BBOOKS, Judge.
Appellant was convicted of murder in the first degree, and his punishment assessed at life imprisonment in the penitentiary.
1. Bill of exceptions Ho. 1 was reserved to the action of the court in refusing first application for continuance for want of the testimony of Mrs. Freda Boberts, by whom defendant expected to prove that he was at witness’ house for a week or more just preceding ■ the homicide, and that during such time she had ample opportunity to observe defendant’s actions, and that his actions were as set out in defendant’s application for continuance, and showed his lunacy. Defendant’s counsel was not aware of the materiality of said witness’ testimony until the day the application for continuance was made, and too late to issue process to compel her attendance, and furthermore, if process had been issued, witness’ attendance could not have been procured because of her serious sickness, she being confined to her bed following a surgical operation, and physically unable to appear in court as shown by doctor’s certificate. On materiality appellant suggests the following: Because said witness was material as an eyewitness to the conduct of defendant tending to prove his lunacy, which was the sole defense in this ease, and the facts expected to be proven by such witness immediately, preceded the killing, and said witness had opportunity to observe fully his conduct, and actions during defendant’s stay in Houston, Texas, which immediately preceded the killing on the return to Corsicana, and the court overruled the application with this explanation: “That there was absolutely no diligence shown on part of defendant to secure this witness. No process of any kind was asked for or issued for witness. And, in view of the evidence developed upon the trial of the case the facts sought to be proved are not probably true.” In the first place, the application does not affirmatively show what was expected to be proved by the witness. The application shows a mere conclusion in that it says that the witness had noted the conduct of the defendant tending to prove his lunacy. What it was or what she would swear to that tended to prove it is
not shown in the application. Furthermore, the testimony is not probably true, as suggested by the court, in the light of this record, since the same shows a cruel and wanton killing by a party who was thoroughly possessed of all of his senses, and there is scarcely a suspicion raised by legal evidence to the contrary.
2.
Bill of exceptions ¡No.
2
shows that appellant complains that someone had sent to the courtroom and placed on the attorneys’ table and in front of the jury and in their full view a coil of rope, with a card attached thereto from the sender, on which was written a message to the effect that said rope was sent for the purpose of aiding the county of ¡Nfavarro in the escape of those confined in jail. That the defendant was and had been confined in jail without bond on the charge of murdering Mrs. Belle ¡NIx, a woman, and the only conclusion that could be drawn from the sending of said rope, and from the rope itself, was that the jury in the case was urged to bring in a verdict of guilty with the death penalty, and the only effect said message and said rope could have was that it prejudiced the defendant’s case with the jury and created a subconscious belief that the public were clamoring for a verdict of death. The court appends to the bill of exceptions this qualification: “The facts of this incident are as follows: Rev. Mulkey (who charges himself with being a huge practical joker, and the court thinks he really believes the charge to be true), intending to perpetrate a practical joke upon the county judge and county Commissioners Court, because • of recent escapes from the jail of ¡Navarro County by prisoners by means of blankets, which they tore into strips and tied together to let themselves down out of the upper story of the jail, procured a coil of rope, prepared and attached to the rope a neat card, on which was written these words: 'To the County Court of ¡Navarro County. An Escape For -The Jail. Compliment of ABE MULKEY, A Humanitarian.’ This rope, thus tagged, Rev. Mulkey placed in the hands of a negro man, with instructions to carry it to the County Court room, and lay it at the feet of the county judge, without explanation. The County Court room and the District Court room were adjoining, being only separated by a brick wall. The negro brought the rope into the District Court room by mistake, and placed it on the table used by attorneys in front of the jury and reasonably near to them and to the defendant, J. P. Lane. ¡Nothing was said. As soon as the rope was discovered, the court in an undertone ordered the sheriff to get the rope and bring it to the court’s desk, and to attract no one’s attention in doing so. The sheriff obeyed and attracted no one’s attention that I could observe. I think very few noticed the incident, and no comment was made upon it that I ever heard of. If it was even noticed by the jury, the court is not aware of it, and the court knows that the jury never saw or knew of the message written upon the card.
“The court with some pleasure disavows entire responsibility for
any action of the Rev. Abe -, and particularly for this caper. Surely the incident complained of did not outweigh the overwhelming evidence of defendant’s guilt produced upon this trial, and become the means of influencing and procuring the jury to convict the defendant. Surely this verdict is founded upon the sound, yet lenient, judgment of the jury when considering of the evidence adduced before them on this trial, rather than upon the incident referred to.”
Under the explanation of the court we do not believe there was any prejudicial error presented by this matter, nor do we think the matter ever reached the offensive phase suggested by the bill of exceptions.
