them, stop written a letter of sympathy to the father ped the car, and the deceased was taken out and mother of the accused, and the prosecution and placed in a pasture near the road, where tried without success to have him excluded from the jury, the trial court's decision that he was subsequently found and identified. the juror was qualified will not be overturned Some $37 in money belonging to the deceased on appeal unless clearly wrong in view of the were taken from his pockets, and the appelpresumption of correctness of the ruling. lant and his companions took possession of 13. Homicide a319-Refusal of new trial for the car and drove it to Fort Worth, and aftnewly discovered evidence held not an abuse erwards hid it at a point not far distant from of trial court's discretion.

that city. In the confession the appellant Under Vernon's Ann, Code Cr. Proc. 1916, described in detail his provements for several art. 837, subd. 6, providing that new trials in days antecedent to the homicide. He and felony cases shall be granted where new testi- Dawson had been together during the greater mony material to the accused has been discov- part of the time. He related in the confesered since the trial, in a prosecution for mur

sion places to which he had gone and acts der, defended on the ground of insanity, overruling a motion for a new trial on the ground of that he had done and persons whom he had newly discovered evidence as to insanity, where met, and such transactions as he had had the witnesses could have been secured at the with them. Among other things he rela ied trial, and their testimony was only cumulative, riding in an automobile with a man from was not an abuse of the discretion of the trial Graham. On this subject, we quote the folcourt.

lowing from ap llant's confession: 14. Homicide Om 250-Evidence held sufficient

And he carried us on the road to to sustain conviction.

Weatherford when he ran out of gasoline; the In a prosecution for murder, evidence held man gave me a dollar and I went to the store sufficient to sustain a conviction.

on Clear Fork and he was not there, and I

caught a car back to where the man was, and I On Motion for Rehearing.

told the man that the storekeeper was not

there, and I went on to Weatherford with this 15. Criminal law G857(2)-Statements made by jurors not misconduct requiring reversal man; he was a phone man of some kind, but I of conviction,

don't remember his name; at Weatherford I

stopped at the Quick Service Garage and there In a prosecution for murder, a statement talked to Tom McGill, and he went back with made by a juror after the jury had retired to the gasoline." decide the case that, if the jury did not assess the death penalty, a mob would get the accused, McGill was called as a witness for the and a statement by another juror that there state, and testified that the appellant came were three persons involved in the killing and, if the death penalty was not assessed in to him and said that a pran some distance this case, it would not be in the others, do not out on the road wanted three gallons of gasorequire reversal, being merely argumentative.

line; that McGill took it to him, and the man

paid him for it. That the man paid for it 'Appeal from District Court, Parker Coun

was objected to upon the claim that it carty; F. 0. McKinsey, Judge.

ried with it an implication that appellant Wayne Todd was convicted of murder, and had stolen the dollar which the man gave he appeals. Affirmed.

him. It was competent for the state to corHood & Shadle, of Weatherford, for ap- roborate by legitimate evidence the statement pellant.

in the confession. We fail to gather from the R. G. Storey, Asst. Atty. Gen., and Preston confession the inference which appellant's Martin, of Weatherford, for the State. objection suggests. However, inasmuch as

the court withdrew from the consideration of MORROW, P. J. The appellant was in the jury the statement by McGill that the dicted for the murder of James McNeal, and man to whom he took the gasoline paid for upon his conviction the jury assessed against it, we regard the bill as revealing no error. him the penalty of death..

[2, 3] Bill No. 2, as qualified by the trial [1] The state introduced in evidence the judge, shows that immediately before the arwritten confession of the appellant, in which gument, he was requested by appellant's he declared that he, in company with one counsel to warn the crowd present against Forrest Dawson and one McElhaney, in ac- any demonstration; that this was done; that cord with a prearranged plan to commrit rob- in making the request no mention was made hery, got into an automobile driven by the of the relatives of the deceased. During the

