DAVIDSON, Judge.
Appellant was convicted of manslaughter and his punishment assessed at three years confinement in the State penitentiary. A motion to change the venue was made by appellant, based upon both grounds of the statute. Code Crim. Proc., art. 578.
The facts alleged.to support the theory of combination consist of resolutions passed by a Masonic lodge situated in the town of Burnet, [125]*125of which lodge deceased was a member. The resolutions were commemorative of the many virtues of the deceased, and were published in a newspaper that was printed in Burnet, which paper had a circulation of about 900 subscribers. The lodge had a membership of sixty-five. The resolutions were very laudatory of the virtues of the deceased. The appellant swears in his affidavit that “he can not know certainly the extent or influence of said resolutions and can not foresee their effect, but he does believe that since their publication a prejudice has been expressed against him by very many men which did not exist before.” His compurgators are Samuel W. Tate, John C. Tate, J. H. Andrews, and J. P. Nobles.
The State controverted the application, which was in proper and legal form as required by the statute. Willson’s Crim. Stats., secs. 2209, 2210. It is shown thereby that Samuel W. Tate is the father-in-law of appellant and was the father-in-law of deceased also; that John C. Tate is the brother-in-law of appellant; that J. H. Andrews is related by marriage to appellant, and the son of appellant married the daughter of J. P. Nobles.
The counter-affidavit also attacks the means of knowledge of these compurgators by showing that their residence in the county and acquaintance with the citizens thereof are not such as to qualify them to speak in the matters whereof they depose.
We here reproduce all the evidence set out in the bill of exceptions bearing on the resolutions of the Masonic lodge and adduced on the trial of the issues involved in the motion to change the venue:
William M. Spittler testified that the Burnet Bulletin was circulated in every postofftce in the county. I saw the resolutions set out in the application when published in the Burnet Bulletin.
R M. Smith: The circulation of the Burnet Bulletin was about 800, and went to every postoffice in the county.
William M. Spittler, recalled and cross-examined: The resolutions were not published by order of the lodge. It is a custom to pass resolutions upon the death of a member. If there is any combination in the lodge I don’t know of it. This lodge was organized in 1854. A committee prepared the resolutions. The lodge did not order the publication. Don’t know who wrote them. Resolutions generally are published.
Re-exámined: Three copies of the resolutions like those set out in the application were made. One was sent to Mrs. Phillips by mail. It never reached her, and a second copy was prepared and sent to her by hand. I have the third copy. The second copy was sent by hand two or three weeks before they were published.
J. A. Stevens: I was publisher of the Burnet Bulletin at the time the resolutions in the application for change of venue were published. The circulation was 900 in the county. J. T. Halford brought me the [126]*126' resolutions. This is the man who made the controverting affidavit. I think the defendant could get a fair trial in the county.
The only evidence contained in the bill of exceptions with reference to the relation of the Masonic lodge to the combination against the defendant was that of Spittler, and he testified that he knew of no such combination. The resolutions were not offered in evidence in support of the issues involved in the application to change the venue, nor does it form any part of the statement of facts embodied in the bill of exceptions reserved to overruling the motion. When the issue has been joined the burden of proving the existence of the cause or causes for the removal of the case on change of venue is upon the defendant. Davis v. The State, 19 Texas Ct. App., 222; Carr v. The State, 19 Texas Ct. App., 635; Pierson v. The State, 21 Texas Ct. App., 14.
Hone of the witnesses produced testified that appellant could not get a fair trial in the county, nor did any of them testify as to the alleged combination against defendant.
In most of the cases found in our reports, when the change of venue was refused the order refusing same was predicated upon a conflict of evidence as to whether the cause did or did not exist; but in this case the order refusing to change the venue was predicated upon evidence showing that the ground did not exist for such a change. The resolutions were not adduced in evidence on the trial of the issues raised by the motion and the contest thereto, and are not embodied in the bill of exceptions as evidence. Therefore the said resolutions can not be considered by us. Our statute provides that “the order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in a bill of exceptions, prepared, signed, approved, and filed at the term of the court at which such order was made. Code Crim. Proc., art. 584; Bowden v. The State, 12 Texas Ct. App., 246; Blackwell v. The State, 29 Texas Ct. App., 198.
The fact that the resolutions are attached to and form a part of the motion itself does not authorize this court to consider it as evidence adduced in support of the motion. But if the resolutions had been incorporated in the bill of exceptions as evidence, we would still be of the opinion that the court did not err in overruling the motion. We do not understand that resolutions passed by secret societies simply and only commemorative qf the virtues of their deceased members are necessarily indicative of combinations formed against parties charged with crime as a means of preventing them from obtaining a fair trial in the courts of the country.
It was proved to have been the custom of the Masonic lodge to pass such resolutions and publish them, but in this instance the lodge did not publish the resolutions. To meet the statutory requirement the defendant should have shown that there was .a dangerous combination [127]*127against him, instigated by influential persons, by reason of which he could not expect a fair trial. Code Crim. Proc., art. 578. Defendant ■ offered no proof to sustain this cause or ground set up in his motion. The courts are not permitted to go outside the statute in search of reasons for changing venue when the motion is made for that purpose. In so far as the combination on the part of the lodge was concerned the evidence disproves it.
