(248 S. W.) [1] Bill of exceptions No. 1 consists of 10 pages of questions and answers, and bill No. 10 of 27 pages in the same condition. We fail to observe any necessity for the bills to have been presented in that form, and must decline to consider them. Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Palmer v. State (Tex. Cr. App.) 245 S. W. 238; Reese v. State (No. 6806, opinion Nov. 29, 1922) 249 S. W. 857; Hickman v. State (No. 6890, opinion Dec. 20, 1922) 247 S. W. 518. Many authorities are collated in the two opinions last cited. 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 state's testimony, which was further to the effect that Thompson made no effort to secure the pistol until after he had been stabbed. Before giving substantially the testimony from the defendant's standpoint, we may state that the relations between the children of the two men were not pleasant. They had been quarreling and fussing, and it appears that rocks and clods had been thrown backward and forward among them. The substance of Mrs. Shirley's testimony is that early in the afternoon of the killing, while her husband was away from home, she heard some disturbance in the yard and heard deceased tell his little boy not to throw clods, but "throw rocks and knock hell out of him"; that she went to the door and called her children in the house; that about an hour and a half after this she went into her yard; that deceased was in his cow shed across the street; that he looked in her direction and exposed his person and shook it at her; that she returned to the house and telephoned to the officers; that later in the day she went to her door; and that deceased again from the same cow shed exposed his person to her and made vulgar motions. It was a sharply contested issue between the state and appellant as to whether it would have been possible for Mrs. Shirley to have seen deceased as she located him and herself except from the shoulders up. Mrs. Shirley continued her testimony to the effect that when her husband returned home she immediately informed him of deceased's conduct, at which he became very much disturbed and did not eat any supper. Bills Nos. 6 and 7 are also in questions and answers, but as the complaints made in each is because of an alleged insufficient predicate to admit impeaching testimony, there appears to be some excuse for the form in which they appear in the record. The objection was general, but we assume it was on the ground that the questions to appellant had not fixed the place or time of statements attributed to him. Both bills proceed on the theory that the evidence objected to was purely impeaching and therefore not receivable in the absence of strict compliance with the rule as to laying the predicate therefor. In this we think appellant is in error. The state was combating the truth of appellant's alleged reason for the killing, and insisting it came about because of the trouble between the children. The testimony of the two witnesses was admissible as original evidence to show appellant's state of mind · as bearing on a motive for the killing, and therefore the strict rule as to purely impeaching evidence does not apply. It was admissible without a predicate. night," because not made in appellant's presence. This in no way impinged on the selfdefense plea, and could not have affected it under any phase of the evidence. See collated authorities under section 1930, p. 1080, Branch's Ann. P. C. 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 of dope of some kind; that he saw deceased leave his home and go towards the store; that he followed him to the store hoping he would find out that deceased was intoxicated and did not realize what he had done. He claimed that immediately when he walked into the store deceased grabbed the pistol and whirled towards him with it, and that he grabbed the pistol and then stabbed deceased in self-defense. [3] The court committed no error in permitting Mrs. Thornberg to testify (bill No. 8) that on an occasion shortly before Thompson was killed, his and appellant's children were fussing, and she heard appellant tell his children to pick up a rock and knock the Thompson children in the head. It was killing was because of the children's quarrel and not the claimed insult to the wife. It will be seen from the foregoing narration of the defensive testimony that from his standpoint appellant raised the issues of self-pertinent to the state's contention that the defense, and of manslaughter predicated upon a killing at the first meeting after being informed of insults to his wife. The state's theory was that no such insulting conduct as claimed by Mrs. Shirley occurred, but that such claim was a fabricated defense, and that the real cause of the killing was because appellant was angry at deceased [4] No error is presented in bill of exceptions No. 9. Appellant had filed an application for suspended sentence. He had formerly lived at Kingsland in Llano county. The state could properly show that while there his general reputation as a peaceable law-abiding citizen was bad. Overby v. State |mony shows the deceased's acts to have 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 manJohnson v. State, 91 Tex. Cr. R. 