3. Bill of exceptions No. 3 shows the veniremen in the cause were in court and heard the application for a continuance made by defendant on account of the absence of the witnesses, Max Roberts and Freda Roberts, and also heard what transpired as hereafter detailed. Upon presenting the 'application for continuance on account of the absence of said witnesses, the court announced he would communicate with the sheriff of Harris County, where said witnesses resided to see if the attendance of said witnesses could be procured, whereupon M. Dorenfield, a son-in-law of defendant, left the courtroom and communicated by long distance phone with Max Roberts, one of said witnesses, and returned into court and stated to his wife, who was defendant’s daughter, according to the contention of the State, but contrary to his own “that the case would be continued, because he had instructed said witness not to attend,” which statement was overheard by one.of the attorneys for the State prosecuting the cause, and thereupon in the presence of the veniremen, from which the jury in the case was afterwards chosen, the said M. Dorem field was put upon the stand and questions were propounded to him attempting to elicit from him an admission that he had instructed said Max Roberts not to attend as a witness, all of which he denied, but stated he had only inquired for the benefit of hjs wife, who was sick, whether said witness was able to attend court, nevertheless the court announced to him he must remain in court and must report therein on the following morning, thereby virtually putting him under arrest, and thereby indicating that said Dorenfield was interfering with the administration of justice in the case and thereby prejudicing defendant’s cause by indicating his son-in-law was interfering with the administration of justice therein, and thereby compelling defendant to answer for the illegal act, if any, of his son-in-law, which tends to deprive and did deprive defendant of an impartial trial. This bill is approved with this explanation: “The incident of Dorenfield’s conduct attracted very little attention. Every single veniremen and juror examined by the defendant’s counsel, and accepted in the case, in fact, swore, in response to the direct question, that the incident of the conduct of Dorenfield and his
examination with reference thereto did not influence and would not influence him, and each such juror expressly declared upon his oath at that time that such incident and examination would be by him entirely eliminated from the trial of the case. Both the court and others present preserved a written note of the testimony of each juror, as above detailed, and the fact of their so testifying will not be disputed by the defendant or his counsel. That the examination of Dorenfield took place at a time when the court was at ease and before the motion for continuance was overruled. No remark nor any conduct óf the court, at the time, could have been construed into an arrest of Dorenfield. The court took particular pains not to let any idea of what course would be taken with reference to Dorenfield’s conduct become known. Without show of feeling or displeasure the court requested Dorenfield to remain in the court until he was discharged. Dorenfield went and came as he pleased during the further progress of the trial. And not until the case was ended, and the verdict was actually rendered, did anybody know that the court proposed to punish Dorenfield for contempt.” This bill shows that appellant sought a continuance for Max Roberts and his wife, whereas the bill of exceptions reserved to the overruling of application for continuance merely relates to the wife. We note from an examination of the record that Max Roberts testified. Now, reverting to the bill, we will say, it presents no matter authorizing a reversal of this case. The parties were examined upon their voir dire with relation to the incident, and the party was not fined until after the trial was over. The jurors all answered it would not influence them in making up a verdict under this sworn statement of theirs. Appellant took them upon the trial of this case. This being the condition, we do not think there was any error suggested.
4. Bill of exceptions No. 4 shows that while the witness J. W. Scott, for the defense, was testifying as to the mental condition .of appellant, on cross-examination by the State, he was asked how he determined defendant’s insanity, and, among other things, said, because his eyes were contracted, unnatural and indicated insanity, whereupon the State caused him to examine, in the presence of the jury, defendant’s eyes, and state whether or not they were then in the same condition as they were when he had examined them before, whereupon said witness testified defendant’s eyes did not now indicate insanity as they had done at' other times when he had observed them out of the courthouse and prior to the killing. _ Appellant objected to this procedure on the ground that it was compelling defendant to testify against himself; because the mental condition of defendant at the trial would not establish his lunacy at the time of the homicide. The court approves this bill with this statement: “Witness Scott was introduced by defendant, and testified that one reason why he thought defendant’s mind was not right was because upon one occasion witness noticed the pupils of his eyes were con
tracted. State’s counsel asked witness how defendant’s eyes compared at the time of trial with their condition at the time he referred to. Witness being an aged man and his own eyesight being impaired, he had to go to defendant in order to see clearly. It was under this condition of circumstances that witness was permitted to examine the eyes of the defendant.” This question was decided against appellant in the case of Burt v. State, 38 Texas Crim. Rep., 397; also Tubb v. State, 55 Texas Cr. Rep., 606. There this court held that the demeanor and appearance of the defendant during the trial can be proven as a circumstance to indicate his sanity or insanity. This proposition of law has been also reannounced by this court since the rendition of the above cited case.