The facts adduced upon the trial of the cause, if we consider same from the standpoint of the verdict, strengthens the conclusion that there was neither prejudice nor combination against the defendant. If the State’s theory and testimony were correct, the killing was murder, and not manslaughter.
About a week before the killing Mrs. Lacy testified that she had promised an assignation with the deceased, to be' consummated on the day of the killing at the place of the homicide. On Monday morning preceding the killing, about four days after the agreement between his wife and deceased was entered into, the defendant went to the town of Burnet.
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DAVIDSON, Judge.
Appellant was convicted of manslaughter and his punishment assessed at three years confinement in the State penitentiary. A motion to change the venue was made by appellant, based upon both grounds of the statute. Code Crim. Proc., art. 578.
The facts alleged.to support the theory of combination consist of resolutions passed by a Masonic lodge situated in the town of Burnet, [125]*125of which lodge deceased was a member. The resolutions were commemorative of the many virtues of the deceased, and were published in a newspaper that was printed in Burnet, which paper had a circulation of about 900 subscribers. The lodge had a membership of sixty-five. The resolutions were very laudatory of the virtues of the deceased. The appellant swears in his affidavit that “he can not know certainly the extent or influence of said resolutions and can not foresee their effect, but he does believe that since their publication a prejudice has been expressed against him by very many men which did not exist before.” His compurgators are Samuel W. Tate, John C. Tate, J. H. Andrews, and J. P. Nobles.
The State controverted the application, which was in proper and legal form as required by the statute. Willson’s Crim. Stats., secs. 2209, 2210. It is shown thereby that Samuel W. Tate is the father-in-law of appellant and was the father-in-law of deceased also; that John C. Tate is the brother-in-law of appellant; that J. H. Andrews is related by marriage to appellant, and the son of appellant married the daughter of J. P. Nobles.
The counter-affidavit also attacks the means of knowledge of these compurgators by showing that their residence in the county and acquaintance with the citizens thereof are not such as to qualify them to speak in the matters whereof they depose.
We here reproduce all the evidence set out in the bill of exceptions bearing on the resolutions of the Masonic lodge and adduced on the trial of the issues involved in the motion to change the venue:
William M. Spittler testified that the Burnet Bulletin was circulated in every postofftce in the county. I saw the resolutions set out in the application when published in the Burnet Bulletin.
R M. Smith: The circulation of the Burnet Bulletin was about 800, and went to every postoffice in the county.
William M. Spittler, recalled and cross-examined: The resolutions were not published by order of the lodge. It is a custom to pass resolutions upon the death of a member. If there is any combination in the lodge I don’t know of it. This lodge was organized in 1854. A committee prepared the resolutions. The lodge did not order the publication. Don’t know who wrote them. Resolutions generally are published.
Re-exámined: Three copies of the resolutions like those set out in the application were made. One was sent to Mrs. Phillips by mail. It never reached her, and a second copy was prepared and sent to her by hand. I have the third copy. The second copy was sent by hand two or three weeks before they were published.
J. A. Stevens: I was publisher of the Burnet Bulletin at the time the resolutions in the application for change of venue were published. The circulation was 900 in the county. J. T. Halford brought me the [126]*126' resolutions. This is the man who made the controverting affidavit. I think the defendant could get a fair trial in the county.
The only evidence contained in the bill of exceptions with reference to the relation of the Masonic lodge to the combination against the defendant was that of Spittler, and he testified that he knew of no such combination. The resolutions were not offered in evidence in support of the issues involved in the application to change the venue, nor does it form any part of the statement of facts embodied in the bill of exceptions reserved to overruling the motion. When the issue has been joined the burden of proving the existence of the cause or causes for the removal of the case on change of venue is upon the defendant. Davis v. The State, 19 Texas Ct. App., 222; Carr v. The State, 19 Texas Ct. App., 635; Pierson v. The State, 21 Texas Ct. App., 14.
Hone of the witnesses produced testified that appellant could not get a fair trial in the county, nor did any of them testify as to the alleged combination against defendant.
In most of the cases found in our reports, when the change of venue was refused the order refusing same was predicated upon a conflict of evidence as to whether the cause did or did not exist; but in this case the order refusing to change the venue was predicated upon evidence showing that the ground did not exist for such a change. The resolutions were not adduced in evidence on the trial of the issues raised by the motion and the contest thereto, and are not embodied in the bill of exceptions as evidence. Therefore the said resolutions can not be considered by us. Our statute provides that “the order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in a bill of exceptions, prepared, signed, approved, and filed at the term of the court at which such order was made. Code Crim. Proc., art. 584; Bowden v. The State, 12 Texas Ct. App., 246; Blackwell v. The State, 29 Texas Ct. App., 198.
The fact that the resolutions are attached to and form a part of the motion itself does not authorize this court to consider it as evidence adduced in support of the motion. But if the resolutions had been incorporated in the bill of exceptions as evidence, we would still be of the opinion that the court did not err in overruling the motion. We do not understand that resolutions passed by secret societies simply and only commemorative qf the virtues of their deceased members are necessarily indicative of combinations formed against parties charged with crime as a means of preventing them from obtaining a fair trial in the courts of the country.