582, 241 S. slaughter in the event the homicide occurred upon the first meeting of the defendant and the deceased." W. 484. [5] The court charged that manslaughter was voluntary homicide committed under the immediate influence of a sudden passion arising from an adequate cause but neither justified nor excused by law; further, that insulting words or conduct of the person killed toward a female relation of the party doing the killing would be deemed under the law adequate cause if the killing took place immediately upon the happening of the insult. ing conduct, or so soon thereafter as the party killing might meet with the party killed after having been informed thereof; further, that any condition or circumstance which was capable of creating, or did create, sudden passion rendering the mind incapable of cool reflection, was in law deemed adequate cause, and that where there were several causes to arouse passion, although no one might constitute an adequate cause, yet all of the causes combined might be sufficient to do so. He further instructed that in determining whether there was a provocation, and whether, if so, it was adequate cause under the law, the jury would look to all the facts and circumstances in evidence. The foregoing were general charges relative to the law of manslaughter. In applying the law to the facts the court charged as follows: "Now if you find and believe from the evidence beyond a reasonable doubt that the defendant cut and stabbed the deceased with a knife, and you further believe that at the time of so doing his mind was laboring under such a degree of anger, rage, sudden resentment, or terror as to render it incapable of cool reflection produced by any or all of the acts of the deceased toward the defendant, or by any words, coupled with the acts of the deceased, prior to and at the time of the killing, or from either the words spoken or acts done by the deceased, taken together or separately, and in connection with all of the other facts in evidence, constituted an adequate cause as same has been hereinbefore defined, and that while his mind was in such condition he cut and stabbed the deceased, from the effects of which the deceased did then and there die, then you will find the defendant guilty of the offense of manslaughter and assess his punishment at confinement in the state penitentiary for any term of years not less than two nor more than five in your discretion." In addition to the foregoing exception, appellant asked two special charges which were defective, in that they failed to take into account the state of appellant's mind at the time of the killing, but were to the effect that although the jury might not believe that deceased actually used insulting conduct towards appellant's wife, yet if they believed she reported to appellant that he had done so, and appellant believed it was true and killed deceased upon the first meeting after having been so informed, he could not be convicted of a higher offense than manslaughter. While these special charges, in the form requested, were properly refused, yet we believe in connection with the exception to the charge herein before quoted they were sufficient to call the court's attention specifically to the complaint being directed at the main charge. Appellant had a right to have his theory of manslaughter submitted to the jury from He claimed that the sole his standpoint. cause of him going to the store where the killing occurred was on account of the report his wife had made of the conduct of deceased, and waiving the question of self-defense, the issue of manslaughter should have been clearly submitted upon that state of facts untrammeled by its connection with other conditions, acts, or conduct on the part of de ceased. It will be observed that in apply: ing the law the court told the jury if all or any of the matters embraced were adequate cause, then appellant should be convicted only of manslaughter. He was entitled in the application of the law to a charge clearly and specifically telling the jury that if appellant's wife had informed him of insulting conduct on the part of decased towards her and believed the same to be true, and that the killing took place at the first meeting of the parties after appellant was so informed, and they believed the mind of appellant was laboring under such passion as to render it incapable of cool reflection, and that such passion arose from and grew out of the reported insulting conduct and caused the act of the accused and appellant was not acting in self-defense, then a con Among other objections filed to the charge viction could not be had for a higher grade we find the following: "Because the charge does not properly define the law of manslaughter, in that the same is a general charge and is not the law applicable to the facts peculiar to this case as shown by the record, for that the jury is not instructed that the exposition and display of deceased's person to the wife of the defendant, such as the testi of homicide than manslaughter. If the court believed from all the facts and circumstances in evidence it was proper or necessary to do so, he might have added a charge upon manslaughter based upon general conditions such as were incorporated in his main charge. A charge similar to the one given in this case was discussed in Squyres v. State (Tex. Tex.) TODD v. STATE Upon first con- the locality in which it was found, the comCr. App.) 242 S. W. 1024. sideration 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 clothes, the condition of the ground where he versal followed based upon the proposition was lying, all the circumstances tending to show To the same effect the cause, time, and place of his death, were heretofore discussed. will be found Hughes v. State (Tex. Cr. App.) relevant for purpose of corroboration. 