5. Bill of exceptions No. 5 shows the State offered the dying declarations of Mrs. Belle Nix, the person killed by appellant, and appellant objected to the following statement therein, to wit: “He always seemed to hate me because momma looked up to me. He did not like for me to come 'home- on a visit, and always had it in for me.” Counsel for appellant objected, first, because such statement did not go to facts res gestae, but was a recital of facts not connected with the killing; second, because such statement was a conclusion of the witness; and, third, because such character of testimony can not be proved by a dying declaration when defendant has no power to cross-examine, but same is an ex' parte statement of pre-existing matters arising prior to the homicide, and formed no part of the facts of the'killing. All dying declarations are ex parte, and very seldom is the defendant authorized to cross-examine. A dying declaration usually occurs when the defendant is not present. The statement is Certainly part of the res gestae of the facts stated, and is certainly not a conclusion of the witness that is precluded from being testified to. If this witness had been living she certainly could have given the reason why appellant shot her. If this witness had stated that appellant shot her because he was jealous of her mother’s love for the witness or that appellant killed her because the mother loved deceased better than she did appellant, this could be criticised on the ground of being a conclusion as well as the statement made by the witness. This court has held where, the deceased in a dying declaration states, “He killed me for nothing,” that said statement is admissible. Then clearly the above statement is equally admissible. To say that the defendant killed the deceased for nothing is a conclusion from pre-existing facts. This could not be construed as being more than a conclusion from pre-existing facts, or, as the books frequently put it, a shorthand rendering of the facts. We do not think that the court erred in admitting this portion of the dying declaration.
6. Bill of exceptions No. 6 shows the State proved by E. N. Hanks that he was deputy sheriff, and had appellant under arrest for carrying a pistol, and had taken him' before a justice of the peace,
and while defendant was under arrest and in custody of the Justice Court, and in charge of said E. H. Hanks, defendant said: “Miss Belle (meaning Mrs. Belle Hix, whom he afterwards killed), the damn bitch, was the cause of all this trouble.” Appellant objected to the statement because the defendant was under arrest, and had not been warned. The court overruled the objection, and the bill is approved with this statement by the court: “The incident testified to by witness Hanks Occurred some weeks prior to the crime charged in this case. Defendant was under arrest for carrying a pistol, and was in the Justice Court room; and the pistol carrying charge had been disposed of by defendant pleading guilty to a disturbance of the peace in said Justice Court; there being evidence that the defendant had just bought the pistol and was carrying it home. The testimony was material and pertinent on the issue of motive for the killing.” As we understand this explanation appellant was not under arrest, but had pleaded guilty and been discharged at the time the statement was made that appellant complained of. Furthermore', the testimony was admissible to prove motive for the homicide, even if appellant was under arrest.
7. Bill of exceptions Ho. 7 shows that the State introduced J. T. Bedden, and was attempting to prove by said witness that the motive which inspired defendant to kill Mrs. Belle Hix was because defendant was indolent and worthless and wanted his wife to sell'her property and turn over the money to him, and Mrs. Belle Hix was using her influence against this course, which enraged defendant, and during the examination of said witness, after asking him if defendant had a business or worked anywhere, and receiving a negative' answer, State’s counsel then asked said witness, “Did defendant ever work anybody?” to which counsel for appellant objected for the following reasons: First, because said question tended to elicit facts that were inadmissible; second, because said question was asked for the sole purpose of bringing defendant into disrepute before the jury upon matters not connected with the trial and thereby prejudice him in the minds of the jury; and, third, because the court failed to reprimand the State’s attorney or to instruct the jury to not consider same. This bill is signed with this explanation: “The question when asked by State’s counsel was objected to by defendant, and the objection was sustained by the court. The-witness did not answer the question, and the court at the instance of defendant’s counsel instructed the jury not to consider the fact that the question was asked by State’s counsel.” This was all that could be' done in the premises by the court to protect appellant’s rights, and we do not think there was any error authorizing a reversal of this case in asking the question.
8. Bill of exceptions Ho. 8 shows the State proved by the witness John Hutt that he was a policeman, and had defendant under arrest for carrying a pistol, and that he turned Mm over to Deputy Con
stable E. F. Hanks, and that while witness had custody of defendant the latter stated to him: “That was Belle’s doings (meaning Mrs. Belle Fix, whom he afterwards killed); damn her, she ought to be killed.” This testimony was admissible as indicated above.