(248 S.W.) argument of one of the state's counsel, the, was embraced within this rule. Upon appelwidow of the deceased began weeping so lant's objection to its receipt, the court statthat she might be heard over the courtroom; ed that it would be limited to the issue of that the court directed the sheriff to ad-corroboration. The limitation is deemed unmonish her that she must desist and that necessary, but not material error. she must restrain herself or retire; that she [7] The bill of exceptions complaining of did desist from audible weeping with the ex- the action of the court in permitting the jury ception of an occasional sob, until recess to take with them in their retirement the time. At noon, the court called upon the rela- written confession made by the appellant and tives to prevent her from entering the court- introduced in evidence, we think, is without room if she could not control her feelings. merit. Article 751 of Code Cr. Proc., in terms, This was done, and the widow made no fur- authorizes the jury to take with them in their ther demonstration. As a general rule, mat- retirement "any papers used in evidence." ters of this kind are not regarded as a ground The statute has been construed upon a numfor a new trial unless it appears probable ber of occasions. See White's Ann. P. C. $ that through them the jury was prejudiced 873; Vernon's Tex. Crim. Stat. vol. 2, p. 566. against the accused. In this case the demon- In Holder v. State, 81 Tex. Cr. R. 195, 194 S. stration was promptly suppressed by the trial W. 162, based upon precedents there cited, court, and, considered in the light of the evi- the statute was construed to embrace the dence, the court did not, in our judgment, written confession of the accused. We are abuse its discretion in refusing to grant a aware of no precedent to the contrary. None new trial. For similar instances, see 16 Corp has been cited, nor has there been any reason us Juris, p. 1176, & 2700. In the notes under advanced showing the ruling as unsound. We this section will be found illustrations in our feel constrained to adhere to it. own and other jurisdictions..

[8, 9] One of the private prosecutors stated [4] An exception attacks the charge on the in his argument that the father of the appelissue of insanity on the ground that it is not lant had plenty of money with which to hire affirmative, and submits that issue alone in high-priced lawyers to defend him. This arthe negative form. The charge given follows gument was objected to, and a request made accurately that recommended by Judge Will- to instruct the jury to disregard it. The son in his work on Texas Crim. I'orms (4th failure of the court to respond to this request Ed.) p. 519. This form has been approved is made the basis of complaint. We are reby this court in many decisions which are ferred to the case of Sorrell v. State, 167 S. there cited. We regard the complaint of it W. 356, in support of this view. However, as not meritorious.

we do not regard the case as authority for [5, 6] The body of the deceased was found the proposition that the argument mentioned some days after he had been missed, and, requires a reversal of the judgment. In Soramong other facts describing the surround- rell's Case, the appellant's counsel told the ings, there was testimony that there were jury that they should not consider against some red ants around his head. There was the accused the fact that his father was rich. also testimony that “there was a hole in the The state's counsel then replied with an inground, four or five inches deep, where his flammatory appeal to the jury, in substance, feet went, and where the left band fell there that the wealth of the appellant's father enwas gravel all raked up along the arm." This abled him to surround himself with influentestimony was restricted by the court in both tial friends, and that "it has been said that a verbal and written charge to the question money could beat any case, and that the jury of the length of time intervening between should repel such accusation.” This arguthe death of the deceased and the time he ment was condemned in the opinion. There was found. From the appellant's confession, were many other reasons given for a reversal it appears that he and his companions, after of the judgment, however. The statement striking the deceased, put him in the locality embraced in the argument in the present case in which his body was found. It was there is one that, in our judgment, should not have fore competent for the state to corroborate been made. It was not within the scope of the confession by relevant evidence. Kugadt legitimate argument; neither was it of a V. State, 38 Tex. Cr. R. 690, 44 S. W. 989; character so material as, under the circumBranch’s Ann. Penal Code, $ 1049; 16 Corpus stances of the case, is to be calculated to inJuris, $ 1514; Wharton's Crim. Ev. vol. 1, 8 juriously affect the result. To cause a re325, and volume 2, § 633. The complete de- versal, the argument must not only be imscription of the deceased, the locality in proper, but of a material character, and calwhich he was found, the condition of his culated, under the circumstances of that parclothes, the condition of the ground where he ticular case, to injure the accused on trial. was lying-in fact, all circumstances tending See Willson's Crim. Proc. § 2321; Hardy v. to show the cause of his death, the time of State, 31 Tex. Cr. R. 292, 20 S. W. 561; Verhis death, and the place of his death-were non's Tex. Crim. Stat. vol. 2, p. 415; 16 Correlevant. The evidence in question, we think, pus Juris, p. 909, $ 2258; Moore v. State, 53

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