244 S. W. 151. We do not discuss at length the authorities upon the point at issue, but many of them will be found collated in the two opinions cited. For the error pointed out, the judgment must be reversed, and the cause remanded. TODD v. STATE. (No. 6886.) (Court of Criminal Appeals of Texas. Jan. 31, 1923. Rehearing Denied Feb. 28, 1923.) 1. Criminal law 534(1), 1169(12)-Admission of evidence corroborating confession not error, but, if error, was cured by withdrawal. In a prosecution for murder, in which a written confession by the accused stated that before the offense the accused had been given money by another to buy gasoline, the admission of testimony by the seller of the gasoline that the man who gave the money to the accused paid for the gasoline for the purpose of corroboration was not error on the ground that there was an inference that the accused stole the money given him to buy gasoline, and the error, if any, was cured by the withdrawal of the statement from the jury. 2. Criminal law 930-Refusal to grant new trial because of demonstration of audience not an abuse of discretion. In a prosecution for murder, where the trial judge warned the spectators against making demonstrations, notwithstanding which the widow of deceased sobbed audibly during the argument before the jury, and was admonished, and then kept quiet, except for an occasional sob, the refusal of a new trial on account of such demonstrations was not an abuse of the discretion of the trial court. 3. Criminal law 930-Demonstrations by spectators not a ground for a new trial unless jury is prejudiced thereby. As a general rule demonstrations of the spectators present in court do not constitute a ground for a new trial unless it is probable that the jury was prejudiced thereby. 4. Homicide 294(1)—Exception to charge on insanity held without merit. In a prosecution for murder, an exception to a charge on insanity of the accused on the ground that it was not affirmative, and submitted the issue alone in negative form, held without merit. 5. Criminal law 534 (1)-Evidence of surrounding conditions held relevant in corrobaration of confession. In a prosecution for murder in which, according to a confession of the accused, after the deceased was struck, his body was put in 6. Criminal law 673 (2)—Limitation of evidence of condition of body of deceased held unnecessary, but not material error. In a prosecution for murder, in which the accused stated in a confession that after deceased 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 he was found, was unnecessary, but not material error. 7. Criminal law 858 (3)-Permitting jury to take confession with them in their retirement not error. Under Vernon's Ann. Code Cr. Proc. 1916, art. 751, authorizing a jury to take with them in their retirement any papers used in evidence, permitting a jury in a prosecution for murder to take with them in their retirement accused's written confession used in evidence was not error. 8. Criminal law 723(1), 1171(1) Argu ment that accused's father was able to hire high-priced lawyers for him held error, but not prejudicial. In a prosecution for murder, the argument by an attorney for the prosecution that the accused's father had plenty of money to hire high-priced lawyers to defend the accused was improper, but did not constitute prejudicial error. 9. Criminal law 1171(1)-To cause reversal, improper argument must be material, and calculated to injure accused. To cause a reversal, argument of counsel must not only be improper, but of material character, and calculated, under the circumstances of that particular case, to injure the accused on trial. 10. Criminal law 1156(5)—Overruling mption for new trial because of misconduct of jury not to be overturned on appeal unless clearly wrong. Overruling a motion for a new trial based on misconduct of the jury, which was controverted, will not be overturned on appeal, unless it be shown to be entirely wrong; the matter being one of discretion. 11. Criminal law 9252 (3)-Refusal of new trial for misconduct of juror not an abuse of discretion. Under Vernon's Ann. Code Cr. Proc. 1916, art. 837, subd. 7, authorizing a new trial where the jury has received other testimony after retiring to deliberate on a case, and subdivision 8, authorizing a new trial for misconduct of the jury which in the opinion of the court prevented a fair and impartial trial, in a prosecution for murder, overruling a motion for a new trial on the ground that a juror had stated that, if the courts performed their duty, there would be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes no excuse for mobs was not an abuse of the discretion of the trial court, such statement being merely an argument, and not new evidence. 