9. Bill of exceptions Fo. 9 shows that appellant offered to prove by the witness Mcllvany that he had known the defendant fifteen or sixteen years, and had had more or less intimate knowledge of him for the last three or four years, and that from such knowledge he did not believe defendant could think consecutively, and that he did not think defendant had mental strength enough to form and plan a design to take life and carry same out, and that said witness Mcllvany, if permitted by the court, would have so testified, to which counsel for the State objected for the following reason, to wit: Because the test of lunacy' was the knowledge of right and wrong, and that if such knowledge was possessed by defendant he would be guilty of murder in the first degree if the facts premeditation and design and malice could be proven, notwithstanding defendant’s weak mental condition incapacitating him to make and carry out a plan. The court signs the bill with the statement that witness was not a doctor, nor expert in diseases of the mind. And question was leading, and also called for expert opinion. We think the ruling of the court was correct.
10. Bill of exceptions Fo. 10 shows the State sought to impeach the witness T. P. Little while on the stand at defendant’s instance by laying the predicate so to do by asking him questions to show that he had called Melvin Weaver and Dora Jackson aside at different times, both of whom were connected by marriage with Mrs. Belle Fix, whom defendant killed, and told each of them he had been a witness on the trial of defendant for insanity, and had sworn on the stand on that trial he had never heard defendant say anything derogatory to Mrs. Belle Fix, deceased, but in truth and in fact he had heard him so say, but would go to jail before he would so testify because of his personal regard for said Weaver and said Jackson. Appellant objected to this effort on the part of the State, because by such evidence the State was attempting to prove the substantial facts that defendant had made derogatory remarks about Mrs. Belle Fix, whom defendant afterwards killed, to furnish a motive for his acts, and such substantial facts could not be proven by impeachment of a witness; and because such evidence was immaterial and was introduced only to prejudice defendant with the jury, and the court overruled the objections, and appellant excepted. This bill is approved with this statement: “Witness Little was placed on the witness stand by defendant, and had testified in his behalf, and also that he knew of no animosity on part of defendant against deceased. State’s counsel asked him if he had not told the witnesses Weaver and Jackson that he did know of such feeling on the part of defendant against deceased, but he would go to jail rather than
tell it on this trial. The witness Little admitted that he had told each of the parties the statement attributed to him. The issue of whether there was motive for the killing was material, and particularly so in view of the defense of insanity, which was defendant’s defense in this case. Hence, it was legitimate for the State to impeach the witness’ testimony if it could do so; and the question was proper to lay predicate for such impeachment.” We think, under the explanation of the court, the ruling was correct.
11. Bill of exceptions No. 11 shows that the State was permitted to prove by several doctors that they were appointed as a lunacy commission by the District Court of Navarro County, during the pendency of this trial to examine the defendant as to his mental condition, and that acting under such appointment they proceeded to the county jail of Navarro County, in which defendant was held without bond and by observation, and by question and answer put defendant through an examination lasting about two hours, and from such observation and from the answers made by defendant to their questions they believed defendant was sane, to which counsel for defendant objected, because defendant was under arrest at the time, and by appointment of the court each of said witnesses became an officer of the court, and the defendant had not been warned before or during his examination that - his answer would be used against him.. This bill is approved with this statement by the court: “When this case was called for trial the defendant demanded that he be first tried on the issue of his sanity or insanity. This was done, and the jury returned a verdict that he was sane. Defendant by proper motion in writing prayed the court to appoint a lunacy committee, to be composed of three of the most eminent physicians in Navarro County, to inquire into and report upon the question of his sanity. This request was granted, and Dr. Fryar, Dr. Suttle and Dr. Helton were named, and committee thus formed was submitted to defendant’s counsel for approval, and approved by both defendant and State’s counsel. Then the lunacy committee was appointed, sworn and instructed to proceed as they saw fit, make such investigation as they deemed wise and proper, to take whatever time for their investigations they wished, and when their. labors were completed, to report their findings to the court. Each of these doctors were permitted to testify, in rebuttal to the evidence of defendant’s defense of insanity, that he had personally examined defendant, talked to him at length, ascertained all they could about his mental condition, etc., and swore that defendant was sane at the time of the killing óf deceased. .Neither was permitted to repeat any statement made to him by the defendant. The court then instructed the jury that this evidence could be considered by them only upon the issue of the sanity or insanity of defendant. This testimony was clearly admissible. Cannon v. State, 41 Texas Cr. Rep., 467.