It was proved to have been the custom of the Masonic lodge to pass such resolutions and publish them, but in this instance the lodge did not publish the resolutions. To meet the statutory requirement the defendant should have shown that there was .a dangerous combination [127]*127against him, instigated by influential persons, by reason of which he could not expect a fair trial. Code Crim. Proc., art. 578. Defendant ■ offered no proof to sustain this cause or ground set up in his motion. The courts are not permitted to go outside the statute in search of reasons for changing venue when the motion is made for that purpose. In so far as the combination on the part of the lodge was concerned the evidence disproves it.
The facts adduced upon the trial of the cause, if we consider same from the standpoint of the verdict, strengthens the conclusion that there was neither prejudice nor combination against the defendant. If the State’s theory and testimony were correct, the killing was murder, and not manslaughter.
About a week before the killing Mrs. Lacy testified that she had promised an assignation with the deceased, to be' consummated on the day of the killing at the place of the homicide. On Monday morning preceding the killing, about four days after the agreement between his wife and deceased was entered into, the defendant went to the town of Burnet. While there he secured a gun, and was heard to remark, “I am getting tired of this; I have stood it as long as I can.” On Tuesday he returned, and on Wednesday he went to the place of assignation with his gun procured in Burnet and secreted himself from view, and as deceased was riding along the fence, shot and killed him. He at once went to his nephew, George Whitman, and informed him that he had killed the deceased because he had been attempting to seduce his wife, and had been for two or three years.
The above illustrates the theory of the State that the homicide was upon malice. To meet this the defendant put his wife on the stand, and by her proved that deceased had been attempting her seduction for some time; that about two weeks before the homicide she had consented to an assignation with deceased, but did not fulfill it. That deceased upbraided her for such failure, and that she again consented to an assignation with deceased to occur at the time and place of the homicide. This she did not communicate to her husband until the morning preceding the killing in the evening. Acting upon this, defendant armed himself and went to the place of assignation, secreted himself, and when deceased came near to him he shot and killed him. The State’s theory was murder, while defendant’s was manslaughter based upon the insulting conduct toward his wife and the attempts at her seduction. The jury accepted this theory and convicted him of the offense of manslaughter. If, then, the verdict is looked to, we find that it strongly indicates that there was neither prejudice nor a combination formed against appellant.
From any angle of view, we do not see that error was committed by the court in refusing to change the venue. The granting or refusing [128]*128the application rested in the sound discretion of the trial court, and on appeal the action of said court upon such application will not be revised unless it should appear that said discretion has been abused. Martin v. The State, 21 Texas Ct. App., 10; Pierson v. The State, 21 Texas Ct. App., 14; Scott v. The State, 23 Texas Ct. App., 521; Meuly v. The State, 26 Texas Ct. App., 274.
A special instruction was requested submitting the law of insanity to the jury, but it was refused. We do not understand from the facts that the question of insanity is in this case. Mrs. Lacy’s evidence is the only evidence that it is contended tends to raise that issue. She testified, that “On the day of the killing and before the killing I told my husband of my troubles. He then seemed nearly crazy. I told him of the place, and went part of the way and showed him. He was. restless all day. I told him the hour of meeting was about 4 o’ clock. Prior to the hour of meeting I went in the other direction with my children. The day I told defendant he was restless and moved about uneasily. I never saw him act so before, and we lived together a longtime. Generally when at home he would read or play with the children. That day he was silent; did not read nor notice the children. At dinner he ate nothing but a mouthful or so. After dinner my husband was sitting on the porch with his children. I don’t know how long he sat there.” He left the porch about 3 p. m., got his gun, went off to the place of the homicide, sat in ambuscade for about one and a half hours until deceased rode up, when he shot and killed him.
This testimony was offered for the purpose of showing “passion” produced by the “adequate cause” in order to reduce the homicide from murder to manslaughter. This evidence does not raise nor suggest the theory of insanity. Weigh it as strongly as possible as an exciting cause to the mind, it does not present any theory which could be held to raise the question of insanity, or a theory which a reasonable mind could entertain as remotely calculated to destroy the State’s case when considered in connection with the other testimony in the case, or that would produce the conclusion that defendant was irrational or was in a condition not to know right from wrong. This evidence does not show that the defendant did not know the nature and consequences of his acts or what he was doing, and that it was wrong.
We fail to find the slightest evidence of insanity on the part of defendant. On the contrary, every act of his indicated fully that he was conscious of what he was doing and going to do, and fully prepared himself for the execution of his plans and executed them with his characteristic and usual intelligence. The court did not err in refusing the special instructions asked.
The motion for continuance was properly overruled. The evidence set out therein as expected to be proved was neither material nor probably true.
[129]*129Finding the errors assigned not well taken, the judgment is in all things affirmed.
Affirmed.
Judges all present and concurring.'
I agree to this opinion, because the resolutions were not embraced in the bill of exceptions reserved to the action of the court in overruling the motion to change the venue. j ^ ju¿ga