12. Criminal law 1144 (8)-Ruling of trial court that juror was qualified presumed correct. In a prosecution for murder, where, after a juror was sworn, it was learned that he had written a letter of sympathy to the father and mother of the accused, and the prosecution tried without success to have him excluded from the jury, the trial court's decision that the juror was qualified will not be overturned on appeal unless clearly wrong in view of the presumption of correctness of the ruling. 13. Homicide 319-Refusal of new trial for newly discovered evidence held not an abuse of trial court's discretion. Under Vernon's Ann. Code Cr. Proc. 1916, art. 837, subd. 6, providing that new trials in felony cases shall be granted where new testimony material to the accused has been discovered since the trial, in a prosecution for murder, defended on the ground of insanity, overruling a motion for a new trial on the ground of newly discovered evidence as to insanity, where the witnesses could have been secured at the trial, and their testimony was only cumulative, was not an abuse of the discretion of the trial court. 14. Homicide 250-Evidence held sufficient to sustain conviction. deceased, James McNeal, with his consent, on the pretense that they wanted him to take them to a place on the road where they had a broken car, and that while in the automobile with McNeal, and while he was driving it, he (McNeal) was struck over the head by one or both of appellant's companions. Appellant, acting in concert with them, stopped the car, and the deceased was taken out and placed in a pasture near the road, where he 'was subsequently found and identified. Some $37 in money belonging to the deceased were taken from his pockets, and the appellant and his companions took possession of the car and drove it to Fort Worth, and afterwards hid it at a point not far distant from that city. In the confession the appellant described in detail his movements for several days antecedent to the homicide. He and Dawson had been together during the greater part of the time. He related in the confession places to which he had gone and acts that he had done and persons whom he had met, and such transactions as he had had with them. Among other things he related riding in an automobile with a man from Graham. On this subject, we quote the following from appellant's confession: And he carried us on the road to 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 Motion for Rehearing. 15. Criminal law 857 (2)-Statements made by jurors not misconduct requiring reversal of conviction. In a prosecution for murder, a statement made by a juror after the jury had retired to decide the case that, if the jury did not assess the death penalty, a mob would get the accused, and a statement by another juror that there were three persons involved in the killing and, if the death penalty was not assessed in this case, it would not be in the others, do not require reversal, being merely argumentative. 'Appeal from District Court, Parker County; F. O. McKinsey, Judge. on Clear Fork and he was not there, and I caught a car back to where the man was, and I told the man that the storekeeper was not there, and I went on to Weatherford with this don't remember his name; at Weatherford I man; he was a phone man of some kind, but I stopped at the Quick Service Garage and there talked to Tom McGill, and he went back with the gasoline." McGill was called as a witness for the state, and testified that the appellant came to him and said that a man some distance out on the road wanted three gallons of gasoline; that McGill took it to him, and the man paid him for it. That the man paid for it was objected to upon the claim that it carried with it an implication that appellant Wayne Todd was convicted of murder, and had stolen the dollar which the man gave he appeals. Affirmed. Hood & Shadle, of Weatherford, for appellant. R. G. Storey, Asst. Atty. Gen., and Preston Martin, of Weatherford, for the State. MORROW, P. J. The appellant was indicted for the murder of James McNeal, and upon his conviction the jury assessed against him the penalty of death.. [1] The state introduced in evidence the written confession of the appellant, in which he declared that he, in company with one Forrest Dawson and one McElhaney, in accord with a prearranged plan to commit robbery, got into an automobile driven by the him. It was competent for the state to corroborate by legitimate evidence the statement in the confession. We fail to gather from the confession the inference which appellant's objection suggests. However, inasmuch as the court withdrew from the consideration of the jury the statement by McGill that the man to whom he took the gasoline paid for it, we regard the bill as revealing no error. [2, 3] Bill No. 2, as qualified by the trial judge, shows that immediately before the argument, he was requested by appellant's counsel to warn the crowd present against any demonstration; that this was done; that in making the request no mention was made of the relatives of the deceased. During