13. Bill of exceptions No. 13 shows that John Curington, the
jailer of Navarro County, was permitted to testify that during appellant’s custody in the jail he had frequently talked with him, and from such he believed defendant was sane. This bill is approved with this explanation: “Witness Curington was only introduced in rebuttal to defendant’s defense of insanity, and permitted only to testify that he had known defendant and seen and talked with him every day since the date of the homicide, and to give his opinion that defendant was sane. He did not repeat any statement of the defendant.” This testimony was admissible.
13. Bill of exceptions No. 13 shows that appellant complains of the following argument of the district attorney: “Gentlemen of the jury: The defendant is old, but this is not the first time an aged defendant has been brought into this court. Within the last year an old man whose hair was gray with age was tried and convicted in this court. His gray hair did not save him.” Appellant further states in the bill, that within the last year old man Hart was convicted in the District Court of Navarro County for rape upon a girl under age, and sent to the penitentiary for life, and said cause was removed from Limestone County to Navarro County for trial and had wide publicity, and said language was prejudicial to a fair and impartial trial for this defendant, and was calculated to inflame and unduly arouse the minds of the jury, to set up a convicted man’s punishment as the criterion to govern the jury. The bill is approved with this statement: “The court was writing his charge and did not hear the remark, if made by district attorney. Defendant’s counsel never prepared instructions or request to have statement withdrawn from jury, and called the court’s attention to it first in motion for new trial. Beside, defendant’s defense was insanity and his old age; was not this legitimate answer to ‘old age argument’ for State’s counsel to press for the consideration of the jury?” We do not think the statement of the district attorney was legitimate answer to the old age argument. The fact that some other old man may have been convicted is no predicate for the conviction of this man, nor ought said fact to have been alluded to, but as we understand the bill of exceptions, the court does not certify that the statement was made. In the absence of bill of exceptions properly certified to this effect, we could not reverse this case, even if it otherwise authorized same.
14. Bill of exceptions No. 14 shows that the district attorney used this language: “It is not infrequently the case that stepparents and stepchildren fall out and become enraged at each other. At this term of the court there was a case tried where the stepson had fallen out with his stepfather and imagined that his stepfather had it in for him and was working against him.” This bill of exceptions is approved with the same qualification as bill No. 13.
15. Bill of exceptions No. 15 shows that the trial of the above cause was held in a certain store building on Beaton Street, in
Corsicana, and not at the courthouse thereof, to which counsel for appellant objected for the following reasons: First, because the orders of the Commissioners Court of Navarro County are insufficient in law to legally constitute said store building the proper place to hold court, and all orders pertaining thereto are void; second, because said storehouse was designated by a committee, and not by the Commissioners Court; and, third, because the Commissioners Court failed to designate any place for the grand jury to hold its sessions, and said grand jury held its session in a different building from that designated for a courthouse and found the bill against defendant in this case while holding its sessions in such different building. The court, in approving this bill, says: “The question was raised for first time on motion for new trial. The court finds that the order of the Commissioners Court, dated March —, 1909, did properly designate and establish the courthouse of Navarro County, and the place for the ' holding of the terms of the District and County Courts of Navarro County pending the repairs upon the regular courthouse of Navarro County; said designation was not the act of any committee, but the act of the Commissioners Court of Navarro County, Texas.
“The court further finds that said orders of said Commissioners Court are not void as claimed by defendant, because same are not signed by county judge and attested by county clerk of Navarro County, for the reason that this question has been repeatedly decided against that contention. See Brown v. Ruse, 69 Texas, 589; Ewing v. Duncan, 81 Texas 230; Lillard v. State, 53 S. W., 125; Coker v. State, 53 S. W., 1117; Roper v. Scurlock, 69 S. W., 456; Davidson v. State, 44 Texas Crim. Rep., 586, 73 S. W., 808, etc.
“The court further finds that the county Commissioners Court of Navarro County, and' the sheriff of Navarro County, designated the place for the grand jury to hold its sessions, and provided it properly for that purpose. Every bill of indictment found by said grand jury, and the particular indictment against the defendant in this case found by said grand jury, was presented in open court, in the District Court room of Navarro County, Texas, with a quorum present. And that said room so" designated and provided and furnished to said grand jury, was the most convenient and suitable for their use to be had.” We hold that appellant’s bill of exceptions is not meritorious, and the court and grand jury sat at a place properly designated by law. Appended to the bill of exceptions is the order of the Commissioners Court, which is in due and proper form as suggested by the court. We do not deem it necessary to copy same.
The evidence in this case clearly supports the verdict. The charge of the court is a proper presentation of all the law applicable to the facts of this case.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING.
June IS, 1910.