the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Tex.) (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 restråin herself or retire; that she did desist from audible weeping with the exception of an occasional sob, until recess time. At noon, the court called upon the relatives to prevent her from entering the courtroom if she could not control her feelings. This was done, and the widow made no further demonstration. As a general rule, matters of this kind are not regarded as a ground for a new trial unless it appears probable that through them the jury was prejudiced against the accused. In this case the demonstration was promptly suppressed by the trial court, and, considered in the light of the evidence, the court did not, in our judgment, abuse its discretion in refusing to grant a new trial. For similar instances, see 16 Corp us Juris, p. 1176, § 2700. In the notes under this section will be found illustrations in our own and other jurisdictions.. [4] An exception attacks the charge on the issue of insanity on the ground that it is not affirmative, and submits that issue alone in the negative form. The charge given follows accurately that recommended by Judge Willson in his work on Texas Crim. Forms (4th Ed.) p. 519. This form has been approved by this court in many decisions which are there cited. We regard the complaint of it as not meritorious. [5, 6] The body of the deceased was found some days after he had been missed, and, among other facts describing the surroundings, there was testimony that there were some red ants around his head. There was also testimony that "there was a hole in the ground, four or five inches deep, where his feet went, and where the left hand fell there was gravel all raked up along the arm." This testimony was restricted by the court in both a verbal and written charge to the question of the length of time intervening between the death of the deceased and the time he was found. From the appellant's confession, it appears that he and his companions, after striking the deceased, put him in the locality in which his body was found. It was therefore competent for the state to corroborate the confession by relevant evidence. Kugadt v. State, 38 Tex. Cr. R. 690, 44 S. W. 989; Branch's Ann. Penal Code, § 1049; 16 Corpus Juris, 1514; Wharton's Crim. Ev. vol. 1, § 325, and volume 2, § 633. The complete description of the deceased, the locality in which he was found, the condition of his clothes, the condition of the ground where he was lying-in fact, all circumstances tending to show the cause of his death, the time of his death, and the place of his death-were relevant. The evidence in question, we think, [7] The bill of exceptions complaining of the action of the court in permitting the jury to take with them in their retirement the written confession made by the appellant and introduced in evidence, we think, is without merit. Article 751 of Code Cr. Proc., in terms, authorizes the jury to take with them in their retirement "any papers used in evidence." The statute has been construed upon a number of occasions. See White's Ann. P. C. § 873; Vernon's Tex. Crim. Stat. vol. 2, p. 566. In Holder v. State, 81 Tex. Cr. R. 195, 194 S. W. 162, based upon precedents there cited, the statute was construed to embrace the We are written confession of the accused. aware of no precedent to the contrary. None has been cited, nor has there been any reason advanced showing the ruling as unsound. We feel constrained to adhere to it. The [8, 9] One of the private prosecutors stated in his argument that the father of the appellant had plenty of money with which to hire high-priced lawyers to defend him. This argument was objected to, and a request made to instruct the jury to disregard it. failure of the court to respond to this request is made the basis of complaint. We are referred to the case of Sorrell v. State, 167 S. W. 356, in support of this view. However, we do not regard the case as authority for the proposition that the argument mentioned requires a reversal of the judgment. In Sorrell's Case, the appellant's counsel told the jury that they should not consider against the accused the fact that his father was rich. The state's counsel then replied with an inflammatory appeal to the jury, in substance, that the wealth of the appellant's father enabled him to surround himself with influential friends, and that "it has been said that money could beat any case, and that the jury This argushould repel such accusation." ment was condemned in the opinion. There were many other reasons given for a reversal The statement of the judgment, however. embraced in the argument in the present case is one that, in our judgment, should not have It was not within the scope of been made. legitimate argument; neither was it of a character so material as, under the circumstances of the case, is to be calculated to injuriously affect the result. versal, the argument must not only be improper, but of a material character, and calculated, under the circumstances of that particular case, to injure the accused on trial. See Willson's Crim. Proc. § 2321; Hardy v. State, 31 Tex. Cr. R. 292, 20 S. W. 561; Vernon's Tex. Crim. Stat. vol. 2, p. 415; 16 Corpus Juris, p. 909, § 2258; Moore v. State, 53 To cause a re |